Editor’s Note: We welcome another contribution to our Assessing Emergency Powers During #COVID-19 series, focused on the Brazilian response to the health pandemic. This post gives us detailed insight into issues of transparency, management, accountability and human rights protections in a specific national context, and brings much needed attention to the rights of indigenous peoples facing a myriad of challenges in the context of the pandemic’s many intrinsic and imposed harms. Contributions have covered Hungary, Brazil, Poland, the United Kingdom, Nigeria, Mexico (see here), and Colombia.
Not only was Italy the first European country hardest hit by COVID-19, but it was also one of the most affected in the world. On Jan. 31, just one day after the World Health Organization’s declaration of an international public health emergency, the Council of Ministers (CM, i.e. the Italian government) declared a national health emergency, according to Legislative Decree 1/2018, until July 31.
The Italian reaction to the COVID-19 pandemic brings out several tricky issues. On the one side, the role of the executive and its head – especially in the limitation of personal freedoms – deserves analysis. On the other side, the relationship between different levels of government and their acts is a further matter of concern. More generally, the ongoing health crisis triggers some thoughts on the lack of an articulated emergency framework in the Italian Constitution, and whether existing tools are suitable to face contemporary threats.
Background: The Lack of an Emergency Constitution
Differently from other Western European countries, Italy does not have a clearly articulated constitutional framework governing emergencies. Following the liberal tradition and mindful of the tragic experience of fascism, the 1948 Italian Constitution does not contain any explicit provisions regarding neutral (epidemics), technical (financial crisis), or political emergencies different from war in its traditional meaning (e.g. so-called hybrid war, law enforcement operations, terrorist attacks).
Alongside Art. 78 of the Constitution, which regulates war very concisely (“Parliament has the authority to declare a state of war and vest the necessary powers into the Government”), Art. 77 of the Constitution allows the government to adopt – under its own responsibility – decrees, which have the force of law, in order to address other emergency circumstances. Pursuant to Arts. 77 and 87 of the Constitution, decree laws are adopted by the CM and issued by the President of the Republic, who orders their publication in the Official Journal of the Italian Republic.
However, these decrees – in force from the day of their publication – have to be immediately submitted to Parliament (Chamber of Deputies and Senate of the Republic) to be converted into a law called “conversion law,” within 60 days of their publication in the Official Journal of the Italian Republic. When this does not happen, i.e. Parliament does not pass a law converting the decree within 60 days, the decree law loses its effects from the time of its adoption, as if it had never existed. Otherwise, if Parliament converts the decree into law, and the “conversion law” replaces the decree as if the latter had never existed.
Looking at this procedure, one can highlight at least two forms of oversight over the CM’s decision to adopt a decree law – i.e. a source with the same legal force as ordinary law passed by Parliament – to deal with an emergency.
Firstly, the President of the Republic ensures (lato sensu) constitutional scrutiny on factual circumstances which ground the decree law. Secondly, and above all, through the conversion procedure, Art. 77 of the Constitution prompts parliamentary check over the Government’s action. Specifically, when the Parliament is called to convert the decree into law, it assesses whether the pre-conditions to resort to decree law (i.e. the existence of “exceptional cases of necessity and urgency”, e.g. floods, earthquakes, epidemics or other health emergencies) are met and whether subsequent measures adopted to face these crises are appropriate.
Actually, to emphasize the exceptional seriousness of the situation, the Constitution provides that, during dissolution of Parliament, both Houses shall be convened within five days of the adoption of a decree law by the CM.
Last but not least, decrees laws are potentially subject to the Constitutional Court’s review.
The Italian Response to COVID-19 Emergency
Turning to the current emergency, to deal with COVID-19, the Italian government has resorted to a number of decree laws. Nevertheless, and this is a tricky issue, these acts defer the adoption of measures strongly limiting personal freedoms to decrees of the (sole) President of Council of Ministers (DPCMs). Differently from decree laws, DPCMs are not issued by the President of the Republic nor converted into law by Parliament. Neither can they be challenged before the Constitutional Court. However, anti COVID-19 DPCMs restrict basic freedoms enshrined in the Constitution, including personal liberty and freedom of movement (lockdown measures), freedom to profess one’s religious belief (as masses and other religious ceremonies were forbidden), economic enterprise (due to the closure of all non-essential activities until May 3). Yet, to restrict some of these freedoms (e.g. personal liberty and freedom of movement), the Italian Constitution requires a law or an act having the same legal force, as a decree law. Anti COVID-19 DPCMs limiting such freedoms find their legal basis in decree laws, but the link between them is often vague. Decree laws adopted during the current emergency seem to give carte blanche to the head of the executive, who decides such anti COVID-19 measures; therefore, the resulting limitations of rights and freedoms are controversial.
