Does the continuation of the state of emergency constitute a Vulnus in the democratic order? (From Iusinitinere)

13 December 20212 years ago babelfish

Does the continuing continuation of the state of emergency, an element not envisaged by the Constitution, damage the democratic order? According to the Ius in Itinere website, there are problems of democratic legitimacy linked to the continuous continuation, even beyond the limits of the law, of the state of emergency. Here is an excerpt from the article, rather complex.

The "extension" of the state of emergency beyond the time limit set by law. Is there a vulnerability to protect the democratic order?

“When someone (Silla first, Caesar later) thought of extending the state of emergency and had full powers confirmed over time, the dictatorship from" commissioner "became" sovereign ", and the Republic capitulated. Even today this is the biggest challenge. In fact, if we now bear limitations of freedom arranged in full and solitary responsibility by the pro tempore government in office, we do so out of necessity, having effectively transferred sovereign powers to it. Aware, however, that if, after defeating the terrible and invisible enemy, we do not return to normality, we risk falling into the darkness of the Republic ”.

(G. Azzariti, The constitutional law of exception )

The possibility of an extension of the state of emergency beyond the limit that the law provides as last and insurmountable was informally announced ; it is governed by art. 24 co. 3 of d. lgs. n. 1 of 2018 (Civil Protection Code), which prescribes that "The duration of the state of emergency of national importance cannot exceed 12 months, and can be extended for no more than a further 12 months" ), a term which coincides with the date of 31 01 2022. How is it possible, therefore, to extend it further?

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This article aims to investigate how this could be possible in the Italian legal system and whether these operations could shed light on a vulnerability in the protection of the democratic order during a state of emergency [1] .

1.Time limits: is an extension or a new declaration of the state of emergency possible? 2. The emergency temporariness in the Constitution 3. Problematic nature of the modification of the Law on the state of emergency during the state of emergency 4. Conclusions: protection vulnus ?

Time limits: is an extension or a new declaration of a state of emergency possible?

In order to be able to take advantage of an extension of the duration of the state of emergency (ie an "extension" latu sensu ), there are several ways:

A first, concerning the possibility of declaring a state of emergency from scratch ;
A second, concerning the possibility of resorting to a modification of the deadline provided by law ;
The last possibility involves not resorting to the state of emergency , but only extending the individual regulations that allow the containment of the pandemic or economic emergency.

First of all, it should be specified that an extension of the state of emergency is not unconstitutional as long as the conditions are met (protection of public health, temporariness, proportionality, motivation); since the state of emergency is governed by a law of ordinary rank, in this context it is possible to reason, possibly, of legitimacy .

The first operation, given the existence of a deadline for the state of emergency and the express provision to re-establish the previous suspended order ( pursuant to Article 26 of the same Civil Protection Code), which must be provided at least 30 days before the expiry of the state of national emergency makes this road appear illegitimate. However, the constitutionalist Cesare Pinelli, for example, claims the opposite. We want to highlight here, however, that despite the fact that the justificatory conditions for a new declaration exist and despite the absence of an express indication in the law aimed at preventing a declaration from scratch , by examining the spirit of the law, this solution would seem contrary to it. The explicit purpose of the law is expressed, in fact, in the need to provide a tool for the management of emergencies but, at the same time, it expresses the "need" to contain and define the emergency state within a perimeter established ex ante . And what would this eventuality be if not a perpetuation ( usque ad infinitum ?) Of the same emergency situation?

The second way, on the other hand, foresees to modify the same law that contains the final and impassable term, through an extension of the terms. In this case, further reasoning needs to be done. The time limit of the state of emergency is provided for in ordinary law, and it is not the first time that the terms of the duration of the national state of emergency have been changed. Originally, the law 225/1992, in the art. 5 co. 1 bis provided that the duration of the declaration of a state of emergency could not exceed 180 days, and that it could be extended for no more than 180 days; this provision was modified only in 2018, with the entry into force of the Civil Protection Code which doubled the duration and the possibility of extension ( 12 months, extendable for no more than a further 12 months). Modifying the law governing the state of emergency to modify its duration is therefore formally possible. In order for legality to be respected, it is sufficient that the extension be decided with the necessary involvement of Parliament, therefore through a primary rule. It should be remembered, however, that this time the modification of the time limits requires particular attention: this is because this would mean "modifying the rule on the state of emergency, during the state of emergency". A standard in progress therefore, a distinction not just.

