Was Italy’s Lockdown Illegal?

An interview with Professor Sabino Cassese, emeritus judge on the Italian Constitutional Court

Italy's lockdown - Professor Sabino Cassese

An interview with Professor Sabino Cassese, emeritus judge on the Italian Constitutional Court

I had the great pleasure of speaking with Professor Sabino Cassese, constitutional expert and emeritus judge on the Italian Constitutional Court. We discussed the clash between state and regional powers, whether the lockdown was illegal and its implications for our legal order.

Good morning Professor Cassese, thank you for taking the time to speak with me for Italics Magazine. To start our interview, could you tell me how you think the Conte government has handled the Covid-19 crisis from a constitutional perspective?

I think the government has pursued the wrong path on two main fronts: the first concerns relations between the state and the regions, and the second has to do with the rights of the citizens. Firstly, according to article 117 of the Italian constitution, authority on the matter of international disease prevention is reserved exclusively to the state, and Law No. 388 establishing the National Health Service, which was passed in 1978, expressly states that the Health Minister is empowered to execute urgent measures in the event of an epidemic. This is the first aspect. Secondly, on the question of individual rights of the citizens, the government has treated this crisis as a matter of public safety, when instead it is a question of public health, therefore it has not considered the relevant constitutional limits that safeguard fundamental rights. The first of these limits is that any decision to curb constitutionally guaranteed rights must take the form of a legislative act. To take an example, I read the Coronavirus Act that was approved by the British Parliament, and it is almost 350 pages long. In Italy, on the contrary, the decision was made to proceed on the basis of a special type of decree, the so-called Decrees of the President of the Council of Ministers (or Dpcm), which does not require a plenary meeting of the Council and is not scrutinized by Parliament. So, I think the government has erred on these two points.

A concentration of power in the hands of the President of the Council of Ministers?

Exactly, to the detriment of the parliament and the government itself.

Before we expand on these matters by analysing the individual Law Decrees, let us begin where it all started. On the January 31, in the face of the global rise in the number of Covid-19 infections and deaths, the Conte government declared a six-month state of emergency. Do you think this decision should have been brought before parliament?

Well this proclamation was lawful because it was based on the 2018 Legislative Decree no. 1, which in the event of a national risk to public safety grants the government extraordinary powers for predefined and limited periods. And it allows for emergency proclamations to be made by the Council of Ministers, so this was correct. The error lies precisely in choosing this route instead of appealing to the public health legislation inscribed in the single text of 1934, which along with article 32 of Law No. 388 would have placed the state above the regions and rendered the Ministry of Health the highest authority on these matters. Instead, the government empowered another institution, the National Civil Protection Service, which doesn’t have the experience to deal with public health emergencies such as a pandemic. All this has led to a confusion of powers and an inefficient response to the epidemic.

On February 23, the Conte government issued Law Decree No. 6, which gave a legal basis to the successive measures that were enforced in order to contain and manage the Covid-19 emergency — what we commonly call “the lockdown”. It was eventually revoked on March 25. How do you judge this decree?

The decree was constitutionally unlawful. Now this fact has been recognised by the government itself, because it was revoked by the following decree which entered into force on March 25. In any case, it was illegal for two reasons. First of all there was no deadline, i.e. a defined period of time within which the lockdown measures would be implemented. Secondly, after having listed a series of measures that the government would enforce, the decree read: “and the government is authorised to adopt any further measures for the containment and management of the emergency.” This is too vague. After the Second World War, when the Italian constitution was being written, the drafters wanted to make sure that what happened in the Weimar Republic would not reoccur. For this reason, they laid out some clear precautions to follow in case of the need to establish limitations to fundamental rights during national emergencies. These are the necessity of a prior act of parliament; a limited time frame; specifically defined ends such as public health or security; and in some matters, such as the restriction of personal freedoms, a judicial ruling. Furthermore, in rulings No. 8 (1956) and No. 127 (1995) the Italian Constitutional Court clarified that any law must define executive powers in both form and content. This process was not done here.

On March 20 the Minister of Health banned access to public playgrounds, green areas and any outdoor activity. On March 22 both the Minister of Health and the Interior Minister forbade every person to leave their dwelling, even if it was a temporary one. To be clear, these and other restrictive ordinances based on this decree were unconstitutional?

Yes, since they rested on a decree that was unconstitutional, they in turn were against the law. The problem is that these same mistakes were repeated in the various Dpcms that followed the second Law Decree on the limitations to fundamental rights.

