Commentary. What is needed now is a mass mobilization to support those fighting the law and to safeguard, once again, the Constitution of the Italian Republic. One year ago, 60% of voters chose to uphold it in the constitutional referendum, and now the new rulers are betraying it once more.

We have the legal means to fight Salvini’s decree – we just need to mobilize

The mayors’ refusal to enact the provisions of the Salvini decree is an admirable act of civil disobedience and conscientious objection, aimed at laying bare the decree’s “inhuman and criminalizing” character, in the words of the mayor of Palermo, Leoluca Orlando. It is a powerful example of institutional resistance in defense of the human rights of migrants. Even more, I would point out that, for anyone who doesn’t believe in ethical statism and ideological legal positivism, i.e. the authoritarian confusion between law and morality and the reduction of morality to current law (whatever that happens to be), civil disobedience against a blatantly unjust law is nothing less than a moral duty.

Obviously, this comes at the price of the legal consequences to which the disobedient are exposing themselves. But here we are dealing with much more than just a moral act of conscientious objection. In this case, the objection is motivated by the belief that the decree is unconstitutional, since it violates fundamental human rights. Of course, mayors cannot by themselves overturn a law, nor can they be the ones to argue for the claim that it is illegitimate before the Constitutional Court. However, it is indeed possible to send the decree before the Court to get a ruling regarding its dubious constitutionality.

The process can be started by a ruling from an ordinary court, if it considers that the question regarding the decree’s unconstitutionality is not manifestly unfounded. It can also be started at the initiative of a region, if it holds that a state law or a portion thereof invades the sphere of its proper jurisdiction. In total, there are three avenues available, in the form of instruments designed for the protection of fundamental rights that can be used against the application of this inhuman and immoral law. The first can be invoked at the initiative of the migrants themselves, whose rights are being blatantly violated by the decree, and consists in the activation of the emergency procedure set out in Article 700 of the Code of Civil Procedure, which states that “those who have a well-founded fear that during the time needed to enforce their rights in the course of ordinary proceedings, their rights would be threatened by damages that are imminent and irreparable, may make a request before a court for those emergency measures that should appear the most appropriate, according to the particular circumstances, in order to secure, in a provisional manner, the effects of the ruling on the merits of the case.”

In this case, the “emergency measure” that immigrants can petition a court to take in order to protect them from the threat of “imminent and irreparable damage” to their fundamental rights would be precisely the exception of unconstitutionality that the same court has the power to raise before the Constitutional Court, regarding the particular provisions of the decree that damage or threaten these constitutionally established rights. The second legal instrument is available only at the initiative of the regions, and requires a resolution passed by one of the regional governments. There can be no doubt that the so-called “security decree,” which eliminated the residence permit for humanitarian reasons, has turned tens of thousands of law-abiding migrants into illegal immigrants overnight, de facto depriving them of the guarantees of their fundamental rights, beginning with the rights to health care and education.

These two rights are particularly crucial, since according to the third paragraph of Article 117 of our Constitution, both education and health care are “matters for concurrent legislation” between the state and the regions. Therefore, the provisions of the decree that directly or indirectly affect these matters pertain to the legislative power of the regions, even if in a concurrent manner.

And there’s more: social welfare provisions, which the Salvini decree renders off limits for the migrants it takes away legal status from, are a matter which is the exclusive competence of the regions: an exclusive jurisdiction that has been reaffirmed on many occasions by the Constitutional Court, which has argued explicitly on its behalf in various rulings (in particular: No. 300/2005; No. 156/2006; No. 50/2008; No. 124/2009, Nos. 10, 134, 269 and 299/2010, Nos. 40, 61 and 329/2011), against any encroachment on the part of the state. Thus, it is perfectly legitimate for the regions, under Article 127, paragraph 2 of the Constitution, to raise the question of the constitutionality of the law by which the Salvini decree was enacted, within sixty days of its publication in the Official Gazette, which took place on December 3, 2018.

There are still many regions in Italy governed by majorities loyal to democracy, from Lazio to Piedmont, from Emilia to Tuscany, from Marche to Campania, from Puglia to Calabria. Their willingness to send this question before the Constitutional Court will be the test case of how seriously these regions intend to take defending the principles of the Constitution, beyond mere statements of condemnation of the government’s actions.

Finally, there is a third way to obtain a proper constitutional ruling, available to the mayors who have decided not to implement the Salvini decree. In addition to the avenue being pursued by Mayor Orlando—a petition before a civil court, for which there is already precedent in electoral matters, requesting that the court ask the Constitutional Court whether the law conforms to the Constitution or not—the disobedient mayors may, if their decisions are overruled by the prefects, challenge the overruling decisions before the TAR—the regional administrative courts—and take the opportunity to raise the exception of unconstitutionality for the provisions of the decree that they deem unconstitutional.

In short, the battle for the defense of the Constitution is being fought again, thanks to the courageous initiative taken by anti-racist mayors. What is needed now is a mass mobilization to support them and to safeguard, once again, the Constitution of the Italian Republic. One year ago, 60% of voters chose to uphold it in its current form in the constitutional referendum, and now the new rulers are betraying it once more. Furthermore, this time, the stakes are much higher than the mere modification of the formal rules by which our government bodies operate. All the substantive principles of our democracy are at stake: equality, the dignity of persons, the refusal of racist discrimination, solidarity, the fundamental rights of all, and our civil and peaceful coexistence.

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