What makes the feasibility of the first or second road profoundly different is the involvement of Parliament . In the "new declaration" of the state of emergency, the President of the Council of Ministers would proceed without involving the Parliament (pursuant to art. 24 paragraph 1 letter c of the Civil Protection Code); on the contrary, a modification of the maximum term foreseen by the Civil Protection Code should take place with a norm of ordinary rank, therefore passing through the Parliament. The doctrine saves the legitimacy of the feasibility of the first way through the indication of the involvement of the Parliament.

The need to involve Parliament becomes, in the emergency period, the means to be able to rebalance the centralization of powers that the executive attracts to itself by law: to ensure that Parliament remains the necessary interlocutor of the Government, in a synergistic perspective and not only subordinately collaborative, it becomes the modality that ensures compliance with the so-called " legality of exceptional periods " , because it represents the approval of the people who, through their representatives, are made aware of the decisions taken in derogation of the ordinary course of constitutional life of the legal system. This is corroborated by the fact that a normative autonomy of the executive power is not constitutionally foreseen even in the face of emergency situations (e.g. decree-law pursuant to art.77 of the Constitution, as well as art.78 of the Constitution where it is the Parliament that deliberates the state of war).

However, the Civil Protection Code does not provide for the involvement of Parliament , neither for the initial proclamation of a state of emergency, nor for subsequent extensions [11] .

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Such involvement would bring with it the difficulty of reaching a parliamentary majority, given the non-sharing, by some party forces, of the opportunity to further extend the state of emergency. And this is where the third option comes into play: that of extending only the rules necessary to contain the pandemic, without resorting to an extension of the state of emergency . In this context, we will limit ourselves to underlining how, for the purposes of the choice, the “precautionary principle” is balanced on the one hand, and the principles of reasonableness, adequacy and proportionality on the other. Although Parliament is the privileged place to reconcile the necessary balance between principles, it is useful here to recall a passage from the sentence of the Council of State: " In the consequent balancing of the most appropriate risk containment initiatives, the choice of the so-called" zero risk " enters into potential tension with the principle of proportionality, which imposes measures "consistent with the chosen level of protection" and a consequent analysis of the advantages and costs deriving from the same " .

Applying this reasoning to our analysis, it is necessary to question whether an extension of the state of emergency is proportional to the risk in progress (since zero risk does not exist): it is perhaps possible to achieve the same goal of containing the pandemic through a third way ? One could, for example, exit the state of emergency and proceed, again through a primary rule, to indicate which measures are still necessary to counter the spread of the epidemic. Moreover, part of the doctrine has expressed how it would have been sufficient, to contain the pandemic, to resort to the use of the decree-law, an instrument that the Constitution provides precisely for situations of "necessity and urgency" (if it had not been abused of this instrument in the ordinary functioning of the constitutional order).

In fact, it is necessary to think about the effects that this extension – which only at a superficial glance may seem a "formality" – could have on the entire legal system in the future. The Weimarian and Fascist experiences remind us that we must never take our eyes off " temporariness" in emergency situations, which is why emergency situations should have a "maximum limit" pre-established ex ante : to ensure that the emergency does not occur. turn into ordinariness. How are emergency situations regulated by the Italian Constitution? Even if the state of emergency is not regulated in the Constitution, it is possible to derive from it the general principles to keep in mind in order to regulate – and bring back to a system – emergency situations.

The emergency temporariness in the Constitution

In the Constitution, situations of necessity and urgency are always accompanied by a well-defined ex ante temporality, as will be seen from art. 13.3, 21.4 and 77 of the Constitution .

Think, for example, of art. 13 of the Constitution, in which the " restriction of personal freedom can only take place with a motivated provision of the judicial authority " and, where the need and urgency to proceed immediately (pursuant to art. 13 paragraph 3 of the Constitution) is identified, in cases expressly dictated by the law, the public security authority may adopt provisional measures, which must be communicated within forty-eight hours to the judicial authority and, if this does not validate them in the following forty-eight hours, they are considered revoked and have no effect. Situations of necessity and urgency do not prevent us from proceeding by way of derogation from the Constitution itself, but this defect, since it is a defect, must be remedied within a well-determined time ex ante, otherwise the measure is devoid of any effect.

Similarly, art. 21 of the co. 3, where it refers to the seizure of the periodical press, specifies that, if there is absolute urgency and the timely intervention of the judicial authority is not possible, the seizure of the periodical press can be carried out by judicial police officers, who must immediately, and never more than twenty-four hours, to report to the judicial authority. Also in this case, if the validation does not take place within the established time, the seizure is considered revoked and devoid of any effect.

