Representative democracy in Italy: the great absentee in the Covid-19 emergency
The health emergency that Italy has been facing since the first months of 2020 has shed light on the crisis of representative democracy and the free parliamentary mandate, which is not a novelty for the Italian legal system but has definitely been exacerbated by the pandemic. A side effect of this crisis is the increasing weakness of the national Parliament not only when exercising the legislative function, but also in light of the control function vis-à-vis the Government.
The spread of Covid-19 in Italy has in fact, been managed mainly through a set of measures directly introduced by the national Government or by means of its administrative structure (such as the Civil Protection Department). The role of the Parliament has been minor, basically being entitled to convert into law the law decrees previously issued by the Government.
The system of the sources of law adopted, even if compatible with the constitutional order in place, is certainly based on the centralisation of power in the hands of the Government, and particularly of the President of the Council of Ministers, posing serious problems both with regard to the relationship between the institutions of the Republic and the democracy of the entire process.
The only counterbalance to the national Government’s monopoly in the daily management of the emergency comes from the subnational level. Since the constitutional reform of 2001, health protection has been a shared competence between the State and the Regions (art. 117 Const.). This means that the State sets the fundamental principles and goals of the health system and allocates national funds to the Regions, which are themselves responsible for organising and delivering health care in their territories, while municipalities are responsible for delivering health services at the local level.
Regional presidents have the power to issue ordinances in the field of civil protection whenever an emergency pertaining to health occurs (according to Law 833/1978 introducing the National Health System – NHS – and the legislative decree 1/2018 – so called Code of Civil Protection). The same can be said if considering Mayors who have the power to issue urgent and necessary ordinances in their respective territories in cases of local sanitary or public health emergencies (according to, other than the abovementioned NHS Law, the legislative decree 267/2000 – known as TUEL).
In the past months, the predominant position of national Government measures against regional and municipal ones, has clearly emerged. This is manifested mainly in the rule of prevalence of state provisions in cases of conflict with regional/municipal ones; furthermore, regional and local provisions do not have a wide-ranging spectrum, but can only be enacted to face specific, territorially limited situations.
Despite these limitations, regional presidents have issued a huge number of ordinances, even going beyond the restrictive measures adopted at national level. While some of these ordinances have been suspended by regional administrative courts on the appeal of the Government, others with the same content have not. The same can be said when considering municipalities: Mayors issued ordinances for their territories even going beyond their usual powers. In both cases, the consequence has been the deterioration of the relationship with the State, the lack of coordination among national and regional/local measures and, consequently, the increasing uncertainty in the general legal framework.
Notwithstanding the attempt of the national Government to remodulate the power of Regions and municipalities with the final aim of guaranteeing organic emergency management and, above all, its coordinating role, legal and operational incongruencies are still present.
Regardless of their effective room of manouvre, if we look at the role played by subnational institutions in this emergency, what strikes most, is the shift of power from representative assemblies to monocratic actors (although they are directly elected).
Regional presidents and Mayors became de facto the only actors able to counter the monopoly of the President of the Council of Ministers, often politicising their choices in the search for media consent.
At the regional level, this phenomenon began after the constitutional reform of the end of the 1990s (constitutional law 1/99) when regional presidents got relevant powers once attributed to the regional assemblies, as well as direct legitimation based on popular vote. This growing importance of the so called “regional governors” coincided with the gradual collapse of the party system which started with Tangentopoli. Similarly, Mayors received more powers in accordance with the abovementioned TUEL, the legislative decree on local authorities.
In the most recent years, this trend has grown in importance and has been supported by the media that recognised regional and local leaders as fully responsible for the intermediate level of government, gaining national and sometimes even international visibility. The management of Covid-19 confirms this tendency: what is done at national level is replicated at regional and local level. Restrictions to personal freedoms and rights have been implemented mainly by means of legal acts produced by the presidencies without participation of the assemblies, and this poses many doubts about the democracy of the entire process.
Although urgency justifies massive governmental intervention at all levels, it is entirely legitimate to investigate the scope of which the compression of individual freedoms can reach, without the active involvement of the representative bodies. The state of emergency is not per se sufficient to avoid the fundamental principles of the Italian legal system, such as the principle of democracy and the principle of separation of powers.
The Covid-19 emergency has revealed the main weaknesses of the Italian legal system and, for sure, among its legacies, an obvious need for a better balance among the state institutions which should not be neglected by the future political agenda.