Green pass extended to all, the “tyranny of the majority” (by P. Becchi and G. Palma)

The decree-law provides that from 15 October until the end of the state of emergency, currently set on 31 December 2021, employers must verify that the employee – public or private – is in possession of the green pass. In short, employers become policemen who check the health of workers. Note, from October 15, that is, the emergency decree takes almost a month to become urgent , because in fact there is no health emergency (the deaths range from 20 to 80 per day, intensive care is under control and the positivity rate is less than 2%), but only the need for total control over the population.

This is not a vaccination obligation in a technical sense as the green pass is issued not only to those who are vaccinated but also to those who are cured and to those who take a tampon valid for 48 hours. In essence, however, we are faced with a vaccination obligation because those who do not want to undergo vaccination will be forced at their own expense to get swabs every two days. The penalty is suspension from work and pay and, in the event of non-compliance with the rules, a fine of between 400 and 1,000 euros. However, the suspended worker cannot be fired. The obligation of the green pass is also extended to the performance of judicial activities , with the entry of magistrates and state prosecutors into the judicial offices subject to possession of the health pass. Lawyers, on the other hand, are obliged for the moment to obtain the green certificate when they go to the office but not to court (for obvious reasons of inviolability of the right of defense in court).

However, the matter is more complex. The government has subordinated the constitutional right to work to having a health pass . A point that deserves to be addressed under the constitutional aspect. The Republic, pursuant to the first paragraph of art. 1 of the Constitution, " is founded on work " , but not only. The art. 4 of the Charter establishes that “ the Republic recognizes the right to work for all citizens and promotes the conditions that make this right effective. Every citizen has the duty to carry out, according to his own possibilities and his own choice, an activity or a function that contributes to the material or spiritual progress of society ". Work as a right aimed at the material and spiritual progress of society. Two articles, 1 and 4, listed in the fundamental principles of the Charter. On the other hand, the right to health is governed by art. 32 and listed in the Ethical-social relations. The government has in practice reversed this priority of constitutional values ​​by subordinating the law on which the Republic is founded, work, to health, also forgetting that art. 35 of the Constitution “ protects work in all its forms and applications ”, while art. 36 guarantees the worker " a remuneration proportionate to the quantity and quality of his work and in any case sufficient to ensure a free and dignified existence for himself and his family ". How do you reconcile the suspension from work and the salary provided for by the decree-law for the worker without a green pass with Articles 1, 4, 35 and 36 of the Constitution? Everything is justified in the name of the health emergency (which does not exist, because the emergency is under control) and a balance between fundamental rights has not even been made.

The state of emergency is not the state of war for which Parliament gives the government "the necessary powers", it is simply a declaration in which the government – through civil protection – uses the power of ordinance to temporarily deal with calamities as they can. be a flood, an earthquake or a pandemic but only for " limited and predefined periods of time ", as established by Legislative Decree no. 1/2018. For over a year and a half, the emergency has been continuously extended to such an extent that the emergency itself has transformed into a " new normal ", with the legislative function that has passed completely from Parliament to the Government, as if we were at war but in the absence of a declaration of war and a conferral of the "necessary powers" of the Chambers to the executive.

It will be said that the last word belongs to the Parliament, which must convert the decree-laws into law within sixty days, under penalty of forfeiture of the decrees themselves, but the Chambers are now relegated to mere ratification bodies with conversion laws already packaged even more by the secretaries of the majority parties, but even by the ministers of the government expression of the parliamentary groups. Today the Parliament, in fact, no longer exists, all its constitutional powers have been practically transferred to the government.

If democracy means realizing the will of the majority while protecting the rights of minorities in any case, how can the action of a government which imposes its will be defined by scornfully crushing the rights of at least one third of the population? Are we not facing the " tyranny of the majority " theorized by Tocqueville ?

It is now more than ever necessary for Parliament to raise its head: in the process of converting the decree into law, the Chambers could overcome our constitutional doubts by allowing the green pass to be issued even following rapid salivary swabs (those which give the result after 20 minutes) with a reduced price of 8-10 euros. A solution that would put a pinch of balance between the right to health and the right to work.

by Paolo Becchi and Giuseppe Palma

(original version of the article published on Nicola Porro's website)

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