Similarly, a time limit is envisaged in art. 77 of the Constitution: the Government can adopt, under its responsibility, provisional measures with the force of law, but these must be presented to the chambers the same day for conversion (and if these are dissolved, they are specially convened and meet within five days ). Furthermore, the decrees lose their effectiveness from the beginning ( ex tunc ), if not converted into law within sixty days of their publication.

The only exceptionality that allows a distortion of the constitutional ordinariness without, at the same time, defining its "final term" is the declaration of a state of war pursuant to art. 78 of the Constitution; however, this article cannot help us as the constituents did not find support for the proposal to include in this article situations other than those of the war emergency, therefore precisely in reference to the state of emergency.

From the reading of the constitutional text, therefore, not only is there a strong link between the “necessity and urgency” and the “temporariness” of compression, but also how this temporariness is defined ex ante ; moreover, it emerges that it is necessary that the exception to the constitutional principles permitted in the Constitution be remedied through the provisions of the Constitution itself. In particular, this amnesty whether it occurs in the form of " validation " ( pursuant to Article 13 or 21 of the Constitution) or in the form of " conversion into law " (Article 77 of the Constitution) must necessarily take place by the person who the constitutional order pre-establishes being the holder of this function in ordinary time. In fact, it will be the judge, as the natural guarantor of respect for rights, to validate the "seizure" ( pursuant to art. 13 and 21 of the Constitution), and it will be the Parliament, subject constitutionally in charge of legislative activity, to "convert in law ”the provisional provision with the force of law issued by the Government. Through these "amnesties", respect for constitutionalism is ensured in its dual function of guaranteeing rights and separation of powers; and the Constitution, in providing for them, shows how, in exceptional situations, the restoration of ordinariness, and therefore respect for constitutionalism, must always and in any case be guaranteed within a predetermined time.

Therefore, we must not take our eyes off "temporariness": Massimo Luciani, with reference to the health emergency, highlights how temporariness is one of the elements that, due to constant constitutional jurisprudence, should be " included in the appreciation of the legitimacy or otherwise of the measures restrictive of rights " .

Problematic of the modification of the Law on the state of emergency during the state of emergency

Temporariness is the condition that most of all allows the very existence of the proclamation of the state of emergency . It cannot be forgotten that the possibility of extending the state of emergency ad infinitum was what suspended the Weimar Constitution for 12 years; the same can be said in the Italian history of the law, passed by Parliament, which attributed to Mussolini the full powers to be able to do everything necessary to overcome the emergency period. It was therefore the emergency that justified an ordinary non-application of the Constitution: a state of exception was proclaimed with the Constitutions unchanged and became perpetual.

If this is not possible today, it is because the state of emergency has been well defined a priori: in this perimeter, temporariness becomes an essential condition for legitimizing the state of emergency, which is why a question spontaneously arises: a temporal extension beyond the limit predetermined could undermine this delimitation? That is: abstractly reasoning, could the state of emergency become perpetual in this way?

One cannot fail to highlight how, during the state of emergency, the legal system undergoes an alteration both on the side of powers and on the side of rights, even if the Constitution, in that period, is neither suspended nor can it be. On the side of powers, the Government assumes a decisive and decision-making role to the detriment of Parliament and, on the side of rights, one cannot fail to bear in mind how the protection of public health radiates into the legal system, causing an imbalance that affects all other constitutionally guaranteed rights. Only establishing a fixed and impassable term could potentially – and it is not certain that it could – determine an elastic re-expansion of the same.

Ida Angela Nicotra underlines precisely how the emergency is an " anomalous and serious but essentially temporary " condition and that the derogation from the ordinary constitutional development can only take place if this is foreseen for a short term (fixed or determinable) ; it follows that " it legitimizes unusual measures, but they lose legitimacy if they are unjustifiably prolonged over time ". For this reason, very precise boundaries must be set up: the ultimate limit cannot last longer than the extraordinary phenomenon, once the ordinary system regains its effectiveness. While adhering to the above concept, it is the writer's task to ask an unavoidable question: how to effectively guarantee this re-expansive automatism?