This is the Law Decree issued on March 25. Unlike the first, it listed the precise measures that would be implemented and gave a deadline of 30 days after which they could be extended. However, it justifies the severe restrictions by referencing article 16 of the constitution, which allows for limitations to freedom of movement in order to safeguard public health. Does this include the ability to walk out of one’s own home?

Yes, I think so. Freedom of movement refers to the public space, and although we don’t have great precedents in the matter, I think article 16 does also include the ability to move out of one’s place of residence or domicile. What we can express doubts about are the limitations that haven’t been imposed in a general manner. You mentioned article 16 of the constitution. This article only allows restrictions to freedom of movement through a general law. It is reasonable to allow people to go and purchase medicines and sanitary equipment from pharmacies, but why have they also been allowed to purchase newspapers from their local newsstand? A general law to restrict movement should include this as well. I agree that the purchasing of newspapers should be allowed, but still, the question must be asked.

From the point of view of international law, the limits to the restrictions of essential rights are set out in the European Convention on the Rights of Man, the UN Pact for Civil and Political Rights, and the Treaty on the European Union. To all three of these treaties Italy is a signatory. The fundamental rights that are here protected can be limited during an emergency only under conditions of necessity, temporariness and proportionality. Do you think the Conte government has exceeded these criteria?

I think the government has responded by maintaining a certain degree of proportionality. There is however a third problem in addition to the two I have already mentioned. This is the unclear and contradictory nature of the various Decrees of the President of the Council of Ministers taken as a whole. For example, if the government had instead chosen to fix general criteria without entering into details (200 meters from home, etc.) with a single law decree, and on the basis of this law had issued specific ministerial ordinances instead of Dpcms, this would have been much more clear and reasonable. Instead a massive confusion has taken place. Decree Laws, Dpcms, separate ministerial ordinances, separate ministerial circular letters, ordinances by presidents of the regions, ordinances by mayors of individual communes. A legal disorder that has only been remedied by the good sense of the Italian people, who in this case have revealed themselves to be much more behaved and reasonable than we usually tend to assume.

Since the beginning of the crisis, Italians have been required to carry a form justifying the reasons for their movements. Is there a problem of constitutionality here?

No, this is a system that is backed up by various legal norms as a way of making the citizen responsible for his or her actions by motivating why they do certain things. This is a way of avoiding ad hoc authorizations.

Do you think this lack of legal clarity has led to excesses on the part of law enforcement authorities?  

Not for the most part. In general, there have been many controversial cases where doubts have been raised on certain police actions, mainly in Liguria and Campania. Many cases are pending before regional administrative courts. However, it doesn’t seem to me that there has been great conflict between citizens and law enforcement, which once again is a sign of the reasonableness shown by the Italian people, even in the face of some fundamental errors made by the government.

On the question of communication, the President of the Council has mainly made use of Facebook live streams to communicate his decisions, often late at night and without the possibility of a rebuttal. Do you see this as a problem?

No, I think it would have been hard to set up a process whereby there could be rebuttals. However, what has been a problem is the lack of transparency shown by the so-called “expert task forces” in their relations to the government. I think that from the beginning these bodies should have been placed before the public. They play an important role as specialised expert bodies and are necessary, but their knowledge and positions should have been made available to the collective.

Do you think there has been a lack of public scrutiny of the government?

Well the press has criticized the government a good deal. What has been lacking is transparency on the part of public authorities and parliamentary scrutiny. But I would say that government scrutiny has fallen short as well, because of the excessive centralization of decision-making powers in the hands of a single person, the President of the Council. Unfortunately, this office hasn’t been able to bear the weight.

Finally, do you think all these legal errors we have been talking about have established a dangerous precedent?

Yes, I think that in not pursuing the route set out by all the relevant norms and procedures, the government has created a dangerous precedent, and in the future someone else will be able to follow this path. To conclude, I would like to make a linguistic point. Never before have two particular words been used to the current extent. These are “governor” to describe the presidents of the regional councils, and “premier” to refer to the President of the Council of Ministers. Both these terms are wrong. The former because it refers to the leader of a federal state, such as the Governor of Ohio or the Governor of California in the US, and not to the president of an Italian region. And the latter because a premier is something completely different to what we have. The President of the Council of Ministers is described in our constitution as being primus inter pares, or first among equals, while a premier, or prime minister, is someone who sits higher than his or her fellow ministers. Since words matter, not only in law but also in society at large, the usage of these two terms reveals that a constitutional mutation has occurred. This is very worrying.

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