ROME — Italian law professor Maria Lucia Di Bitonto has written a stinging legal criticism of Italy’s ongoing national lockdown to stem the spread of the coronavirus, warning of a serious abuse of authority and an effective suspension of the rule of law.
Almost three months after the January 31 publication of the government declaration of a state of emergency related to the spread of COVID-19, “most of the constraints on individual freedoms and on production activities aimed at dealing with the pandemic find their legal justification in decisions of the executive or of regional or peripheral institutions,” Prof. Di Bitonto writes in Milano Finanza.
The absence of legislative actions represents a serious legal and political breach, she states, since “the only source empowered to limit freedoms is the law, a direct emanation of popular sovereignty.”
“The political importance of the many legal reservations established by the Constitution regarding freedom is crucial,” Di Bitonto continues, because “they ensure that the only source authorized to alter people’s lives is that which is a direct expression of the sovereignty of the same individuals against whom the restrictions are intended.”
Despite the fact that the law is no longer the only or the primary pillar of the juridical system and despite the many defects of current legislative texts, the centrality of the legislative process continues to possess an indispensable quality for democracies, she argues, since it arise from a public and transparent parliamentary debate among elected officials in the presence of public opinion.
It would be a fatal mistake to treat all this as an obsolete and outdated theory or to treat the fundamental rights of citizens as nothing more than an academic question for sterile intellectual discussions, she holds.
“History has always put forward only one antidote to the arbitrariness of the institutions that hold power and this antidote is called the rule of law, which is a regime built on liberal democracy centered on the law with the function of guaranteeing individual rights,” Di Bitonto asserts.
It is the primacy of the law that effectively minimizes the unavoidable share of arbitrariness always inherent in the exercise of power, she contends, and thus it is to be hoped that in the so-called phase 2 of the lockdown “the law will assume new centrality.”
“It is necessary to avoid, in fact, that at the end of the pandemic, Italians find themselves not only more indebted, but also more exposed to the abuses of the many powers that have multiplied in our country,” she concludes.
On Sunday, Italy’s unelected Prime Minister Giuseppe Conte announced that contrary to what had been declared previously, even in the next stage of the lockdown, which begins on May 4, citizens will be obliged to carry with them a written “autocertificazione” whenever they leave home, explaining the legally justifiable motive for being outside their residence.
As of May 4, citizens will still be subject to arbitrary stop checks whether they travel on foot or by car, and those deemed not in compliance with established norms will be punished with citations and stiff fines.