Usurped sovereignty
Like sheep go out of the closed
one, two, three, and the other are
shy, landing the eye and the muzzle;
and what the first does, and the other do,
leaning against her, if she stops,
simple and quiet, and they don't know
so the constitutionalists are coming out of their turris eburnea , one by two , maybe tomorrow by three, and we, who many times and in many ways have tried to involve them (for example here and here ), are still in doubt that the ' mwhy they still do not know, i.e. that it is not yet clear to them, for anthropological, epistemological and sociological reasons (in alphabetical order), what should be the focal point of their concern that finally manifests itself, or the fact that a system that it foresees the compression of wages as the only outlet, ( De Grauwe dixit : "reduce wages"), it will necessarily have to compress political rights. This authoritarian drift is objective: given that wages are the source of income of the majority, this, having been injured in its economic rights, sooner or later will vote against. The only way the system has to perpetuate itself is to squeeze democracy together with wages.
As simple as that.
Well so, and the authoritative colleagues forgive me for what sounds like a bitter sarcasm, because it is . On the other hand, the two triplets I mentioned are immediately preceded by my favorite hendecasyllable:
for wasting time on those who know the most sorry.
Oh, how much time has been lost, wasted! And what pained us, this waste of time, how excruciating was the nagging of us who saw our country sliding along an inclined plane at the end of which there could only be the complete metamorphosis of financial fascism (Tremonti dixit) into fascism politic!
We saw, we denounced …
But we don't have to look back! It is not because he wakes up only when the water laps on the linen of his white first-class sheets that who knows how to do things is useless, indeed! It happens that late conversions are assisted by the sacred zeal of the neophyte, who, when it is not an obstacle, is a resource, and therefore we, who are the debate, exactly how we must block the provocateurs without remission or mercy, we must welcome without reprimands or distrust these late awakenings, we must enhance their content, we must bring them to the knowledge of our fellow citizens in the most neutral and aseptic way possible.
With this ecumenical spirit I want to report to you a beautiful article that I read today, the author of which was nothing less than President of the Constitutional Court in a period in which the debate already existed.
Thesis
The article is very readable but I summarize the contents in any case.
Starting from the assertion that it is improper and dangerous to speak of suspension of constitutional guarantees, because it would be sufficient "to face the state of need, apply what is written in the Constitutional Charter" (and if one thing is useless, it serves something else , as we know here), the article describes with concern two degenerative processes that have been going on for some time: the contempt for parliamentary democracy, on which here we have often spent useless alarms, which did not lie with us for the scientific-disciplinary sector (in particularly when we criticized the raison d'être of our orthoptera friends), and the progressive alteration of the hierarchy of the sources, that is the domino effect that brought "the decree law instead of the law, the administrative act instead of the decree law "(we have also dealt with this here, when I explained in detail what the ordinary legislative process has become :" the real legislative activity ativa in fact takes place in another way, that is, by "hooking" a wagon-amendment to a train-decree "). A domino effect in the legislative sphere that joins another, in the executive one: "Parliament is too slow and quarrelsome to be able to churn out legislative acts with the timeliness imposed by the dramatic circumstances determined by the spread of contagion. Government; indeed, since the Government itself is slow and quarrelsome within it, the President of the Council of Ministers thinks about it ".
With suggestive and impressive historical glimpses the author highlights the tremendous risks of these drifts that the myth of "decision-making" makes tolerable if not even desired by people and elite: "that beneficial decision-making, whose deficit would be at the root of all mali. The same was said in Weimar Germany. We know how it turned out. "
The author then wisely recognizes the existence of some objective and subjective constraints to the performance of normal parliamentary activity: he recognizes subjective constraints in "any uncooperative attitudes of the opposition", and objective constraints in the "difficulty of meeting of the Chambers, due to the need to strictly observe the precautions necessary to avoid the spread of the infection, even within the parliamentary seats ". To overcome both these limits the author proposes, in the absence of constitutional or other legal reserves, to modify the parliamentary regulations so that the conversion of the decrees can take place in the drafting or even (it is not clear) deliberating, with a twofold advantage: faster times (these in fact would only occur in the deliberative seat, which eliminates the passage in the assembly, and I believe that the author refers to this when he speaks of "decentralized procedure"), and obviously the involvement of fewer parliamentarians, with less risk of contagion.
