11.04.2020 – 14.32 – Italy is living a health emergency. Everyone knows it.
Formally, this status was declared by a resolution of the Council of Ministers on the 31st January 2020.
From that date onwards we have been literally overwhelmed by measures of every kind: decree-laws, Prime Minister’s decrees, decrees of the various Ministers, ordinances of the Presidents of the Regions and the Mayors of the Municipalities.
Given that the health of the citizen was in danger, everyone wanted to have their say with the effect of generating a sense of widespread fear among the people.
Fear of contagion, fear of fines, fear of getting too close to others, fear of those who do not wear surgical masks. The fear of the Coronavirus has pushed the Government to adopt more and more stringent arrangements, even if the progressive regression of the contagion would lead to the opposite behavior: more freedom and fewer constraints.
Fear is the worst that a civil society can be afraid of, because it prevents us from thinking by obscuring people’s minds: turning us into puppets and servants of those who govern us. Most of us have accepted all the prohibitions that the government has imposed on us, preventing us from taking walks, doing sports, going to church.
Everyone must stay home: this is what we are told on a daily basis. Our health is at stake and everything else does not matter.
That sounds convincing. But when you think about it, something doesn’t add up.
First of all, the restrictions are attacking our rights. They are called civil liberties: personal
liberty, freedom of movement, freedom of assembly, freedom of association, freedom of religion.
These are rights written into our Constitution, which is the most important legal document in a country. They are defined as inviolable, because they are so important that no one can sacrifice them except to protect other rights that must be just as important.
That is why any restriction of freedoms must be established by a law of the state. This has been decided in order to protect all the citizens of a country. As the Constitution was written there was still the memory that in the previous twenty years freedoms had often been violated, even by mere administrative acts. In short, who wrote the Constitution wanted that none of the succeeding governments could take the “freedom” and impose illegal restrictions and limitations on citizens.
For example, personal freedom (the freedom to move wherever I want and to see who I want, Article 16 of the Constitution) enjoys total protection, because in order to be able to prevent a person from moving from home there must be a law written by a Parliament that establishes precisely the “cases” and “ways” of any restriction to the same; and if I am prohibited from going out I must have the right to go to a judge to defend myself (reservation of jurisdiction).
The choice to limit all our freedoms with a decree of the President of the Council (or with an order of the President of the Region) sounds bad, not convincing.
Due to the health emergency, our government has decided to take every decision concerning it, bypassing the Parliament. More precisely: it has issued decree-laws (i.e. government regulations that must then be approved by Parliament), which have transferred to the President of the Council of Ministers the power to decide what restrictions to impose on people and how to implement them.
Basically, one and the same subject (the Government) is setting the rules to be respected (Legislative Power) and then gives orders for these rules to be respected (Executive Power).
Of the three powers of the State (legislative, executive, judicial) our Government is managing two.
And even that doesn’t convince, it sounds bad.
In short, only a state law can limit our freedoms: therefore, it is at least doubtful that a decree-law can do so, given that the respect for inviolable rights doesn’t sit well with the urgency of a decree written in haste by the government.
And then a decree-law (which is a provisional regulatory act pending its approval by Parliament) cannot, as it has been done, attribute to another subject (in our case the President of the Council) the power to decide which restrictions impose on citizens.
It cannot: because the Law n. 400/1988, which regulates the powers of the Government, establishes, for the compliance with art. 77 of the Constitution, that every decree-law must already be precise and of immediate application.
But the decision to make us all stay at home by virtue not of a law, but of simple administrative acts (decrees of the President of the Council, ordinances of the Region), prevents us from asking a judge to annul such acts because they are contrary to our freedoms.
The judge who should decide on the violation of our rights is the Constitutional Court: but this body can judge the legitimacy of laws, it cannot annul administrative acts.
In short, we have come to a paradox: with these decrees of the President of the Council which are not laws (like required by the Constitution), which Parliament cannot approve and which not even the President of the Republic, the guarantor of our Constitution, can censure they have taken away our freedom to take a walk.
But then: does the protection of the citizens’ health justify everything? And who tells us
that these are the right measures? That they are proportionate measures?
The Constitution says that our freedoms are inviolable and that only a precise and detailed law can limit them: but then a decree, an act that is not a law, can tell us all to stay home? It is unthinkable to consider only the indispensable people worthy of leaving home: health personnel, authorized shopkeepers, banks and insurers, people who go shopping only for food and medicine and hygiene materials, dog owners, smokers and readers of newspapers in paper form.
In reality, with the necessary precautions, those who have to work to bring their bacon home, those who care about the psychophysical health of their loved ones and those who believe that, in addition to the body, the mind should also be nourished.
Michael Guggenbichler translation