A consequence of this approach is that a non-cessation of the extraordinary event can, in itself, justify an extension of the state of emergency. In this way, as a guarantee of "temporariness", a determinable , not fixed term is being assumed. Even more harshly, other doctrine has relied on how the epidemiological state of emergency must deal with a long-lasting " indefinable temporariness ", which is why it cannot be defined a priori. The idea therefore seems to be gaining ground that, instead of a fixed and fixed term ex ante , it is sufficient that this term be " determinable " from time to time: this would mean that, in order to respect temporariness as an essential condition of the legality of the state of 'emergency, it would be sufficient to revoke the latter as soon as the emergency situation (and therefore the pandemic) has ceased.

The reflection that we want to stimulate with this contribution is the following: can the guarantee of the democratic constitutional order be entrusted to a "decision" – albeit entrusted to Parliament – during the emergency itself? Does the democratic order tolerate it? Which antibodies does it prepare to prevent the extension from being repeated, if not ad infinitum , in any case beyond the time sufficiently necessary to overcome the emergency? This is particularly important considering that "zero risk" does not exist.

It is believed that, in light of the emergency situations governed by the Constitution and by analogy to them, a deadline should be established beyond which the declaration of a state of emergency cannot be further extended. It is considered, in fact, that, although involving the Parliament is by far preferable compared to other modalities that do not foresee and avoid the "parliamentary passage" – so much so that several proposals for constitutional revision have been oriented in this direction – this guarantee could however be insufficient. This is because entrusting to a contingent parliamentary majority the power to decide on the final term of the state of emergency, given the dysfunctions of the democratic order that the emergency has placed in the spotlight, may not be sufficient to guarantee that the exceptional turn into ordinariness. Distinctions must be made: one thing is, in fact, to entrust the modifiability of the law governing the state of emergency to a parliamentary majority not involved in the state of emergency; it is quite another to entrust this possibility to a parliamentary majority that is going through a state of emergency . If it is undeniable that Parliament, in a parliamentary democracy, is an expression of popular sovereignty, it is perhaps not true that such an important decision, which pertains to the " Kompetenz-Kompetenz" on the state of emergency, must be removed from parliamentary availability in order to be entrusted to a constitutional sphere?

Provocatively we want to put this reflection here: modifying the law that governs the state of emergency out of "necessity" would not mean, perhaps, elevating the "necessity" to an autonomous source of law? Wouldn't the principle according to which “ Necessitas non habet legem, sed ipsa sibi facit legem ” become current? Even if this has not yet happened, it is difficult to establish a priori that this cannot happen, for this reason it is necessary to resort to a nomogenetic orthopraxis in order to prepare a previously insurmountable remedy.

Therefore, although it is formally possible to extend the state of emergency – or even declare it ex novo -, we are sure that extending it "beyond" the time established ex ante by the law, will not then become a pick-and-tackle for the -weakened- security of the system for to make necessity an autonomous source of law? Massimo Luciani, has clearly highlighted how the emergency measures have their basis in the Constitution, in the principles of primum vive and in the salus rei publicae , and by virtue of this reasoning they have ruled out that necessity can itself become a source of law. We must therefore be careful not to go beyond this limit, which is difficult to determine; we must be careful not to make necessity an autonomous source of law: this is because necessity would be placed before the Constitution itself, questioning its rigidity.

Conclusions: Vulnus of protection?

In the political and academic debate there are various proposals for changes to "regulate the state of emergency". Among these, the inclusion of the state of emergency in the Constitution has been proposed, similarly to what is foreseen in Germany, France or Spain. It is not possible, in this context, to provide an exhaustive discussion on the matter, but it is emphasized that in the future it will certainly be necessary to deal with some vulnerabilities of protection of the democratic order, found in the current discipline.

Regarding the inclusion or not of the discipline of the state of emergency in the Constitution, one can reason on the merits and defects of both solutions. The use of ordinary law has the advantage of not allowing a "suspension" of the Constitution to take place by virtue of the application of a constitutional provision: similar to what happened in Weimar, the rule on the state of emergency could radiate on the whole sorting, suspending it. On the other hand, however, disciplining it in ordinary law has a serious vulnus : that of not removing the delimitation of the state of emergency from the principle of the succession of laws over time ( lex posterior derogat priori) . Regulating the ultimate limit through an ordinary law means entrusting the Kompetenz Kompetenz of the emergency to Parliament – therefore to a contingent majority – it follows that it has the possibility of modifying the limits of the state of emergency during the emergency itself. One wonders: how can a parliamentary majority that is going through the emergency have the serenity to be able to legislate on the containment of the state of emergency?