The last paragraph is equally interesting and concerns another major issue raised by the crisis, the relationship between emergency and the autonomy system, which we do not enter in order not to weigh down the discussion.
The diagnosis
The author's diagnosis is in my opinion as enlightening as it can be shared, even if, in my opinion, it requires two additions.
The first is that, I suppose for economy of discussion, in denouncing the "bottom-up" aggression to parliamentary power, such that arguments subject to the law reserve such as personal freedoms are in the name of decision-making managed by administrative act, the author does not dwell on another aggression, much more dating and penetrating, that which takes place "top-down" on the basis of the affirmation of the principle of supremacy of Community law over national law. As we have discussed extensively here, thanks to the work of Luciano Barra Caracciolo and Vladimiro Giacché , the fundamental principles of the Treaties are largely incompatible with those of our Constitution. It is worth mentioning the simple root of this antinomy: the Constitution of a Republic founded on work ( Art. 1 paragraph 1 of the Constitution ) objectively comes into conflict with that of a Union based on price stability ( Art. 3 paragraph 3 TEU ), for the simple reason that price dynamics are linked not to the money supply ("printing"), as shown by Draghi's failure to reach the 2% inflation target, but to unemployment dynamics (curve Phillips, industrial reserve army, etc.).
So if you want stable prices, you have to sacrifice work (employment), and if you want to protect work (full employment), you have to sacrifice price stability (or redefine it in a compatible way).
This obviously raises the issue of who should give way when this conflict unfolds, especially since, as Omar Chessa authoritatively recalled if I am not mistaken in the conference mentioned above , the principle of the supremacy of Union law actually de facto legitimizes aggression. of rules of constitutional rank, or in any case of primary rank, by secondary rank rules: the EU Regulations, which are, by definition, immediately enforceable (such as law decrees). As an example, referring to a theme that we have seen here come before others, the constitutional right to the protection of savings has been attacked by the complicated intertwining of two directives (the BRRD and the CRD) and a regulation (the CRR), adding the vulnus of an aggression to the Constitution with blows of secondary legislation that of a total opacity, such that the European Banking Authority felt obliged to issue guidelines to help the national authorities to orient themselves (!) in this complex envelope .
It is not only our own Caesarism, which also exists (there will also be a reason if in the last discussion on trust someone in the classroom "crypto-quoted" Shakespeare …), which undermines the hierarchy of sources: l imperialism does its part. I would like to sincerely hear the author's opinion on this point: he also belongs to the assembly of those who in art.11 of the Constitution read the term "limitation" (I restrict the use of an "object", sovereignty, which belongs to me people) as "transfer" (I give – to whom exactly? – an object that alone is mine, sovereignty, and then from then on no longer belongs to me)?
It would be useful to know this, because the summa divisio is at that level.
Then there is a nuance, which however seems important to me. The author seems to believe that Schmitt does not help us to frame the current situation, and on this I allow myself to disagree, assisted by the incipit of the Politische Theologie : Souverän ist, wer über den Ausnahmezustand entscheidet . "Entscheiden über" means to decide (on something), not to command (in or during something). The etymology refers to a radical option in short, a break between two alternatives: the skeidan the old German is a relative of the separate Latin and Italian (Martinetus will help us find the Sanskrit grandfather of these grandchildren …). But in short, it seems to me that Schmitt simply (etymologically) says that sovereign is who "gives us a cut" and decides that we are in a state of exception, regardless of whether he is then able to govern it or is called to govern it. Of course, as the author says "the Schmittian state of exception – often evoked in these times – presupposes an empty space" that would not be conceivable "in republican and democratic Italy". I agree. But coming out of the conditional and entering the indicative, it comes to me to say that this government that decides on everything but governs nothing, by virtue of this same modus operandi certifies that it has usurped the sovereignty of the people.
