The pandemic has led governments around the world to consider emergency measures to contain the virus, safeguard human health and protect the country’s economic and industrial system for the future of societies. In the case of Italy, this emergency status is still in force, after the first decree of the Prime Minister published in January 2020 officially declaring a state of health emergency for the country. The measures taken have been repeatedly argued to be unconstitutional given that the Italian Constitution doesn’t provide for a ‘state of emergency’. Let’s start from the fact that I don’t contest the necessity of the measures taken in response of an urgency such as Covid-19 pandemic but given that the government has moved into a grey legislation area, there is a need to talk about legitimacy because it is not a formality but a substantial pillar of democracy. 

The danger of democratic backsliding with emergency powers:

Taking from Bermeo’s notion of democratic backsliding, in Italy the pandemic has been addressed by letting the executive power– the Prime Minister – temporarily take over the legislation powers of the parliament and it is passing Decrees of the President of the Council of Ministers (DPCM) as effective laws. This emergency solution to tackle the heath danger has to be evaluated for its long-term outcomes. This solution, in fact, can be a challenge to democracy if seen as an example of executive aggrandizement: when the incumbent government is gathering more and more institutional power, one of the conditions for democratic backsliding. The danger of democratic backsliding with these unconstitutional measures taken during times of crisis can create a precedent, and therefore, allow for more ‘emergency unconstitutional measures’ in the future, compromising the democratic system of check and balances instituted in Italy where the powers – executive, legislative and judiciary – are separated among the governmental bodies of the country. This paper provides an extraordinary comparative analysis on the regulation of the use of emergency power in European states, and attempts to figure out how, and to what extent current laws preserve the political order.

Italy’s regulation on emergency measures during times of crisis:

The Italian Constitution, unlike others, does not contain a general rule for a “state of health emergency” or “state of emergency”. It provides for the “state of war” and says that the Houses of Parliament shall decide on the state of war and confer on the Government the necessary powers. But this provision (art. 78 Const.) is of strict interpretation and it is believed that it cannot be extended to other emergency situations such as epidemics, natural disasters or other exceptional situations.

The constituents that worked on the Constitution Charter deliberately avoided providing a special regime for situations of need other than war. In 1947 it was fresh the memory of the Fascist totalitarian regime and the Weimar Republic – the political regime established in Germany in 1919 after the end of the First World War. Its constitution contained a rule, Art. 48(2), on the state of necessity, which is believed to have favoured the National Socialist Party’s seizure of power: the fear was very strong that the provision of extraordinary powers could favour, as in that case, authoritarian drifts – and therefore represent a challenge to democracy.

Covid-19 crisis and institutional response:

The spread of the Covid-19 epidemiological emergency has forced the adoption of urgent measures to limit the fundamental freedoms of citizens. Similar measures have been taken before in response of terrorist threats, when the danger was felt so close that the human rights on liberties and civil freedom were considered to be second to the right to live.

The emergency calls for an intervention proportionate to the gravity of the situation and necessary to protect other constitutional values. In the current health emergency represented by Covid-19, among the rights compressed with the measures adopted we find those enshrined in Articles 13, 16, 17, 18, 24, 33 and 34 of the Italian Constitution, and lastly the right to privacy protected by the Charter of Fundamental Rights of the European Union in Article 8. The compression of these rights took place in the name of the right to health under Article 32 of the Constitution. Today, the whole world is experiencing a global pandemic that has led everyone to a forced lockdown, so much so that the urgent need to safeguard human life has reduced the way we live, work, study and relate to each other. Many are the conversations whether the measures represent an abuse of the emergency powers: extreme measures, such as establishing a curfew, are still central to the legitimacy argument. Italy has it, whereas pro-Anglo-Saxon countries, where personal freedom is perhaps a more protected issue, have not yet implemented a curfew yet.

Some constitutionalists argue that secondary acts (as the DPCM) do not have the same legitimacy as primary acts (ordinary laws), because they are not adopted by the representatives of the Italian people after a political debate that ensures that even minorities can express their views, but by the government, which is the expression of only one party. Opposition, vital pillar of democracy, then is not part of the country’s policymaking at the moment. Therefore, the ordinary law and the DPCM have a difference not only of form, but of substance: the involvement or not, of the opposition forces in the choice of the reasons that may determine limitations to constitutionally recognised rights. This involvement is a guarantee for all citizens, even when Parliament is only involved ex post – i.e., when a decree-law is converted into an ordinary law. 

Emergency powers and the Italian Constitution:

To overcome illegitimacy, the situation must be brought within the scope of the Constitution in any case, and the measures adopted must be temporal, i.e., they must cease at the end of the emergency when normality is restored, and for this reason is necessary to define a state of emergency, define a time frame or a reaction time. Once the emergency is over, the Parliament should have the time to make an ordinary law to regulate uniformly the rules of conduct to be followed, or a constitutional law could be made to regulate the right government-parliament relationship in cases of epidemics – something like “live and learn”, providing in the constitution for the specific case of the health emergency. Disaster management in Italy, according to the Constitution, should be handled by the country’s civil defence and civil protection systems, as it happened with the L’Aquila Earthquake of 2009 or terrorist attacks. Given the many scandals within the Italian civil protection, and the inefficiency often pointed out of this institutional body, the covid-19 crisis has been decided to be managed by the top executive of the country directly – the Prime Minister. This decision might have been the most sensible given the institutional complexities of Italy, nevertheless this decision has moved Italian government decision-making move to a legal grey area.

Covid is certainly an emergency, but only when it erupts, for a few months afterwards at most. Then, there is the time and a way to return to ordinary legislation with some rare need for urgency as conditions change suddenly (new cases, variations, closures and openings of regions, etc.). For example, the colour of the regions and what can or cannot be done could be decided by parliament and then given power to the government to switch on and off as conditions change.

Resolving democratic loopholes that emerge during times of crisis:

Democracy is handed as a very solid principle, which adopts unquestionable precepts, and which cannot change except in very slow cycles. This slowness becomes a handicap as the world gets faster, in fact flexibility could be a more effective approach in the new world dictated by digital intelligence and fast-moving industries. How could we make democracy more flexible? In order that it keeps pace with the times and the development of society and its ever-changing means. How can we make democracy walk at the same pace as society? In order that we talk about a system that represents society – the current society, not the Italian society of the 20^th century.