Le implicazioni costituzionali del potere sindacale di ordinanza

In the last five years mayoral ordinances have gained relevant prominence in determining security policies within urban areas. This was the result of the importance gained by mayors within the City Council framework, following law nr. 81 of 1993, which has introduced the direct election of mayors and has transformed them into the main receivers of all the needs, of all the instances and fears of the local communities. They have thus been called “from below”, and with urgency, to face the problem of urban insecurity. This is an issue which has blurred boundaries and which does not only refer to public order, but also includes an overall set of fears and incertitudes of different nature. In the present work, after a sociological introduction describing the evolution of the demand for security – which has gradually developed from a request for protection against criminal acts into a request for “livability of towns” and “quality of life” – it has been thought appropriate to go over the stages of development of Italian social security policies. These policies range from the “awareness campaigns”, coinciding with the first half of the 1990s, to the so called season of protocols followed by the establishing of a “stabilised emergency” and, with it, of a power of ordinance which can persist in time, worthy of being monitored, because it is always more relevant in the system of the sources of rights. After having framed within a constitutionalist prospect the issues of the nature, of the presuppositions of adoption and of the limits drafted by legal doctrine and by constitutional and administrative decisions, with reference to the delicate theme of contingent and urgent ordinances, the analysis has focused on article 54 paragraph 4 T.u.e.l. (Local Government Unified Code) as amended by law 125, dated 24th July 2008, according to which mayoral ordinances seem to have acquired completely new characteristics. As a matter of fact mayors, in their capacity as government officials, now have the power to adopt also contingent and urgent measures aiming at averting major dangers which may threaten public safety. In the light of the changed legal framework it has been decided to examine the problematic consequences produced by the prevision of a “regular” use of mayoral power of ordinance followed by the choice of the Lawmaker to entrust to a decree of the Home Secretary the task to define the boundaries of this new power. Furthermore, this work also examines the doubts about the constitutional legitimacy caused by the enforcement of the ordinances, considering the incidence of most of them on issues already covered by statutory reserves as well as the incidence on constitutional rights. Going over the main fields of intervention of mayors (e.g.: prostitution, begging, alcohol and drug consumption, urban cleanliness, unlicensed trading...) and making a sample test of some of the most significant ordinances adopted, it has been highlighted their non compliance with the limits given by legal doctrine and by constitutional and administrative decisions to make the “extra ordinem” ordinance power consistent with the constitutional framework. The aforementioned limits consist in: the extraordinariness of the event faced; the urgency to make provisions when having to deal with an impending danger or damage; the respect for the constitutional and legal principles and for statutory reserves; the provisional character of ordinances; the proportion between the exercise of power and the emergency context. The incorrect resort to such measures has highlighted how the intervention of mayors can often run the risk of taking the place of the competent acts. On the one hand it should be the task of Parliament – especially when civil rights are involved – to predispose the most suitable regulation, so that it may direct the ensueing local acts, avoiding thus unacceptable differentiations within the national territory, which contrast with the value of unity of public order and security. On the other hand the power of mayors should not cross its boundaries, depriving thus the sphere of action of the City Councils. In the light of this situation it has been pointed out how, within a wider scope, the strengthening of the powers of mayors in matters of urban security can be considered as the result of a general and widespread lack of confidence towards the activity of both local and national representative bodies. It can also be considered as the symptom of the shifting of the “political-administrative” centre of gravity from the City Council to a sort of “sheriff-like mayor” whom, in order to comply with the wishes and moods of the electorate, adopts some unprecedented measures fated to undermine civil rights. The effects of the reform of mayoral ordinance powers thus reveal a dangerous regression of the levels of local democracy. The sliding of functions from the City Council to the Mayor witnesses a process which, even if it is justified by the direct election of mayors, is also the cause of a deep change in the meaning itself of political representation. In front of such a complex and worrying picture, where the fundamental principles of the constitutional framework seem to be put into question by the adoption of ordinances, the “reactive capacity” of administrative decisions, through which some single measures have been cancelled or temporarily suspended, appears to be insufficient. For this reason the outcome of the judgement of constitutional legitimacy - concerning article 54 paragraph 4 T.u.e.l. for the violation of articles 2, 3, 5, 6, 8, 13, 16, 17, 18, 21, 23, 24, 41, 49, 70, 76, 77, 97, 113, 117 and 118 of the Constitution - is awaited with hope. While expecting the final decision of the Constitutional Court it is just the case to point out how the future developments of this outcome are of great interest, considering that, in case the Constitutional Court should assert the validity of the question raised, then the mayoral ordinances, according to article 54, paragraph 4 T.u.e.l., bereft of the requirements of contingency and urgency, would be considered unlawful. The exercise of mayoral power of ordinance would thus be redifined in a restrictive way and it would also have to comply once again with the traditional limits of administrative and constitutional decisions. We inform readers that the present work was finished before the decision of the Constitutional Court nr. 115/2011.