In short, if we give Schmitt's sentence a positive, rather than a normative reading, it helps us understand that much, too much progress has already been made. Put another way: I would not read Schmitt's sentence as a justification for what is happening (as the author regrets that some are doing), but rather, on the contrary , as the highest alarm cry about the fold that things they are taking.
On some false myths
We move from diagnosis to therapy, that is, to the suggestion to modify the Parliamentary Regulations allowing the conversion of the decrees to be made in the deliberative rather than referent (ie eliminating the passage in the assembly). I would like to evaluate with you whether these changes are actually necessary and what form they should take.
Meanwhile, I start from the indisputable fact: the management of the Assembly and the Commissions is in fact made rather difficult by the danger of contagion. In the Senate, in particular, there are few spaces that allow safe operations for the Commissions: the Koch Room, the Nassiriya Room, the Defense room, and more or less enough. As for the Assembly, the stenographers moved to one of the two balconies above the Presidency bench to gather it keeping the safety distances, some senators were seated in the two orders of tribunes, obviously chosen among those not registered to speak, and the members of the board were called to speak, to prevent their colleagues from sprinkling ( asperges me et aegrescor …).
Social distancing is therefore manageable, but inhibits an important part, perhaps the most important, because it is less visible and not codified, of political work, made of office work (as I explained in detail here ), also inhibited due to restrictions on timetables and spaces, agreements reserved in the corridor rightly whispering in the neighbor's ear (which is now strictly forbidden), decisions made in the excitement of voting coordinating with facial expressions (obviously impossible if you are masked). This means that when you have less time, you need more time to agree, that is, to communicate your mutual positions. So to summarize: the "scenic" part of political work, sacred representation, is preserved, but the substantial part is substantially affected, and no modification of the Regulation can affect this. It will be up to us politicians to create other forms of informal coordination, and we are doing it, but here the Rules cannot help us.
I would now like to dispel a mythology to which the author seems to subject me, that of the aforementioned "slow and quarrelsome Parliament" (which asymptotically reconciles with its transformation into a bivouac of handpieces …) and of the "uncooperative attitudes of the oppositions" (which to tend justify the derubrication to hatred of any expression of dissent). I want to show that none of this affects the theme that the author deals with, or the speed of conversion of the law decrees, and therefore none of this justifies, if not at the level of the most bitter journalistic gossip, the government's refusal to use of the instrument of the law decree.
The proof is based on two facts: first, this opposition is not obstructing; secondly, even if he filed a filibuster, he would not be able to delay the timing of a provision on which in any case the Government intends to ask the question of trust.
I know this seems a political opinion (that is, for the PD, a manifestation of hatred to report to the Minister of Truth !), Because it is equivalent to the declaration of an opposition member that if there have been delays the fault is of the majority! But the rituality of the Parliament, which the decision-makers (not the author) regret, serves precisely to separate the opinions from the facts and their report.
Using the report, I clarify the first step (this opposition is not obstructing). I have shown you here how the majority obstructed itself by presenting 533 amendments and wasting a lot of time in withdrawing them (the minutes are here ). I can say with full knowledge, because it is my job, that this second part of the story could have been managed more efficiently; I regret here that my speech on the order of business in this regard is missing.
On the contrary , I can show you how obstructionism works when it derives not from the inconsistency of the majority, but from the relevance of the opposition. An example is here , in the discussion of the dignity decree. Simply, once passed the examination of the articles, on which we take care to present an exorbitant amount of amendments (therefore 2000, not 204 as we have done), we ask to intervene in the declaration of vote on each single amendment (not to more than ten minutes, art.89 paragraph 3 of the Regulations ). The Regulation allows for one intervention per group (art. 109 paragraph 2), but of course, to protect everyone's opinions, each parliamentarian is also allowed to intervene to motivate his eventual dissent from the group, provided that the number of "dissociated" is lower than that of half of the members of the group. In practice, on the long night of August 5, 2018, our oppositions, in particular those of the left, used this tactic by intervening systematically both in favor and in dissent (the declarations of vote in dissent by Senator Laus were very funny).
But in the end, what does this lead to?
