The cases of regional governors and mayors who issue orders against the COVID-19 emergency are multiplying (Abruzzo is only the last in order of time.) They are limiting the constitutional rights of citizens, imposing administrative sanctions and using the municipal police as a security force while claiming to “abide the law”.
These measures are illegitimate because only a Parliament-enacted law, even and above all and in emergency, can compress Constitution-granted rights. Government and Parliament cannot let this constitutional rip with impunity. In doing so, they would legitimize the concept that in times of emergency “whoever does is right”, and then – when the storm is gone – somebody will verify the legitimacy of it.
But, in the meantime, Italy goes back in time and shatters into many fiefdoms – large and small – in which there is the law of the local “feudatory” who claims to negotiate as equals, or even in a position of superiority, with the central power. And the citizens, clutched in the grip of two opposing powers, do not know who to listen to and to whom to obey.
This is the consequence of the way public security was handled when Title V of the Italian Constitution was amended and subsequent acts were issued. Behind puns that distinguished Byzantinistically public security from administrative security and urban security, “decentralization” laid the foundations for the condition of public disorder and public insecurity that we are experiencing.
To aggravate the situation lies the misperception of the role and limits of individual rights which, even in the perception of scholars and (sometimes self-styled) experts become selfish rights or – as I have defined them in a forthcoming paper – ?berrights: individual claims which, for this alone, must rise to the rank of impassable limit of the action of anyone, including the State.
Thus, instead of adopting an obviously sensible and important measure such as the analysis of the geolocation data of mobile phones in order to reconstruct by name the movements and contacts of those infected, precious days are lost because of the “violation of privacy” and compliance with a rule, the regulation on the protection of personal data, which clearly does not apply to cases of emergency health and public security. While none of these scholars and (sometimes self-styled) experts dwell on far more important issues such as the fact that powerless entities have restricted our freedom of movement and association. Or the fact that a blocked justice makes it possible for criminals, but also (local) institutions, to abuse it without any possibility to react.
But who cares about all this? Why should we care about such issues when people die and lose their jobs? Isn’t challenging measures that are illegal but correct in substance a criminal act itself, because they are intended to save lives?
The answer is in the immortal words of Dante Alighieri: Il modo ancor m’offende.
Therefore, I do not question the importance or value of the substance of the measures adopted, but the way, that is, the source of power, to imposes them. It is precisely in times of war that it is fundamental to respect the rules – first and foremost – of the hierarchy of public powers, because only in this way can we avoid the struggle of “all against all”, both institutional and individual.
It is the short circuit of law, the one that leads to say “who cares” about laws, we have other things to think about, and that contrary to what has always been thought, has not opened the way to the much feared (but desired) “strong man in command” but to a shattering of the pillars of our system. We thought they were made of steel, but they turned out to be more fragile than clay.
And the short circuit of law can only result in the blackout of democracy, at the very moment when we would need a light to find our way out.