The series of measures with which the constitutional, administrative and penal judiciary has put politics in difficulty in a few weeks has aroused worried reactions: the latest is the news of the seals on the hot area of the Taranto steelworks; but the day before the precautionary decision of the Council of State had arrived with which the resolution of the Milanese municipal council relating to Area C was suspended; and even earlier that of the with which the Board itself reopened the discussion on the sale of a stake in the Municipality of Rome's stake in ACEA; and on Friday the sentence of the Constitutional Court to cancel the art. 4 of the 2011 Budget law, not encouraging viaticum for the forecasts relating to local public services contained in the Libera Italia Decree of the Monti government, which substantially resumed that forecast.
So, are the judges putting a spanner in the works of politics and hindering the processes of economic reform? Do they once again prove that they are an obstacle to the modernization of the country? And is it then necessary to reduce their possibility of intruding on fundamental political choices (national, local)?
In short.....the cases under discussion are very different from each other, and in the end they testify as much to a certain insensitivity of some judges with respect to the general context in which their decisions take place, as to a deafness of politics to the root problems of the issues with which judges ultimately become concerned.
Let's start with the case of the sentence announced by the Constitutional Court. Of course, from June 2011 to today, the perception of the country's economic situation has changed. It is perceived that profound reforms are needed in the methods of managing public affairs, rationalisations, opening up to the market also of public services, competition, privatisations. And the Court's ruling may seem like a torpedo to those who want to reform. However, the fact remains that just over a year ago the electorate, albeit under the emotional wave caused by the Fukushima nuclear disaster, thinking of voting on water and instead intervening on all local public services and doing everything possible 'herb a bundle, widely spoke out for the abolition of the notorious article 23 bis of Legislative Decree 112 of 2008. Which, from a regulatory point of view, however, did not mean an absolute no to the market and competition. In fact, as the Constitutional Court itself noted in giving the green light to the referendum, the Community regulatory framework became the reference, which in any case provides for stringent limits on direct assignments and the use of tenders for non-in-house activities. This could have been the anchor on which the legislator could have based himself to introduce new rules, which perhaps would take into account the "stability pact". Instead, he decided to re-propose the norm: the assessment of unconstitutionality became inevitable at this point.
The ILVA question has been extensively commented on: beyond the merits, which appear to be a very complex matter, what is immediately surprising is an ordinance that does not take into account the seriousness of its immediate consequences, not so much from an economic point of view, but from a social one . It is not just a question of the fate of the employees of ILVA, one of the largest plants in Europe, but of the economic and social structure of an entire city which is in desperate conditions: the municipal administration, it must be remembered, has gone into I broke down just a few years ago. It's a matter of sensitivity of the judge: and here the charge leveled at the judiciary for living in an alternative universe, in the meta-world of the laws, and not in that of real life, seems altogether justified. It can be hoped that in the Review Court, which alone is responsible for re-evaluating the provision, there will be some wiser magistrate. It is more probable that it will be found if the government and the political forces show that they are doing what they should have done a long time ago: taking measures to make the environmental situation more tolerable. It appears from the news that before the ordinance the prosecutor had repeatedly urged the national government and the Region to intervene, warning about the inevitable consequences. Apparently nothing was done until the magistrate's decision was imminent. However, the problem is also when the Court of Review will pronounce: in principle, the judicial holidays begin on Wednesday, which last until the fifteenth of September. Then there are the timing of the procedure… Regardless of the form in which it is expressed, Minister Clini is right to worry that the review will take place quickly.
Finally, the administrative judge: the Council of State with the decisions ACEA and the Municipality of Milan entered into very delicate matters concerning the functioning of an elective assembly (ACEA) and the degree of compression of a private interest (Municipality of Milan). In the latter case, in truth, it seems that what has already been said for the investigating judge of Taranto can be said for the supreme organ of administrative justice: with the added aggravating circumstance that the methods of protecting the injured private interest appear specifically completely disproportionate to the alleged damage (especially considering that in any case the operation of area C would in any case have been suspended in August). The assessment in the ACEA case must be much more prudent, at the origin of which is the very unresponsible behavior of the opposition (which presented thousands of amendments to the resolution for the sale of the shareholding in ACEA) and of the majority, which in a stormy night session he decided not to discuss it. Once again the judge (here administrative) had to make up for the incapacity of politics to behave responsibly.
The conclusion? That these cases in no way suggest that the judicial order has gone beyond its scope. But some considerations certainly arise: in the first place, that in many cases the judges do not appear to apply the law with the wisdom that the surrounding conditions would require and forget the need for proportionality between the measures they impose and the effects they cause: which it is particularly relevant when dealing with issues of great social importance. And this is a matter of culture of the judiciary which has always been discussed and on which the judicial order appears to be lagging behind (moreover, it does not seem to be an Italian problem alone: think of the German Constitutional Court which postponed the the compatibility of the ESM, a crucial mechanism for the stability of the Euro). Secondly, however, that too often judges are run over by issues that should have been resolved before, by politics or by its behaviour. As in many other cases that occupy the pages of the newspapers, in Taranto as in Rome the judge also had to deal with things that politics should have taken charge of for some time.
