Not only Count 2, even the Draghi government seems willing not to abandon the instrument of the Dpcm, administrative acts without the force of law, to limit constitutional freedoms during the pandemic.
The first Dpcm of the Draghi Government, the one presented to the Chambers by the Minister of Health Speranza, contains restrictions on travel between regions, for restaurants, bars, gyms and swimming pools, as well as further restrictions in the red areas, which will be in force from March 6 to 6 April.
But as we have repeatedly underlined in Atlantico Quotidiano , since last March, our Constitution does not allow for such restrictions to be made by resorting to a secondary source of law such as the administrative act.
We start from an essential premise: in our Constitution there is no express provision for a state of health emergency. Many "defenders" of the Contian Dpcm claimed their legitimacy pursuant to art. 78 of the Constitution, but the latter establishes the possibility of the government to assume extraordinary powers under two conditions: “state of war” and through the necessary parliamentary passage that outlines the temporal limits of these powers.
The general rule of our Constitution is the prohibition for the executive power to adopt decrees having the force of law pursuant to art. 77 of the Constitution: “The Government cannot, without delegation from the Chambers, issue decrees that have the force of ordinary law”.
Without prejudice to the general prohibition, art. 77 provides that in extraordinary cases it is possible for the government to adopt acts having the force of law, but only through the use of decree-laws (in cases of necessity and urgency, to be converted into law by Parliament within 60 days of their enactment) or decrees legislative decrees (implementing decrees of a prior delegation law approved by Parliament).
So, to recap: the Constitution tells us that constitutionally protected freedoms can be limited only with acts having the force of law. And the only acts with the force of law that the government can adopt are the decree law and the legislative decree, both of which require the necessary presence of a parliamentary will.
However, first the Count 2 and now the Draghi government have decided to regulate the restrictions by means of the Dpcm, or secondary sources of law, hierarchically inferior to the decree and legislative decree.
In light of the numerous appeals made by authoritative constitutionalists – among all the former judge of the Constitutional Court Sabino Cassese – the Parliament has tried to remedy a legally questionable situation with an amendment during the conversion of decree law no. 19 of 25 March 2020, providing for the "parliamentarization" of the Dpcm.
But it must be remembered that up until then Palazzo Chigi had adopted seven different Dpcm and implemented a generalized lockdown throughout Italy starting from 9 March.
Nor can it be argued that the legitimacy of the Dpcm derives from the law decree n. 6 of 23 February 2020, since it cannot be Palazzo Chigi to delegate extraordinary powers to itself, to then obtain the parliamentary go-ahead ex post.
Far more important than a July sentence by the Justice of the Peace of Frosinone, to dismantle this regulatory framework is the sentence of the Court of Rome which, with regard to the Dpcm, speaks of "lapsable" acts – that is, to be canceled – as they are vitiated by profiles of constitutional illegitimacy ".
The post The Draghi Government in the sign of continuity even in the abuse of the Dpcm appeared first on Atlantico Quotidiano .
This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL http://www.atlanticoquotidiano.it/quotidiano/governo-draghi-nel-segno-della-continuita-anche-nellabuso-dei-dpcm/ on Fri, 26 Feb 2021 04:53:00 +0000.