Fasone, Cristina

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Coping with Disloyal Cooperation inthe Midst of a Pandemic: The ItalianResponseCristina Fasone 2021-03-08T09:00:40IntroductionThe activity of the coalition Government between the Five Star Movement (5SM),the Democratic Party and other centre-left junior allies to tackle COVID-19 hasbeen praised by some and severely criticized by others. Looking back at this firstyear of pandemic, a crucial problem of the Italian management of the disease andthe related economic and social crises has been the lack of loyal cooperation; aprinciple entrenched into the Constitution (Art. 120, second para, Const.), withregard to the relationship amongst the different levels of government. The lack ofsincere cooperation, however, has gone well beyond the (mal)functioning of theregional state and has also affected the relationship between the Government andthe Parliament, amongst political parties, even within the governmental coalition, andhas ultimately impaired the trust of citizens in the institutions (as further confirmed bythe approval, with an overwhelming majority, of the constitutional reform to reducethe seats in Parliament from 630 to 400 deputies and from 315 to 200 senators atthe referendum of 20-21 September 2020).The State of Emergency and the Worsening of theLegislative-Executive ImbalanceThe state of emergency was firstly declared by the Council of Ministers with noinvolvement or discussion in Parliament on 31 January 2020 (Art. 24, LegislativeDecree no 1/2018). Since then, upon deliberation of the Council of Ministers, ithas been postponed three times, the last one, so far, on 13 January 2021 and isexpected to last until 30 April 2021 (on the maximum length and the prorogationof the state of emergency, see here). The state of emergency ensures wide rule-making powers to the Government, not just within the Council of Ministers – forexample many were the orders adopted by the Minister of Health – but also on itsserving administrative apparatus, like the Department of Civil Protection. Althoughthe Constitution does not directly regulate the state of emergency, it identifiesspecific tools for emergency situations (Art. 77 Const.): Decree-laws are temporarymeasures adopted by the Government “in case of necessity and urgency” that losetheir effect retroactively if they are not converted into law by the Parliament withina 60-days deadline since their publication. Since the initial declaration of the stateof emergency and by the end of 2020 no fewer than 18 decree-laws have beenadopted by the Council of Ministers. While the abuse of decree-laws goes back- 1 -to the 1990s and the Parliament has never hesitated to heavily amend them, theirsize, the overall number, and the quick conversion into law, in order to enable theadoption of further executive measures, have significantly strengthened a trendtoward the marginalization of parliamentary deliberation.The Government has tried to push parliamentary procedures to the extreme oflimiting the discussion and voting in the plenary and the bicameral nature of thelegislative process, whereas the Chamber of deputies and the Senate enjoythe same law-making powers and authority in conferring and withdrawing theconfidence to the executive. During the pandemic, the constitutionally disputablepractice of adopting key governmental measures – like decree-laws and budgetbills – through maxi-amendments (amendments composed of one article andthousands of paragraphs, replacing the entire text of the bill) combined withquestions of confidence triggered by the executive has been systematically used.As a consequence, the voting of the bills in the plenary article by article, as it shouldbe, has been inhibited. The severity and urgency of the situation has also compelledthe two Houses to speed up the legislative process consolidating a sort of “hidden”unicameralism. The House were a decree-law or a bill is first introduced is able toexamine and amend it; the House intervening as the second in the order tends topass it as it is in a few days (or hours) with almost no scrutiny.Protection of Fundamental RightsBesides the many decree-laws enacted to tackle the health and the economicemergency, 17 decrees of the President of the Council of Ministers (d.P.C.M.s) anda plethora of orders by the Minister of Health and by the Head of the Department ofCivil Protection (in addition to all the orders of regional and local authorities) wereadopted last year. This paved the way to an abnormous body of legal instrumentsdealing with the pandemic, often repealing or replacing in sequence those thathad been previously adopted. Many of these measures have deeply affectedfundamental rights: to health care, privacy, freedom of assembly, religious freedoms,free movement, right to education, freedom to conduct