The Italian newspaper Il Fatto Quotidiano publishes an outburst by the President of the Campania Regional Council, Mr De Luca, whose merit is agreeable, about the current status of the fight against COVID-19. Mr De Luca, moreover, exposes the confusion that characterises the measures issued by the Government (most recently – I add – those relating to the use of the army and the possibility of “doing sport” outdoor, which implicitly derogates from the prohibition established by the Prime Ministerial Decree of 8 March 2020).
In contrast, its “reading” of the power of the regional ordinances is not correct: in the event of a health emergency, they cannot replace the decisions of the Government and, therefore, they cannot establish red zones or – as even the mayor of Pescara did – impose administrative sanctions in the absence of a law of the State or even decide on their own on the closure of shops and shopping centres.
The situation generated by the spread of COVID-19 implies to account for three aspects: health, civil protection and public order and safety.
These aspects are regulated by emergency legislation, issued to avoid fragmented and inconsistent decisions, which – in contrast – is what is happening exactly. Therefore, it is not clear why the Government itself insists on not fully exercising its powers, leaving local authorities free to “legislate” on an individual basis.
In a summary reconstruction of emergency legislation, we must start from Article 120, second paragraph, of the Constitution:
The Government may take the place of bodies of the Regions, Metropolitan Cities, Provinces and Municipalities in the event … of serious danger to public safety and security, or when the protection of legal or economic unity and in particular the protection of essential levels of services relating to civil and social rights, regardless of the territorial boundaries of local governments. The law defines the procedures to ensure that the local powers operate according to the principles of subsidiarity and loyal cooperation.
The Law on Public Security (still in force since 1931), Article 214 of which provides instead that
In case of danger of disorder the Minister of the Interior with the consent of the Head of Government, or the Prefects, by delegation, may declare, by decree, the State of public danger.
The following article 215 provides that.
During a state of public danger, the Prefect may order the arrest or detention of any person if he deems it necessary to restore or maintain public order.
Finally, Article 216 provides
In addition to the provisions of Article 2, if the declaration of public danger extends to the entire territory of the Kingdom, the Minister of the Interior may issue ordinances, also in derogation from the laws in force, on matters relating to public order or public security.
Infringers of the aforesaid ordinances shall be punished with imprisonment of not less than one year, except for the greater penalties established by law.
The former provision also applies to those who violate the Prefect’s orders issued during the State of declared public danger, by virtue of the powers conferred on them by art. 2.
Moreover, the Consolidated Act on Health Laws attributes to the Prefects direct powers (and obligations of the mayors towards them) also in matters of health.Among all, it is worth mentioning article 260 under which
Anyone who fails to observe a legally given order to prevent the invasion or spread of an infectious human disease is punished with imprisonment for up to six months and a fine ranging from 40,000 to 800,000 lire…
Finally, Article 7 paragraph I of the Civil Protection Code states that emergencies of national relevance
connected with calamitous events of natural origin or deriving from human activity which, due to their intensity or extent, must, with immediate intervention,
be confronted with extraordinary means and powers to be used during limited and predefined periods of time in accordance with Article 24.
In short, therefore, matters relating to health emergencies are the responsibility of the Minister for Health, those relating to civil protection are the responsibility of the Presidency of the Council, and those relating to public order and safety are the responsibility of the Minister for the Interior:
- it is up to the Minister of Health – and not the Regions – to take decisions on the management of the emergency,
- the Government may issue, depending on the legal nature required (e.g., decree-laws to allow – by extending the operational areas of “safe roads” the use of the army for public security activities, or limit constitutional rights, DPCMs if sufficient to achieve the purpose within the executive’s regulatory activity)
- the Minister of the Interior – coordinating the Prefects – can strengthen the control of the territory, taking away from the mayors the command over the members of the local police who are public security officer, and also resorting to the special sworn guards, who by TULPS must carry out the orders of agents and public security officers. Furthermore, through the police headquarters, it can intervene in the opening and access to shops and the movement of citizens.
It is clear that, in this scheme, regions and municipalities have a minimal operational space which translates into the possibility of issuing measures that apply but do not replace and supplement, those issued by the central Government.
A classic example of this confusion is the order issued by the Minister of Health, which allows individual outdoor activity the home but respecting the safety distance which is frontally opposed to that issued by the mayor of Pescara, which prohibits the same activity.
It is hard to understand how a Ministry’s order can overrule the ban imposed – with some doubt of constitutionality, though – by the President of the Council. Still, the fact remains that the ministerial measure sanctions the inapplicability of the trade union one.
As I have already written, in an emergency, all these arguments can be easily countered with a laconic “stop these legal onanisms! We have a country to save”. But then one should ask oneself what sense does it make to have emergency legislation if when you have to enforce it, you don’t.