What to do against the yellow-red regime? (by Paolo Becchi and Giuseppe Palma)
Article by Paolo Becchi and Giuseppe Palma on Formiche 
: https://formiche.net/2020/08/speranza-mscherine-liberta-salvini/
Obligatory outdoor mask from 6 to 6 and closing of discos , dance halls and similar venues throughout the country. This is essentially the content of art. 1, first paragraph, letters a) and b) of the ministerial order with which the Minister of Health Roberto Speranza tightened the sweaters of the Italian summer.
An ordinance issued by virtue of the rise of infections, news among other things denied by the data released yesterday, which saw the number of new infected people decrease by about one hundred and fifty units compared to the previous day, without deaths (just 4) and with very few people admitted to intensive care, 55 throughout Italy. The limitations of personal freedom in the absence of an emergency , that state of emergency that Conte extended until October 15 and that Speranza recalled in his ordinance. It is therefore not true, as the Prime Minister said at the end of July, that the extension was used to hurry in the rush to reopen schools, it was instead used to close some economic activities overnight and oblige sixty million Italians to put on the masks even outdoors, in the middle of August and without any scientific evidence.
What can be done?
There are four tools, two in the hands of citizens and two in those of politics.
First . The trade associations of discos and dance halls, but also theaters and cinemas, given that the ordinance also speaks of "similar places", may appeal to the Regional Administrative Court of their competence and request the cancellation of the ministerial order, also because the economic damage caused by the executive is around 2-3 billion euros, if not more. Limiting economic freedoms, and therefore the fundamental principle of work, with a simple administrative act such as a ministerial order – which in normal times would serve to establish the length of the syringes – is sufficient reason to appeal to the administrative court. The decisions that restrict fundamental freedoms – the economic one is because it is strictly connected to work – are covered by a legal reserve , sometimes absolute and judicial, therefore it is completely illegal for this to happen with a simple ministerial order , an administrative act of secondary rank in the scale. hierarchy of the sources of law. The grounds for appeal may be different: excess of power , disproportionality of the decision in the absence of a concrete and current health emergency, unreasonable infringement of the subjective rights and legitimate interests of the applicants.
But there is more . The second paragraph of art. 1 of the ministerial order provides that " the Regions may introduce further measures only in more restrictive terms than those referred to in points a) and b) ". Appeals to the TAR will have to request the cancellation of the ministerial order also on this point, that is in the part in which the Regions are not allowed to intervene in an improvement way, given that art. 117 of the Constitution – among the matters of concurrent legislation between the State and the Regions (where the State limits itself to the issuing of principles only) – provides precisely for the protection of health and the promotion and organization of cultural activities, a category in which "Premises similar" to discos.
Second . The single citizen who refuses to wear the mask outdoors from 18 to 6, if contravened with a fine by the investigating agents, may not pay the penalty and appeal to the competent Justice of the Peace to request the cancellation of the sanction. Among the reasons to be adduced, the limitation of personal freedom without respecting the absolute and jurisdictional law provided for by art. 13 of the Constitution, pleading the absence of the concrete and current health emergency, prodromal to the issuance of the ministerial order. The Justice of the Peace must necessarily enter into the merits of the exceptions and rule for the annulment of the sanction. It is not possible to force indiscriminately sixty million citizens, without any territorial differentiation based on scientific data , to wear an individual protection instrument that affects half of the face and two vital organs such as nose and mouth . An unreasonable invasion into the sphere of everyone's individual freedom. Where is the topicality requirement of the health emergency that justifies the measures contained in the ordinance? Compared to March, the number of beds in intensive care has more than doubled and, to date, there are less than sixty hospitalized with a number of deaths that can be counted on the fingers of one hand.
Third . The regions. As of today, each individual Region can challenge the order of Minister Speranza before the Regional Administrative Court , pleading the non-compliance with regional competences – as per art. 117 of the Constitution – on the subject of health protection and the promotion and organization of cultural activities, a category that includes “premises similar to dance halls”. The TAR should only apply the Constitution as mentioned above. But there is another way . Even now, the Regions could issue less restrictive regional ordinances than the ministerial one, waiting for the government to appeal to the TAR . In this way the days pass (the courts are suspended until August 31st, therefore the activity is reduced) and in the meantime the regional ordinance is in force pending the ruling of the TAR, which in any case will have to apply the constitutional provision in order to the competing matters State-Regions , taking into account the absence of a current emergency and the lack of territorial differentiation by the Ministry of Health. At that point Conte could replace the power of the Regions pursuant to the second paragraph of art. 120 of the Constitution (to protect the legal unit), but it will not do so because regional elections will soon take place.
Fourth . The obligation of the mask outdoors from 6 to 6 is valid, for the moment, until 7 September, but nothing prevents the minister from extending it until 15 September, the day on which the low summer season ends. In the middle of the electoral campaign for the regional elections and for the confirmatory referendum on the cut of parliamentarians (voting on 20 and 21 September). The government's goal is clear: to prevent or make it very difficult for Matteo Salvini to hold electoral rallies in the squares. In this case, if the center-right loses the regional elections, it could ask the competent electoral office of the Court of Cassation to invalidate the results as seriously affected by one of the essential elements of the competition: having prevented a normal and ordinary electoral campaign, in open violation of the democratic principle . Ditto for the confirmatory referendum, where the parliamentarians and committees lined up for the "No" could ask the Supreme Court to annul the outcome of the referendum (if the Yes win) for not being able – on the government's decision – to explain the reasons for the "No" to the cut. In short, who do you want to go to electoral rallies with a mask? Obviously few, and this constitutes a serious limitation of democracy to the exclusive advantage of a single political party: the yellow-reds to the regional and the supporters of the Yes to the constitutional referendum.
The way to react is narrow, difficult and winding. It remains to be seen that the peoples are beginning to rebel against governments. No longer only in Berlin , but now even in Madrid thousands of people take to the streets unmasked shouting for " freedom ". When also in Rome?
by Paolo Becchi and Giuseppe Palma on Formiche https://formiche.net/2020/08/speranza-mscherine-liberta-salvini/
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Literary Tips :
1) by Paolo Becchi and Giuseppe Palma, “ A wrong reform. Twelve reasons to say NO to the cut of parliamentarians “, Gds, February 2020. Here for the purchase : https://www.amazon.it/Una-riforma-sbagliata-Dodici-parlamentari/dp/8867829920/ref=mp_s_a_1_1?dchild=1&keywords=una+reforma+sbagliata&qid=1597305132&sr=8-1
2) by Paolo Becchi and Giuseppe Palma, “ DEMOCRACY IN THE QUARANTINE. How a virus has swept the country “, Historica edizioni.
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 What to do against the yellow-red regime? (by Paolo Becchi and Giuseppe Palma) comes from ScenariEconomici.it .
This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/che-fare-contro-il-regime-giallo-rosso-di-paolo-becchi-e-giuseppe-palma/ on Mon, 17 Aug 2020 14:36:51 +0000.