The health emergency that Italy has been facing since the first months of 2020 shed light on the crisis of representative democracy and the free parliamentary mandate, which is not a novelty for the Italian legal system but has been definitely exacerbated by the pandemic. A side effect of this emergency is the increasing weakness of the national Parliament not only when exercising the legislative function, but also the control function vis-à-vis the Government.
The spread of Covid-19 in Italy has in fact been managed mainly through a set of measures introduced by the national Government or by means of its administrative structure (such as the Civil Protection Department). The role of the Parliament has been minor, being basically entitled to convert into law the law decrees previously issued by the Government.
The system of the sources of law adopted, even if compatible with the constitutional order in place, is certainly based on the centralization of power in the hands of the Government, and particularly of the President of the Council of Ministers, posing serious problems with regard to the relationship between the institutions of the Republic and the democracy of the entire process.
The only counterbalance to the national Government’s predominant position in the daily management of the health emergency comes from the subnational level.
Since the constitutional reform of 2001, health protection is a shared competence between State and Regions (art. 117 Const.). This means that the State sets the fundamental principles and goals of the health system and allocates national funds to the Regions, while these last ones are responsible for organizing and delivering health care on their territory. Municipalities are responsible to deliver health services at local level.
Regional presidents have the power to issue ordinances in the field of civil protection whenever an emergency in health matters occurs (according to Law 833/1978 introducing the National Health System – NHS – and the legislative decree 1/2018 – so called Code of Civil Protection). The same can be said if considering Mayors who have the power to issue urgent and necessary ordinances having effect for their respective territory in case of local sanitary or public health emergency (according to, other than the abovementioned NHS Law, the legislative decree 267/2000 – so called TUEL).
Over the past months, the predominant position of the national Government measures against regional and municipal ones has clearly emerged. This is manifested mainly in the rule of prevalence of state provisions in case of conflict with regional/municipal ones; furthermore, regional and local provisions have not a wide-ranging spectrum, but can only be enacted to face specific, territorially limited situations.
Although these limitations, regional presidents issued a huge number of ordinances even going beyond the restrictive measures adopted at national level. Some of these ordinances have been suspended by regional administrative courts on the appeal of the Government, others with the same content have not. The same can be said if considering Municipalities: Mayors issued ordinances for their territory even going beyond their powers.
In both cases, the consequence has been the deterioration of the relationship with the State, the lack of coordination among national and regional/local measures and, consequently, the increasing uncertainty in the general legal framework.
Notwithstanding the attempt of the national Government to remodulate the power of Regions and Municipalities with the final aim to guarantee an organic emergency management and, above all, its coordinating role, legal and operational incongruencies are still present. Despite the efforts, the principle of loyal cooperation which should permeate the State-Regions relationship has not successfully implemented, and conflicts still arise (see, for example, the decision of the Constitutional Court to suspend the efficacy of regional law n. 11/2020 of Valle d’Aosta which introduced less restrictive measures compared to the national ones).
The new Government of Mario Draghi de facto reaffirmed the coordinating role of the State, especially with respect to the organisation of the vaccination campaign. At the same time, he recognized the importance of Regions and Municipalities in order to tailor solutions to the territorial needs and called on them to take up responsibilities, for example when delegating to presidents of Regions having a high positive rate the decision to close schools.
Regardless of their effective room of manouvre, if we look at the role plaid by subnational institutions in this emergency what strikes more is the shift of power from representative assemblies to monocratic actors (although directly elected).
At regional level, it is a phenomenon started after the constitutional reform of the end of the ’90 (constitutional law 1/99) when regional presidents got relevant powers once attributed to the regional assemblies as well as direct legitimation based on popular vote. This growing importance of the so called “regional governors” coincided with the gradual collapse of the party system started with Tangentopoli. Similarly, Mayors got more powers according to the abovementioned TUEL, the legislative decree on local authorities.
In the most recent years, this trend grew in importance supported by the media that recognized regional and local leaders as fully responsible for the intermediate level of government, gaining a national and sometimes even international visibility.
The management of Covid-19 confirms this tendency: what is done at national level is replicated at regional and local level. Restrictions to personal freedoms and rights have been implemented mainly by means of legal acts produced by the presidencies without participation of the assemblies, and this pose many doubts on the democracy of the entire process.
Although urgency justifies massive Government intervention at all levels, it is entirely legitimate to investigate the scope of which the compression of individual freedoms can reach without the active involvement of the representative bodies. The state of emergency is not per se sufficient to avoid the fundamental principles of the Italian legal system such as the principle of democracy and the principle of separation of powers.
The Covid-19 emergency has revealed the main weaknesses of the Italian legal system and, for sure, among the legacies, a better balance among the state institutions should not be neglected by the future political agenda.
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