In this post, I first offer an essential account of how Italy has dealt with the Coronavirus outbreak. I then discuss the main points of controversy raised by public law scholars about the government response, before concluding with reflections on the broader debate about democracy and constitutionalism in times of global emergency.
A crucial starting point is that Italy, in contrast from other European jurisdictions, does not have a constitutional state of emergency clause. The constitution only contemplates a “state of war”, declared by the President of the Republic, that the Parliament must deliberate to confer the necessary powers to the government. On 31 January 2020, however, the cabinet declared a state of emergency pursuant to the law on civil contingencies (Civil Protection Code: CPC), which does not necessitate Parliamentary scrutiny. Such a declaration allows ministers to adopt exceptional measures in case of natural calamities, such as earthquakes and floods, but it is doubtful that it can contemplate the constraints on liberties necessary to face epidemics or pandemics. With the crisis worsening, the country has in fact been “locked down” since the end of February through Prime Minister’s orders (PM’s decrees), in turn authorised by a so-called law-decree (decreto-legge), which has de facto (if not de jure) replaced the CPC state of emergency.
The constitution empowers the government to issue a “decree having force of law” (law-decree) in case of “necessity and urgency”. If it does so, the government must immediately submit the decree to the Parliament to start the process of “converting” (conversione) it into statutory law. If the Parliament fails to do so within 60 days, the decree expires and becomes void from the start. One should bear in mind that the requirements of extraordinary necessity and urgency to issue a law-decree have always been determined politically. The Constitutional Court has shown deference in this respect until recently. To be fair, the so-called ‘urgent decreeing’ has nearly become the ordinary way of legislating in Italy. The decree having force of law has been repeatedly used in lieu of the ordinary procedure of introducing a bill as a way of exerting pressure on Parliament, often further reinforced by connecting a question of confidence in the cabinet to the introduction of the decree for ratification. It is clear that by not transposing the decree into statutory law, the majority in Parliament would risk a cabinet crisis. This is one among many hints of the prominent position held by the cabinet over the Parliament. It is uncommon, if not unprecedented, though, that a law-decree is used, as in the current situation, to delegate to the government, ministries, and public administration a consistent bulk of powers encroaching upon rights to liberty.
As mentioned, the lockdown has been established by combining the effects of an authorising law-decree (presently the last one promulgated on 26 March) and a Prime Minister’s decree to be updated no later than every thirty days until 31st July 2020, as established by the sunset clause. The former enacts several types of measures that the latter may want to implement, such as the limitation of personal mobility, up to the obligation to stay home unless there are justified reasons to go out; closure of roads, parks, and other public spaces; quarantine for persons who have had contact with infectious people; prohibition of meetings, gatherings, sports events, cinema and theatre shows, religious liturgies, funerals, etc.; limitation or suspension of trade, business, transport, public services, schools, and universities, etc. It is worth briefly comparing this framework with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as amended) (Reg 6) which provide that “During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse” and lists several examples of such excuses (see also the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8) to equivalent effect). From a substantive viewpoint, the latter are by and large similar to the said measures provided in the Italian law-decree. However, while this empowers the Italian executive to further articulate specific prohibitions, bans and obligations of conduct, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 establishes a general ban with exemptions. As explained by Jeff King, the powers of ministers in the UK to impose the lockdown are rooted in existing statutory law, namely the Public Health (Control of Disease) Act 1984.
A succession of Italian PM’s decrees have then progressively implemented the measures enacted in the law-decree in the whole country, in some cases tightening them in relation to the worst affected areas (so-called ‘red zones’). It is fitting to add that the first law-decree (of 23 February) contained a vaguer delegation of power to the government and unspecified ‘competent authorities’ and even a blank-cheque authorisation to issue whatever measure might be necessary. Article 2 read that the “competent authorities can enact further measures of containment and management of the emergency to prevent the diffusion of the epidemy from COVID-19 even beyond that provided for in Article 1, paragraph 1” [which enacted the types of measures to implement]. The present law-decree (of 26 March), on the one hand, has repealed the latter clause, but on the other hand, has elevated to statutory rank measures that had been introduced by the PM’s orders under the previous law-decree.
A constitutional crisis?
Does the legislative process described amount to a threat to democracy or a constitutional crisis? It seems the absence in the constitution of a procedure to declare a state of emergency has primarily fuelled this debate. Many a commentator has evoked a Schmittian perspective. Others have tried to reconcile those exceptional powers of the executive with a war-like scenario, thereby justifying them under an extensive interpretation of the “state of war” clause. These positions look unjustified and even mystifying (Cesare Pinelli). The temporary quality of statutory law made by executive decision is justified not only by the requirements of extraordinariness, urgency, and necessity, but primarily by the fact that only the Parliament has the power to make that decision a law for good. Parliament can also amend it as it likes. In fact, the constitution states that the Parliament, even if dissolved, must meet no later than within five days to read the bill deriving from the law-decree itself, which the government issues “under its own responsibility”. It is, in other words, always the Parliament that has the last word regarding limitations to individual rights and liberties by legislating in a way that effectively fetters the regulatory powers of the cabinet. Article 16 of the Constitution, for example, determines that every citizen has the right to travel freely in any part of the country, except for such general limitations as may be established by statutory law, which can, in turn, delegate ‘secondary sources’ of law, for reasons of health or security.