In the work of the Commission, the times per group are not contingent, and therefore each group intervenes as much as it wishes as long as within the limits of the Regulation (those just mentioned). However, you can't take it too long because the overall duration of the exam in the Commission is still limited : it is the group leader who decides when the measure goes to the Chamber (i.e. at the Assembly) . Consequently, the maximum result that a fierce obstructionism can obtain is that the work in the Commission is not finished, that is, that the mandate cannot be voted on to the rapporteur. This forces the government to elaborate a maxi-amendment on which to put trust to recover the emendative work of the majority (otherwise lapsed), or to revoke everything in the Assembly, where however the times are contingent and the kangaroo allows you to go quickly. In other words: the opposition cannot make the majority waste time, and in particular it has not done so with Cura Italia, so much so that the measure went to the Assembly with the rapporteur (on what happened after I keep silent for charity of the Fatherland ). In other words: in this regulatory framework, which, as Azzariti has explained so well to this community , strongly compresses the rights of the opposition, the maximum that this can obtain with obstructionism is to have to give up its amendments!
So, not only in this phase of emergency, the opposition is not obstructing, and for a long time it has not even made opposition (the famous history of the control room), as I have just shown for tabulas , exercising the pedagogy of example and experience, but even if he did obstructionism he would not be able to prolong the examination time much.
This means that, on the one hand, the use of Prime Ministerial Decree is even more incomprehensible and unjustifiable, and on the other, however valuable, the proposal to move the conversion from the referring seat to the deliberate is probably superfluous. Indeed, in my opinion, a proposal that creates more problems than it solves, and I hasten to explain why, also in order to highlight another dimension of the legislative malpractice that afflicts us.
Homogeneity
Given that the article of the Senate Regulations on which to intervene would not be the 78 cited by the author (who simply describes the order of the works on the conversion laws), but the 35, which reserves a series of measures (those in constitutional and electoral matters, those of legislative delegation, ratifications of international treaties, conversions of law decrees and little else), let's imagine what would have happened if President Alberti Casellati had been able to decide to assign the Commission 5th in its seat Cura Italia deliberating (i.e. if article 35 of the Regulations had not existed). President Bagnai, after having removed the examination of an article made up of 5 titles, two of which on the subject of his Commission (one on tax and one on banks), to protect the role of the parliamentary body chaired by him, would have immediately raised a problem of attribution asking for the assignment to the Commissions gathered 5th and 6th. But given that the first title of the provision deals with health matters, President Collina could have done the same. And we would have arrived at three assembled Commissions.
Without prejudice to the principle that the decisions on the assignment are the exclusive prerogative of the President, it remains however that the exclusion of the passage in the Assembly would make the requests of the other Commissions involved by subject rather binding. In fact, it could be argued that without going to the Assembly, senators specialized in a specific area (taxation, health, justice, etc.) would have no way of fully examining the measure and having an impact on it. This is also clear to the author, so much so that he correctly mentions the right to pass "to the ordinary procedure, at the request of the Government, of one fifth of the members of the competent commission and one tenth of the assembly" (art. 35 paragraph 2 of the Regulation).
Not only that: this also happened. In the conference of the group leaders who ordered the examination of the measure, in the face of a position of the PD, which basically wanted the examination to take place in the referent office in Commission 5a only without consultative offices (thus depriving the Finance Commission of the right to express itself on a provision that involved two-fifths of it!), I found myself carrying on the need to examine the provision at the referent level in the Commissions meeting 5th, 6th and 12th involving the relevant Commissions in a consultative session (Justice, Constitutional Affairs, Agriculture) . The point of drop was the examination in the referent office in Commission 5a with the examination in consultative office in all the other Commissions (that of involving all the other Commissions was a position taken by the PD simply by way of blackmail, given that for our part we refused to give unanimity to a calendar that did not accept our request to have the prime minister in the classroom for communications on the ESM: thus having to bring the calendar to the vote, the PD became self-destructive by imposing the convening of Commissions even not interested – and that in fact their respective presidents then did not convene, to then be able to say that "bad League leaders endanger the health of parliamentarians …"). Four hours of group leaders' conference … life is also made of these things, as President Silvestri will surely know!