Furthermore, if one thinks of the dystonia that allows the non-involvement of Parliament, neither for the declaration of the state of emergency, nor during subsequent extensions, as well as the loss of centrality of Parliament in the constitutional order even in the ordinary period, it is understood how a real constitutional imbalance is taking place which involves the centralization of powers in the executive and which leaves us perplexed about the real “ Kompetenz Kompetenz” of the emergency.

An imbalance that the current discipline also accentuates with regard to the judge of legitimacy, where it provides, in art. 24 co. 5 of the Civil Protection Code, that the resolution of the state of emergency cannot be subjected to a preventive check of legitimacy. It is useful to ask ourselves whether or not the extensions are exempted from this preventive control, and consequently ask ourselves: how to behave with the extension "beyond the pre-established time"? This would be – in fact – a new declaration ”, therefore also removed from this control. If the ratio legis underlying this foreclosure consists in the need to prevent a preventive legitimacy check from slowing down the use of the emergency instrument, the same ratio cannot be underlying the extensions given that, in these cases, the emergency situation is already in act, and you have time to plan the emergency management. And what would the new declaration be, if not an extension?

The absence of a prior check of legitimacy should not be underestimated, if we also consider that our legal system does not present a preventive review of constitutionality – as happens in France, and how it was used precisely to verify the possibility of an extension.

From the errors that allowed the establishment of fascism it was thought to build the Republic on a rigid constitution, assisted by two guarantee bodies: the President of the Republic and the Constitutional Court. If not from the errors, at least from the dystonias that are emerging during this health emergency, it will be necessary to provide, in the future, with a review of the discipline of the state of emergency. Although the democratic order is protected by the guarantors, in the future it will be good to strengthen these protections, providing for a specific discipline of the state of emergency.

In the first place, it will be necessary to place Parliament in a privileged position, as a necessary interlocutor for the establishment of a state of emergency: whether this is achieved through a provision of law, or whether this is provided for in the Constitution itself. Taking, for example, the emergency situations governed by the Constitution, the discipline of establishing and ending the state of emergency must also be defined with greater care.

For the establishment (as well as for subsequent extensions) it appears necessary, in the light of this analysis, to provide for a deadline within which Parliament must "rectify" the declaration of the State of emergency promulgated by the Government and, where it does not agree on the need to resort to it, could invalidate the state of emergency with ex tunc effect.
For the termination , however, it appears necessary to establish in the Constitution a final and mandatory term within which the state of emergency can extend.

These two clarifications, if inserted at the constitutional level, would implement a double guarantee: that of avoiding abuses by the Government of Parliament, as well as that of avoiding that a contingent parliamentary majority could hold the Kompetenz Kompetenz on the state of emergency. Note well however: a limiting discipline , aimed only at defining and rigidly containing the state of emergency, not at legitimizing it at the constitutional level, in order not to incur a broader legitimation of the same (placing it at the top of the sources).

This discussion began with a warning from the constitutionalist Gaetano Azzariti: that of returning to normality after defeating the common enemy, on pain of rushing into the darkness of the Republic. One wonders: is not extending the state of emergency beyond the limit established by law or even declaring it ex novo , in itself, a legal darkness in which, during the emergency situation, everything is allowed? " The state of crisis cannot be a source that legitimizes everything" . In fact, it is necessary to keep in mind that "We cannot think that it will be possible to remove the events and that we can safely return to the world we used to, but we cannot accept that the emergency becomes a rule" : a rule that self- legitimate itself. A state of emergency that "beyond" the law, perpetuates itself. The rule has been modified once, what guarantee will you have, what -immediate- protection is provided by the law, so that the rule cannot be further modified even in the face of an emergency that can be managed without resorting to the emergency state, but using the tool, provided in the Constitution, of the emergency decree? And, in the alternative, what would be the legacy of this operation in the future?

In conclusion, it is impossible not to admit that the emergency has become a valid starting point for thinking about how to intervene for the future, to protect the democratic order. The Covid-19 pandemic caught us off guard, but it made us know – and recognize – the fragility of the system and placed us in front of the necessary task – which cannot be deserted – that derives from it: that of intervening in the future, in the direction of maximum consolidation of democracy.

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The article Does the continuation of the state of emergency constitute a Vulnus in the democratic order? (From Iusinitinere) comes from ScenariEconomici.it .

This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/la-prosecuzione-dello-stato-di-emergenza-viene-a-costituire-un-vulnus-nellordinamento-democratico-da-iusinitinere/ on Sun, 12 Dec 2021 16:59:31 +0000.