Against this background, the executive plays a key role, with consequent marginalization of the legislature, a situation that is made worse by the fact that convening the Houses means gathering many people together, with a high risk of spreading the virus. Differently from other jurisdictions (e.g. Spain, the United Kingdom) that are resorting to remote voting systems, in Italy these solutions are regarded cautiously, as some scholars argue that they would violate the Constitution and the standing orders of the Houses.
On March 11, when the Houses had to vote on the increase of budget deficit to tackle the emergency, the heads of parliamentary groups agreed that only half of the members of each House would sit in Parliament. According to recent reports, parliamentary groups are using all spaces available (including those usually reserved for journalists) to allow as many members of the Houses as possible to be present without breaching social distancing rules. In this way, they hope to safeguard debate, which is a crucial feature of parliamentary activity.
Whilst the marginalization of Parliament and the pivotal role of the executive (rather, of the head of government) in this emergency impact on the form of government, the COVID-19 crisis has also highlighted some issues related to the relationship between different levels of government.
The Constitution (Art. 117.3) allows both the state and the regions to legislate on “health protection,” with the state determining general principles and the regions adopting detailed rules. Moreover, regions and local levels of government (municipalities, provinces and metropolitan cities) can issue regulatory and other administrative acts on the same topic (Arts. 117.6 and 118.1 of the Constitution). Law 833/1978 and Legislative Decree 112/1998 reiterate that the presidents of regional executives can issue orders on health matters.
This complex framework resulted in fragmentation of political and legal reactions against COVID-19. In many cases, regional orders introduced further (and sometimes stricter) measures than those imposed by the central government and even some mayors’ orders derogated to national measures. According to Art. 54 of Legislative Decree 267/2000, to tackle urgent situations, mayors can adopt extra ordinem orders, if they comply with “general principles,” but these tools are under intense debate.
In order to unravel such tangle of legal sources of different levels of government (especially municipalities), Art. 35 of Decree Law 9/2020 (then replaced by Art. 3.2 of Decree Law 19/2020, whose intent is to coordinate sources and avoid conflicts) deprived mayors’ orders of any effect if inconsistent with state measures. In other words, the government tried to recentralize the management of the health crisis, without prejudice to necessary coordination with the regional and local levels. Actually, Decree Law 19/2020 provides that DPCMs can be adopted on the proposal of the presidents of regional executives. Additionally, meetings among the latter and the PCM are being held over the last few days, in order to plan the so-called phase 2, when lockdown measures will be gradually eased.
Italy and the COVID-19 Emergency: What Have We Learned?
The Italian response to COVID-19 crisis allows some considerations regarding the handling of emergencies.
First, different local situations (e.g. remarkable divergences in the number of infected people in different regions or even municipalities) can explain different political and legal reactions at different levels of government. Nevertheless, a coherent coordinating action of the central government – in conjunction with other levels of government, as required by the loyal cooperation principle – is essential. This point was remarked by the President of the Republic, when he addressed Italian citizens, on March 5. Recently, it has been recalled and linked to the solidarity principle by the President of the Constitutional Court. Coordinated response is crucial to avoid dangerous fragmentation that undermines certainty of law, which should instead be always guaranteed, especially in times of stress. Not to mention potential violations of the principle of equality when different rules govern equal situations.
Second, albeit a key role of the executive is a typical feature of any emergency, the representative assembly should be able to oversee government’s activity, above all when the head of government acts (alone) as the “master” of the crisis.
Third, limiting rights and freedoms may prove necessary during an emergency, but the following caveats should be always borne in mind. Restrictions need to be provided by appropriate tools, guaranteeing parliamentary oversight; they need to be proportionate to the goal pursued; they need to be temporary, as they should be promptly loosened when normalcy is restored.
Ultimately, is this scenario telling us that Italy should consider a constitutional amendment aimed at introducing an “emergency constitution”? This very moment might not be the most appropriate time to give a definitive answer, but, for sure, this matter should be addressed once the emergency is over.