a business. Yet, only someof them are legislative acts or acts having the same rank as legislation, like decree-laws and legislative decrees, the latter passed by the executive upon delegation bythe Parliament.There is no unanimous agreement on the ability of such decree-laws and legislativedecrees to fulfil the constitutional requirements set to restrict fundamental rights asdomains reserved to (parliamentary) legislation (see e.g. here). Even more disputedis the circumstance that d.P.C.M.s and ministerial orders, formally administrativeacts, satisfy this condition. If contested by some (e.g. here and here), others havepointed out that overall decree-laws can intervene in the domains reserved tolegislation and have been properly used as enabling acts for d.P.C.M.s (e.g. hereand here), thereby remedying and supplementing their legal weakness. Especiallyduring the first lockdown in Spring 2020 doubts were raised on the sufficient clarityand precision of the “enabling” decree-laws (in particular, the first one, no. 6/2020)for the legitimate adoption of the subsequent d.P.C.M.s imposing severe restrictionson personal freedoms. Moreover, despite their highly sensitive contents, until the- 2 -adoption of Decree-Law no. 19/2020 (Art. 2) no involvement of the Parliamentwhatsoever was envisaged on d.P.C.M.s and, even later, parliamentary scrutinyhas remained marginal, on measures that had been already pre-packaged bythe executive. Nor constitutional review of legislation can be carried out by theConstitutional Court on d.P.C.M.s given their nature of administrative acts, if notindirectly targeting the relevant enabling decree-law.Till recently the proportionality of the executive measures could not be easily subjectto parliamentary and public scrutiny either, as the ground for their adoption – theevidence and transcripts of the meetings of the scientific-technical committee, a non-partisan advisory body of the government composed of experts – was not disclosed.The publication of the verbatim reports of the scientific-technical committee and thepossibility for the Parliament as well to acquire the information needed from thiscommittee could signal a renewed collaboration between the legislature and theexecutive.A Regional System Out of ControlThe complex functioning of the State-Regions relationship during the pandemic hasbeen a real test bench for the Italian regional system. From February to April 2020,after hearing the Presidents of the Regions, the Government adopted incrementallyrestrictive measures evenly affecting the entire territory through a national lockdownalthough only the North of Italy was hit by the disease. Since the end of October, thespread of the disease throughout the country has requested a more tailored-madeapproach by the Government according to the territorial situation (i.e. the Rt index inthe regions and the regional health care assistance guaranteed).Regions enjoy shared legislative competences with the State on crucial subjectmatters like the protection of health (Art. 117, third para Const.), save for thebasic level of health care assistance under the exclusive competence of the State(Art. 117 Const., second para, lit. m), and education (Art. 117, third para Const.),except for the general provisions. During the pandemic this has translated intoeven more asymmetric guarantee of these basic rights as soon as the nationalrestrictive measures were released before the summer. Some regional health caresystems were more under stress than others and the schools, both at primary andsecondary level of education, re-opened with teaching in presence in most Regionsin September, but not in all of them (like Campania and Puglia, upon unilateraldecision of the President of the Region). In theory, the central Government couldstep in to enforce exactly the same measures on the whole territory by using itsexclusive competence on international prophylaxis (Art. 117, second para., lit. q),which appears well fit for a pandemic. Likewise, in compliance with the principles ofsubsidiarity and of loyal cooperation, the State could exploit its power to substituteitself to Regions and municipalities (under Art. 120 Cost.). Such a “centralistic option”was not the one followed over the last few months.The Government has used its competence on international prophylaxis and to setthe fundamental principles in matters of health to fix a common regulatory frameworkwithin which the concrete daily administration of the epidemiological emergency- 3 -rests upon the Regions. In any event, according to Decree-Law no. 19/2020 thePresidents of the Regions were authorized to adopt more restrictive measurescompared to the State under the circumstances foreseen by the same Decree-Law and when witnessing a serious deterioration of the health care risk in theRegion; such regional orders, also