“Legitimate decision” – Libero Quotidiano

The government defied the order of the president of Sicily Nello musumeci which provides for the closure of critical points and reception centers for migrants on the island. The appeal has already been communicated to the presidency of the Sicilian region and it was filed with tar. The appeal starts from the consideration that the management of the migratory phenomenon is the responsibility of the State, not of the Regions. And therefore the order is illegitimate. But is it really so? Second Edoardo Raffiotta, professor of constitutional law at the University of Bologna, who published a book on the subject of emergency ordinances before the pandemic broke out, the one adopted by Musumeci is a fully legitimate measure. “Having studied the subject for the last five years, I think I can speak about it with a little more conscience than those who think they are criticizing legal acts without knowing the sources of law on which this ordinance is based,” he says. The sources of law referred to by the professor are very precise. “Musumeci’s disposition is legitimized by Law 833 of 1978, of the National Health Service, which, in its article 32, provides for the power of ordinance in repeal of the law. In practice, administrative acts that can be adopted for a limited period in the event of a health emergency. A legal institution that we have come to know in these months of COVID-19 with the orders issued by ministers, mayors and regional presidents ”.

And in fact, with the closure and the measures to combat the epidemic, there was no lack of opportunities to experiment with the emergency decree. “Article 32”, adds Professor Raffiotta, “gives the government and, in particular, the Minister of Health the power to issue emergency ordinances. However, the same power is reserved for mayors and governors when emergencies are local and limited to their respective territory of competence. Therefore, critics are wrong to argue that President Musumeci has adopted an ordinance that invades state powers “It is true that these are powers of the State but Law 833 confers them in particular to the President of the Region”, clarifies the professor of constitutional law, “if there is an emergency throughout the territory or in part of it, the governor has the right to adopt an administrative act that repeals the powers of the State and must be executed by the powers of the State and by all administrations. “In Raffiotta’s opinion, even the argument that Musumeci has invaded a territory of State jurisdiction: the management of the immigration and reception centers does not hold. “If there is an outbreak within these centers,” he explains, “and it is found that there are no conditions to maintain the health of the guests with measurements that we must all adopt, starting with distancing, and we know that these centers have always been overcrowded, the ordinance is fully justified.

But there is more. Given the permeability of hotspot towards the surrounding area, the governor has an additional right to intervene. “When there is an emergency situation with a Covid outbreak within a reception center, an outbreak that can spread to the region, especially if the reception centers are located in inhabited centers“In fact, Raffiotta points out,” if, as it happens, immigrants can easily escape from these structures, the emergency grows. Therefore, the conditions for the application of article 32 are strengthened. Naturally, the executive can challenge the provision before the Administrative court, like it did yesterday. “And the administrative judge could annul the order but not because it is illegitimate,” concludes the professor, “if perhaps because he considers it disproportionate to current conditions.”