New Normality? – Abstract #10

Elisa Bertolini: Democracy and the State of Exception. The Italian experience.

The Italian experience offers some interesting insights when dealing with the state of exception and emergency situations. The 1948 Constitution does not provide for any emergency section. Nevertheless, it provides for instruments to enact whenever a situation of necessity and urgency occurs. What is peculiar of the Italian experience is the misuse (or abuse) of the law decree, which has established a governmental legislation. A more recent practice has been to resort to emergency instruments even in situations that are not properly emergencies, but rather just difficult to handle, where the connection to the extraordinary character of the situation is lacking. This anomaly has been criticized by courts, thereby leading the Parliament to amend the legislation. Moreover, the present-day economic crisis has led to the twisting of the form of government (and of State) in situations of emergency with respect to the role of the President of the Republic and of the Constitutional Court.

Der Fall Italien bietet einige interessante Einblicke in aktuelle Entwicklungen zu Ausnahme- und Notfallsituationen. Die Verfassung von 1948 sieht keine Regelung zum Ausnahmezustand vor. Nichtsdestoweniger ermöglicht sie Verfahren, die angewandt werden können, wann immer eine Krisensituation dies erfordert. Was den italienischen Fall im Kern ausmacht, ist der Missbrauch eines Gesetzesdekrets, mit dem eine Regierungsgesetzgebung ermöglicht wurde. Daran hat sich eine Praxis angeschlossen, die den Einsatz von Notfallinstrumenten sogar dann ermöglicht, wenn es sich nicht um Notfälle handelt und ein außergewöhnlicher Charakter fehlt. Diese Anomalie wurde von den Gerichten kritisiert, was das Parlament dazu veranlasste, die Gesetzgebung zu ändern. Die gegenwärtige Wirtschaftskrise hat jedoch dazu geführt, dass sich die Regierungspraxis in Notlagen in Bezug auf die Rolle des Präsidenten der Republik und des Verfassungsgerichts zugunsten der Exekutive verlagert hat.

Keywords: governmental legislation, emergency orders, President of the Republic, Constitutional Court, form of government.

This article is part of the forthcoming issue Matthias Lemke  / Ece Göztepe / Olivier Cahn (Ed.), New Normality? State of Emergency as Contemporary Government Technique.

Abstract 9/15: Elisa Bertolini (Bocconi University Milan) – Democracy and the State of Exception: The Italian Experience

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The Italian experience offers some interesting profiles when dealing with the state of exception and emergency situations. The 1948 Constitution – as her predecessor, the Albertine Statute of 1848 – does not provide for any emergency section. However, she provides for instruments to enact whenever a situation of necessity and urgency occurs (mainly the law decree, at Article 77, the powers assigned by the Parliament to the Government in case of war, at Article 78 and the substitute powers of the government, when necessary, of Municipalities, Provinces, Metropolitan Cities and Regions, at Article 120).

The fact that the Albertine Statute did not provided for an emergency section does not have to lead to the conclusion that an emergency situation (or, to use a formulation closer to the French doctrine, a stato d’assedio, état de siège) has ever been declared. The riots in Milan in 1898 or the earthquake in Messina in 1908 witnessed the enforcement of the wartime criminal military code, showing that the Italian legal system accepted the possibility of a legitimate use of extraordinary powers – even against the law – in order to preserve the State and of the legal and social order. The very same aim led King Victor Emmanuel III to appoint Mussolini as head of the government in the aftermath of the March on Rome in 1922.

In the democratic history, other situations happened that required the resort to some sort of emergency power, namely the passing of the legislative decree no. 625/1979, against the left-wing terrorism (the so-called Brigate Rosse, Red Brigades) – strengthening the police powers and compressing suspect rights – and the law no. 225/1992 establishing the Protezione Civile (Civil Defence). Under this second law, the government can pass civil defence orders to handle emergencies. Here the intent seemed more to provide for procedures and structures able to confront emergencies and to make the developments predictable rather than just to assign extraordinary powers.

Besides these ad hoc interventions, the Constitution provides for the instrument of the law decree that the government can enact in situations of extreme necessity and urgency (no further specification on the meaning of the two words is given). The abuse of this instrument made by the governments until the mid-1990s – due mainly to the weaknesses of the parliamentary executive innate in the extremely fragmented party system, the proportional representation and the subsequent coalition governments – shifted the balance from a parliamentary democracy to a so to speak governmental democracy. The long-awaited intervention of the Constitutional Court with the decision no. 360/1996 finally sanctioned this practice as unconstitutional, as in violation of both the prerogatives of Parliament – as the main law-making body – and the certainty of law.

Beside the abuse of the law decree, a more recent practice has been to resort to emergency instruments even in situations not properly of emergency – since not of unpredictable nature – but rather just difficult to handle, such as the 2006 Winter Olympics in Turin or the 2015 Expo in Milan (just to mention a few). In such circumstances the connection to the extraordinary character of the situation is lacking; nevertheless, the government exercises all the same emergency powers.

Furthermore, the present-day economic crisis has provided for further remarks on the twisting of the Italian form of government (and of the form of State, according to some scholars) in situations of emergency, namely with respect to the role of the President of the Republic and of the Constitutional Court.

The active engagement of President Napolitano in the last crisis of government (starting from the Berlusconi’s one in 2011) and as a strong advisor of governments seem to have proved right Esposito’s theory according to which – since the president is given the same powers as the monarch in the constitutional monarchy – it is up to him to actively intervene in situations of emergency. The Constitutional Court too rises some concerns, with respect mainly to a certain number of decisions marking a straightforward intervention in the competence of Parliament and government, when balancing spending review and rights’ protection.

It is convenient to consider further this twisting in the balance of powers in the light of the separation of powers and on the qualification of the Italian present-day situation as within the constitutional legal order of within the emergency.