If we look at the works of the constitutional assembly (1946-48), we see that the provision on law-decrees, absent in the first draft, was eventually introduced in the text of the constitution after a vigorous debate, in which some eminent legal scholar MPs were utterly against giving the government such legislative powers (e.g. Constantino Mortati). Piero Calamandrei, possibly the most renowned legal scholar constituent, held it necessary to discipline law-decrees in the constitution to avoid ‘black holes’ and a de facto use of normative powers by the executive, a sort of bona fide constitutional basis for action in an emergency. It is significant that to buttress his argument he joked about the impossibility of prohibiting in the constitution earthquakes and natural calamities. That was the magnitude of the events the constituent Fathers contemplated when discussing such ‘extra-ordinary’ governmental powers. It is no wonder, then, that they debated them alongside such conundrums as the ‘state of exception’ and the ‘state of siege’.
Instead, the argument that a law-decree lacks constitutional legitimacy in the present crisis stems from the fact that it has become used regularly in ordinary circumstances. In other words, we are so accustomed to considering the use of law-decrees by the government not that extraordinary after all that now, facing a truly extraordinary case, we look for something more exceptional than a ‘mere’ law-decree. As, however, the constitution provides for nothing more exceptional, except for the state of war, then (the reasoning goes) here a gap in the constitutional fabric is. The problem with this argument is the formalistic attitude taken towards the constitution as a legal document. An alternative, normative stance which conceives of the constitution as posited law embodying a set of values and principles tends as much as possible to reconcile such idiosyncratic events with the constitution. We can trace such an attitude to the family of theories called positivism. We can find an example of this approach – with which I sympathise – in the idea expressed by Massimo Luciani that the legitimacy of the current extraordinary measures is rooted in the constitution, in light of certain underlying principles, such as the principle salus rei publicae (the safety of the state), inferable from the provisions regarding the unity and indivisibility of the Republic. It is, instead, the constant paradox of anti-positivistic theories to presuppose a quite thin and ‘formalistic’ concept of the constitution.
The same history of the response to the outbreak can be told as the constitution at work. The first law-decree of 23 February 2020 – eventually transposed into statutory law by the Parliament – contained a large delegation to the government to do “whatever it takes” to deal with the spread of COVID-19. The new decree of 26 March, after a widespread reaction in public opinion concerned with respect for the constitution and the rule of law, has repealed that open-textured clause and substituted a better, more precise legal basis for the lockdown measures. This shows that we were (and possibly still are) concerned with a ‘usual’ question of the lawfulness or unlawfulness of legislation – with the ordinary judicial guarantees formally in place – and not a suspension of the constitution.
… Or a long constitutional decline?
Is everything fine then? Not at all. This crisis has definitely laid bare the weakness of party politics and the role of Parliament. What is a matter of concern is not the use per se of the sequence of law-decree and PM-regulation for introducing the lockdown legislation, but the ephemeral participation in the process of the highest venue of our representative democracy. Parliamentary democracy has hit a new low. While our MPs, majority and opposition, should endeavour to exercise to the greatest extent their responsibility to control the executive and hold it to account, the Houses are barely functioning. The response to the Coronavirus threat was to shut down the Parliament, save for gathering to vote on the law-decrees. As has been remarked by Gaetano Azzariti, it is unthinkable that the most essential safeguard of democracy is locked down differently from other essential services, such as hospitals, pharmacies, food stores, and even tobacconists. In this situation, it is almost ironic that the law-decree of 26 March provides for the PM to communicate to the Parliament the successive measures enacted by the following day, and then to refer them to the Parliament every 15 days after that.
The point is that we have been seeing the climax of a long trajectory of undermining Parliamentary democracy more than a sudden constitutional anti-climax. The ongoing narrative of the world after Coronavirus as a rebirth, the metaphor of the Phoenix, should be adopted for our constitutional democracy too. Another tenet of legal positivism, as I see it, is that legal constitutionalism needs a robust injection of political constitutionalism. Parliamentary democracy, the system that the constitution entrenches, cannot work without fighting, among other things, against the trend – a by-product of global neoliberalism – of marginalising the institutions of representative democracy in favour of executive power.
Stefano Civitarese Matteucci is Professor of public law at the University of Chieti-Pescara (It), and honorary visiting professor 2016-2021 at the York Law School
The author thanks Francesco Bilancia, Michael Gordon, Jeff King, and Giorgio Repetto for comments.
For a detailed description of the measures enacted see this post by Diletta Tega and Michele Massa https://verfassungsblog.de/fighting-covid-19-legal-powers-and-risks-italy/. On the general discussion referred to in the post these are the main sites (in Italian): Federalismi; Biodiritto; Diritti regionali; Astrid.
(Suggested citation: S. Civitarese Matteucci, ‘The Italian Response to Coronavirus and Constitutional Disagreement’, U.K. Const. L. Blog (30th April 2020) (available at https://ukconstitutionallaw.org/))