The (weak) role of the Italian Parliament in the management of the health crisis
It is interesting to observe how some terms, even technical ones, gradually become so common that they seem to have always been in everyone’s daily vocabulary. This is the case with words such as pandemic, droplet or mask, rarely used in the past and nowadays very popular all over the world.
The same applies in Italy when considering some legal terms such as the acronym d.P.C.M., which stands for decree issued by the President of the Council of Ministers and has been used so much by the Government to introduce emergency measures against the pandemic that even school-aged children refer to it in their everyday chats.
Since January 2020, the management of the health emergency in Italy has in fact been the exclusive competence of the national Government which introduced directly or by means of its administrative structure (such as the Civil Protection Department), a set of measures restricting constitutional freedoms in the name of necessary pandemic control.
From a legal point of view, the emergency has been dealt with according to a scheme that first sees the Government issue successive law decrees (adopted according to article 77 of the Constitution in cases of “necessity and urgency”) - which need to be converted into law by the Parliament in a short term (60 days) otherwise they lose effectiveness from the outset - in which specific reference is made to the above-mentioned acts, namely the d.P.C.M. These last decrees are issued by the President of the Council of Ministers afterwards to give implementation to the provisions of the law decrees themselves.
Furthermore, the head of the Civil Protection Department has been vested with the power to issue special orders, which are administrative acts entitled to derogate from the laws in force, while respecting the general principle of the legal system.
Part of the Italian scientific community, as well as some of the media, doubt the constitutional legitimacy of this practice.
The Italian Constitution lacks a specific provision offering constitutional coverage to cases of internal emergency such as the one which has occurred in recent months; the only article which relates to emergency is article 78 which however refers to the state of war and is therefore not applicable to the current situation. At the same time, there is not an organic legislation which deals with the matter, as the Codice di Protezione Civile (Code of Civil Protection) regulates the procedure for declaring the state of emergency and the type of emergency events which can activate civil protection powers, but it does not specifically define the powers that the Government can exercise under a state of emergency. Therefore, the Italian legal system lacks a general provision clarifying whether and to what extent a national institution - and if so which one - can deliberate on restricting personal freedoms in the event of an internal emergency. At the same time, most of the literature has noticed that the procedure followed by the Government in managing the emergency seems – from a strictly formal point of view – legitimate. According to the previously mentioned article 77 of the Constitution, the Government has the power to issue law decrees in extraordinary cases of necessity and urgency: no doubt that this is now the case. Furthermore, it is the law decrees issued by the Government acting as law maker, and immediately after converted into a parliamentary law, that introduce restrictions on citizens’ freedom, while the d.P.C.M. only specify their scope. Nevertheless, from the scheme adopted, the weak role of the Parliament clearly emerges, limited in fact to the approval of the laws of conversion of the law decrees which have been gradually presented by the Government to the Chambers to authorize the various d.P.C.M.
On the one hand, the need to cope with the advance of the pandemic requires the use of streamlined instruments able to provide effective responses as soon as possible. On the other, however, the marginalization of the representative assembly raises many doubts as to its compatibility with the basic principles of democracy. It is questionable whether a way out of this dilemma can be found. One could argue that the restrictions to personal freedom should have been carried out only through the law decrees which, even if they are Government issued instruments, are at least a normative act having the same binding force of parliamentary laws. On the contrary, the d.P.C.M. (as well as the administrative orders) are secondary legal sources not to be converted by the Parliament (as it happens for the law decrees) and not to be emanated from the President of the Republic. In other words, they are acts not controlled in any way, either by the Parliament, or by the President of the Republic, or by any other institution of the Republic. However, the law decrees are legal instruments very much criticized in the past for their abuse by the Government. Not to mention the fact that their continuous succession over time could also create great legal uncertainty. In recent months, attempts to find an equilibrium among the powers of the various state institutions, involved in managing the pandemic, have been made. As an example, law decree n. 19 of 2020 has provided that the Government must submit an informative to the Chambers in order to explain and clarify the terms of the d.P.C.M. which it intends to adopt. This is a positive step forward, but still it has proven to be a highly critical solution. Just think about the circumstances that the Government has often presented the informative to the Parliament shortly before, or even after, the publication of the d.P.C.M., thus nullifying any potential parliamentary action. Although urgency legitimizes massive government intervention, it is entirely legitimate to ask the scope of which the compression of individual freedoms can reach without the active involvement of the representative body. Where is the limit, to what extent can the Government - albeit on the basis of democratic legitimacy - set aside Parliament and act alone? Certainly, finding alternative solutions in this context is not easy, but there is perhaps a first aspect to be considered, namely providing a detailed justification for government decrees, which so far have been lacking. Perhaps it would not completely solve the problem of Parliament’s exclusion, but at least it would introduce an element of transparency into the system in accordance with the principles of adequacy, proportionality and gradualness of the measures that citizens would appreciate in the normally chaotic situations in which they often find themselves. An organic emergency legislation clearly indicating who has the power to do what would be equally useful. In short, the system of the sources of law adopted to manage the pandemic in Italy as compatible with the constitutional order in place, is certainly based on the centralization of power in the hands of the Government, posing serious problems with regard to the relationship between the institutions of the Republic and the democracy of the entire process.
The article was first published in Italian on the blog of the Fundación Manuel Giménez Abad: https://www.fundacionmgimenezabad.es/es/covid-19-e-provvedimenti-emergenziali-italia-il-debole-ruolo-del-parlamento-nella-gestione-della