Defending the Law: Why an Italian Judge Opposed the Lockdown

May 6, 2021

I had the great pleasure of speaking with Professor Sabino Cassese, constitutional expert and emeritus judge on the Italian Constitutional Court. He was one of the only judges to oppose the lockdown. This is what he said.

Could you tell me how you think the government of Giuseppe Conte handled the Covid-19 crisis from a constitutional perspective?

I think the government 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 treated this crisis as a matter of public safety, when instead it is a question of public health, therefore it did not consider 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. 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 (Dpcm), which does not require a plenary meeting of the Council and is not scrutinized by Parliament. So, I think the government erred on these two points.

Before we expand on these matters by analysing the individual Law Decrees, let us begin where it all started. On 31 January of last year, 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 led to a confusion of powers and an inefficient response to the epidemic.

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.

On 23 February, 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 unlawful. Now this fact was later recognised by the government itself, because it revoked the decree with the following one which entered into force on 25 March. In any case, it was illegal for two reasons. First of all there was no deadline. 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 restrictions to fundamental rights during national emergencies. These are the necessity of a prior act of parliament; a limited and defined period; specifically defined ends such as public health or security; and in some matters, such as the restriction of personal freedoms, a judicial ruling.

Number of Decrees between March and September 2020

On 20 March the Minister of Health banned access to public playgrounds, green areas and any outdoor activity. On 22 March 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.

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.