29.04.2020 – 12.37 – From the point of view of constitutional rights, after his last televised speech with little room for questions and a few inappropriate answers to journalists, things don’t seem to be going very well for Prime Minister Conte.
There is an increasing number of protests (and this time scholars of constitutional law, jurists and lawyers are also setting in motion) against the Prime Minister’s decrees, defined as “discriminatory and illegitimate”, especially on the point concerning travel and religious celebrations (but complaints are also rising against the ban, for example, on meeting a friend).
The decree of April, 26th, brought the hypothesis of constitutional illegitimacy to the forefront, which according to those who understand it has good arguments in support of it.
Some of which include the decisions taken shortly before publishing it, the control methods put in place and of the sanctions for those who, at the discretion of the verifiers, violate the prohibitions established by Giuseppe Conte; prohibitions which should regulate the gradual resumption of activities: Antonio Baldassarre, former president of the Constitutional Court, described the Conte decree as “totally unconstitutional” and accused the president of the Council of “authoritarian thinking”: the ‘relatives’, according to Baldassarre, are not to be identified only with the family, those included in this definition should be significantly more. There has already been talk of ‘partners’ and the successive openings of the Government regarding them. On the social networks, the identification by the authorities of the ‘partner’ as a ‘person with whom one has a stable relationship’ has already made one smile (let us imagine the verifiers of the police forces intent on investigating the number and frequency of the relationships of the citizens, perhaps through Facebook).
Strong criticism has been raised about citizens’ right to equality, such as not being able to visit a friend, stressing that many people left alone in life can only find comfort in this and that it is impossible to visit even an unrecognised or non-biological child with whom one has a strong bond (these are situations that exist).
Funerals with 15 people and the ban on celebrating Mass also infuriated the Italian Episcopal Commission. “The limitation to relatives,” Baldassarre stressed, “is discriminatory and illegitimate. It hides an absurd conception of families outside the current social reality”; in the decrees of Giuseppe Conte there is no room for those who have a deep and important emotional relationship, even if different from the traditional family, in short, such as de facto relationships both straight and homosexual.
For constitutionalists there would also be the shadow of something very worrying, like arbitrariness and an authoritarian attitude: which ‘taps’ can be closed is not a decision that the President of the Council and less so any technical/scientific committee can take, but Parliament.
Conte would now be taking advantage of a situation that is very serious but can hardly be defined as ‘emergency’ anymore: The Prime Minister’s decree is an individual administrative act that has no legislative basis, issued from the top of an authority and stands therefore exactly at the opposite of the Constitution.
For Baldassarre on this “there is no doubt that there is an authoritarian conception behind Conte’s ‘we allow’. It derives from the fact that the decree is an individual administrative act. It provides limits to constitutional freedoms which have no basis in a legislative act. So, if the Prime Minister regulates everything through the decree it is clear that he says: ‘I, we’. It is he who grants, from the height of his authority, what must be done”. But this – he continues – is “exactly the opposite of what the Constitution provides for the rights of the citizen, of man, of the human person”.
And in addition to the very dark shadows of unconstitutionality there is another confusion, because what Giuseppe Conte says and writes has to be crossed with the regional regulations: the region of Friuli Venezia Giulia, for example, has specified well what it means by physical activity, listing only walks, jogging or cycling: no swimming or skating, and on this the Prefect and then the Commissioner of Trieste intervened first, but in two diametrically opposed directions, one of consent and one of prohibition.
Moreover, if the rule is unclear at the outset, the work of those who must guarantee its respect becomes very difficult, and there is the risk of saying on the one hand white, on the other black: without shared opinions and prohibiting, so as not to make mistakes, anything that is not explicitly permitted. This too runs counter to the right to freedom of citizens, which is constitutionally guaranteed, making the Italian situation particularly problematic not only from the point of view of health, but also from that of fundamental rights. This situation is also being photographed in recent days by the foreign press, which is not particularly merciful towards us.
Michael Guggenbichler translation