And here we come to a crucial point. The proposal of President Silvestri would make perfect sense if the Government adhered, in the urgent decree, to that principle of homogeneity of matter on which it seems to me that the Court's jurisprudence, after some fluctuations , then definitively widened the links (but here I confess I am not an expert, and I would ask the constitutionalist on duty for help).
I clarify the issue from my operational point of view: if , as in the League we had hoped, the Government had intervened with punctual measures (given that in any case it issued a forest, without even agreeing with the opposition on this path), and if, in in particular, had made a very simple decree: tax obligations and full stop mortgage payments have been suspended , this decree, in the scenario hypothesized by President Silvestri, would have been easily convertible into a deliberative seat (therefore without going to the Assembly) by the Commission 6a , fully falling within the scope of its attributions. The line chosen by the Government, on the other hand, that is to write in fact a kind of budget law with incorporated tax connected, would have made the procedure chosen by President Alberti Casellati mandatory even if the regulatory changes desired by President Silvestri had been made.
I hope I have clarified the point: the fact that the Constitutional Court (and, I must believe, the Presidency of the Republic) has progressively moved towards a very extensive interpretation of art. 15, paragraph 3 of Law 400/1988 , which states "the decrees must contain measures of immediate application and their content must be specific, homogeneous and corresponding to the title", believing that "the urgent need to provide may concern a plurality of rules united by the unitary nature of the disciplined cases or by the intent to face complex and varied situations, which require objectively heterogeneous interventions, pertaining to different subjects, but oriented to the sole purpose of making urgent remedies "(translated: den all free!) , significantly complicates the work of the competent parliamentary bodies. Already the work of two assembled Commissions is not easy for logistical and organizational reasons, let alone with three or four, as would be justified given the heterogeneity of the measures that the Government is enacting! There are three abundant seventy commissions, excluding officials: even the Koch room cannot contain them safely, one should work in the Assembly, with all the complications of the case.
This applies in an emergency, but things are not much better in normal times: the lack of homogeneity of the decrees is just another of the symptoms by which the degradation of parliamentary democracy that the author stigmatizes is manifested. A sneaky symptom, but not the least lethal.
Concluding
If the procedural problem of cumbersome (or quarrelsome) of the referring offices existed, to resolve the question by circumventing the further problem of the lack of homogeneity of the measures, it could also be thought of assigning them in a deliberative session to a special Commission (faculty already granted to the President by the art.35 paragraph 1 of the Regulation, but obviously not for the conversion laws).
However, as I have tried to make you understand, the problem does not exist.
This government decides by Prime Ministerial Decree and not by decree law for the reasons that President Silvestri correctly identifies (a "decision-making" response to the incurable splits of the majority, which are reflected in the government team), and wastes time not because of Parliament, but simply because he is waiting for permission from Brussels to commit additional resources, a permission that will be given when he has slipped the neck of the country into the loop of the ESM, that is, of that mechanism capable of imposing sufficiently draconian conditions to guarantee those who believe we are our creditor. The possibility of recourse to the ESM was simply removed from the negotiating table. Not having done so is a capitulation, as two other constitutionalists correctly point out here in another nice article that I point out to you . How the government was blackmailed, if with the threat of unleashing it against "the markets", or with that of a fierce infringement procedure with an emergency over, I can't tell you. But it went like this, and now our country is at a crossroads, the crossroads that Dani and Menéndez lucidly describe (at good time!).
Time was lost like this, waiting for the take-off authorization on the runway. The opposition and the Senate Regulations have very little to do with it. The compression of democracy has other origins, those that I have dealt with in these few pages, and to which I have dedicated the last ten years to reporting. If we want to recognize the existence of the real problem, we will know how to find a real solution together.
Welcome?
This is a machine translation of a post (in Italian) written by Alberto Bagnai and published on Goofynomics at the URL https://goofynomics.blogspot.com/2020/04/sovranita-usurpata.html on Sun, 12 Apr 2020 19:06:00 +0000. Some rights reserved under CC BY-NC-ND 3.0 license.