A further extension of the state of emergency would be illegitimate (by Becchi and Palma)
Article signed by Paolo Becchi and Giuseppe Palma in Libero of 26 September 2020:
January 31. The Council of Ministers approves the state of emergency lasting six months, until July 31, 2020. These are the days in which images of a deserted Wuhan arrive from China, with its inhabitants in quarantine due to the Coronavirus. The Italian government, which was aware of the problem at least since January 5 (there is a document from the Ministry of Health that already speaks of "pneumonia of unknown etiology – China" on that date), does nothing until the end of the month, when the state of emergency and blocks direct flights with China. The duration of the state of emergency is regulated by Legislative Decree no. 1/2018 which in art. 24 governs the state of emergency of national importance, providing that the decision is taken by the Council of Ministers for a duration not exceeding twelve months, which can be extended for no more than a further twelve months. A modification with respect to the original provision introduced by Law no. 225/1992 which instead provided for the declaration of a state of emergency for a maximum of six months, which could be extended for no more than a further six months.
On 29 July, two days before the expiry of the state of emergency, the Council of Ministers resolves its extension on the national territory until 15 October 2020 , obtaining "authorization" by Parliament through a majority resolution. Conte could have avoided this step because even the extension is the exclusive competence of the Council of Ministers, but a part of the Pd and Italia Viva had demanded parliamentary scrutiny. That resolution, moreover, placed rigid stakes on the government, such as that of using the power of ordinance only to facilitate the opening of schools, implement health tools and make social ones effective.
At a first reading of Legislative Decree no. 1/2018 it would appear that the Council of Ministers can, at its discretion, establish a state of emergency as a whole for a total of twenty-four months, with an unlimited number of extensions within both the declaration and the extension act . But is not so. The declaration of a state of emergency serves, in fact, according to the different stages and intensity of the emergency itself, to suspend the ordinary legislation in order to use the power of ordinance : there is the emergency and we must face it, therefore the power ordinary gives way to the extraordinary. The point is to understand if this is possible to use extensions at will for a total of two years.
We believe it is not possible . The declaration of the state of emergency, and possibly its extension, both adopted by resolution of the Council of Ministers, are administrative acts that can be issued only in the presence of the requisites provided for by art. 7 of the same legislative decree of 2018 , it is worth mentioning the existence of " emergencies of national importance connected with natural disasters or deriving from human activity which, due to their intensity or extent, must be immediately faced with extraordinary means and powers to be used during limited and predefined periods of time […] ”. “ Limited and predefined periods of time ”, we want to insist on this. If the Council of Ministers declares a state of emergency for a period of six months, even though it can declare it for twelve, the possibility of using the additional six months connected to the declaration has been "gambled". The same goes for the extension, also scheduled for a further twelve months. In our case, the Council of Ministers issued the extension resolution – even on parliamentary resolution – for only two and a half months, until October 15, 2020, so the remaining part required by law was "played". Can Conte therefore, as he has already made known, make a new extension until 31 December or 31 January?
In our opinion, no. The " limited and predefined periods of time " referred to in art. 7 of Legislative Decree no. 1/2018 include the " principle of mandatory nature " of the administrative act which, as established by the third section of the Council of State, to be valid must comply with the legal paradigm regarding the essential elements, the purposes to be pursued and the action to be used, for which derogable action rules are not conceivable (judgment no. 4364/2013). This means that, within the range of action of the declaration of the state of emergency and its extension, no derogation actions, not even temporal ones, can be carried out.
Of course, it will be said that the Council of Ministers can declare a new state of emergency, that is an administrative act from scratch such as that of January 31st, but at that point the requirements for the declaration must exist as established by art. 7 of Legislative Decree no. 1/2018. From February to today, the number of beds in intensive care has more than doubled (from five thousand to more than eleven thousand), the effective treatment of plasma has been discovered, therapies have been identified that prevent the deaths of the first days of March. But not only. To date, there are just over two hundred people hospitalized in intensive care and the deaths are below thirty units a day, so there is no longer an emergency from Covid19.
It is true that in the last seven months the government has been able to do everything it wanted by derogating from the rule of law without neither the Quirinale nor the Parliament speaking, but it is also true that Parliament can now – in the absence of an emergency with the characteristics outlined by Legislative Decree no. 1/2018 – play its oversight role over the government by preventing it from acting as it pleases.
by Paolo Becchi and Giuseppe Palma in Libero of 26 September 2020.
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Literary Tips:
by Paolo Becchi and Giuseppe Palma, “ DEMOCRACY IN THE QUARANTINE. How a virus has swept the country ", Historica edizioni, April 2020.
Here the links for the purchase :
http://www.historicaedizioni.com/libri/democrazia-in-quarantena/
https://www.libreriauniversitaria.it/democrazia-quarantena-virus-ha-travolto/libro/9788833371535
https://www.amazon.it/Democrazia-quarantena-virus-travolto-Paese/dp/8833371530/ref=sr_1_1?__mk_it_IT=%C3%85M%C3%85%C5%BD%C3%95%C3%91&dchild = 1 & keywords = democracy + in + quarantine & qid = 1593533348 & s = books & sr = 1-1
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The article A further extension of the state of emergency would be illegitimate (by Becchi and Palma) comes from ScenariEconomici.it .
This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/una-ulteriore-proroga-dello-stato-di-emergenza-sarebbe-illegittima-di-becchi-e-palma/ on Thu, 01 Oct 2020 17:00:11 +0000.