in agreement with the Minister of Health, keptbeing applied although, in principle, they would have lost their effects following theadoption of the next d.P.C.M. (d.P.C.M. 10 April 2020).This system of “governance” has remained in place even when the d.P.C.M of3 November 2020 divided for the first time the country into three areas (yellow,orange and red) depending on the level of epidemiological risk of each Region, everyarea having its own corollary of restrictive measures. Within a common regulatoryframework, which for example fixes a national curfew at 10pm, Regions can shiftfrom one coloured area to another depending on COVID-19 data collected andtransmitted to the central government. The mapping of Italy by area of risk (still inforce, with some revisions), however, has not decreased the tension between Stateand Regions, the latter often adopting milder or stricter measures, also depending onthe political convenience.What’s Next?The orders of the Presidents of the Regions have repeatedly come under thereview of regional administrative tribunals for departing, without due reasons, fromthe national regulatory framework, with more restrictive (see the decision of TARMarche no. 56, 27 February 2020) or with looser provisions (see the decision of TARCalabria no. 841, 9 May 2020). The derogation from the national rules by Regionshas even been solved in opposite ways by administrative judges within the sameregional territory (see the decree of TAR Puglia, Bari, no. 680 of 6 November 2020and decree of TAR Puglia, Lecce, no. 695 of 6 November 2020).Remained at the margin of the political struggle between State and Regions as wellas between the Government and the Parliament, due to the design of the access toconstitutional adjudication, the Italian Constitutional Court has nonetheless ensuredthe continuity of its proceedings and recently has been given the opportunity to stepin for the first time on the measures to contrast the pandemic. In the frameworkof a constitutional challenge introduced by the national Government against Lawno. 11/2020 of Aosta Valley, one of the five Italian Regions with a special statute,on 14 January 2021 the Constitutional Court first ordered the suspension of theeffects of the regional law as an urgent matter (order no. 4/2021) and, then, on 24February 2021 declared unconstitutional the regional legislative provisions violatingState legislation, clarifying that the State exclusive competence on internationalprophylaxis grounds the legislative authority of the central level of government incontrasting the pandemic (compared to other competences, e.g. health protection,which would have granted a more significant role to Regions). While the judgmenthas not yet been published (see the press release), the Court pointed out in theorder that the diversification amongst regions of the response to the pandemic isnot prohibited per se. Yet, it has to occur in compliance with the principle of loyalcooperation.- 4 -It is precisely this constitutional principle – expressly emphasized also in the lastannual Report by the Italian Constitutional Court’s President – that has been themost neglected during the pandemic, while the unprecedented emergency thecountry is facing would have required a much more genuine collaborative efforton the part of State and Regions but also in the inter-institutional relationship atnational level between the executive and the Parliament and within the governmentalcoalition itself.With the fifth biggest death toll worldwide and the mass vaccination that is onlystarting now, the governmental crisis declared on 26 January, following thewithdrawal of the support by a small coalition partner, Italia Viva, led by theformer President of the Council of Ministers, Matteo Renzi, took many by surpriseand disoriented. One of the reasons put forward for triggering the crisis wasthe alleged lack of a “cooperative method” inside the coalition, with a top-downapproach imposed to the allies by Giuseppe Conte with the support of the 5SM.The appointment of the former ECB President, Mario Draghi, to lead the newGovernment, formed by several “technical” Ministers (non-elected eminent experts intheir field) in key positions and by representatives of all major political groups, with acouple of exceptions, supported by an overwhelming majority in Parliament, is reallythe last call for Italy to retrieve a basic level of loyal cooperation and its premise,the sense of responsibility in the fulfillment of institutional functions, at all levels ofgovernments and by political actors.- 5 -

Coping with Disloyal Cooperation in the Midst of a Pandemic: The Italian Response

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Coping with Disloyal Cooperation in the Midst of a Pandemic: The Italian Response

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