Our freedom risks going up in smoke

by Sara Simon and Nerio Montesel
Current Events

Quarantine, social distancing, sense of responsibility, limitation of personal liberties, medical masks, self-certifications, gatherings…” are all terminologies that have become known to us due to the new Covid-19 pandemic era which has entered and disrupted our daily lives. What we are living today can only be found in times of war, and this is precisely the similarity used regularly by those who govern and those who inform. This comparison, however, has led to more than one inquiring mind wondering whether or not it has reason to exist, or if it is just a gimmick for simple-minded, notoriously careless mass communication.

What is necessary for every good citizen, especially in this historical period, is to be keenly curious and desire more, comprehensive information. That means consciously avoiding dwelling only on the first detached “official” report and always push further towards the processing of pre-packaged information in order to achieve a better understanding of reality. It is our duty to question and, like Diogenes, walk with a lantern, not searching for mankind, but searching for the truth with the appropriate curiosity and open-mindedness necessary to face any new exploration, be it physical or, as in our case, cultural.   

The pandemic appears more as a warlike tale in which mankind clashes with the invisible enemy.

The focus of the considerations that will follow are based on the state of limitation of personal and collective freedoms imposed by the decree of the Cabinet, on the basis of the regulatory power provided by Article 17 of Law No. 400 of 23rd August 1988. On closer inspection, these restrictions are broadly justified as being measures to withstand the uncontrolled spread of the virus, and to date they are the only effective means of fighting the epidemic. Frightened by the invisible threat, these restrictive measures have been almost always accepted passively by Italy’s population. However, conscientious jurists could not fail to see the danger behind the ease with which such measures were adopted.
Believing that all this is peaceful and normal is a misjudgement, so is consenting to the restriction of one’s freedom through an administrative act. In fact, let us remember that restrictions on personal freedom, as well as on freedom of movement – provided by Article 16 of the Constitutional Charter – must follow the principle of reservation by law, that is: the exclusive competence of ordinary legislation to regulate the forms of restriction. Therefore, a Machiavellian manoeuvre, i.e. “the end justifies the means”, would make it possible to legitimise what happens under circumstance of necessity by prohibiting alternative solutions, is in any case perceived as a falsehood because it conflicts with the possibility of enjoying freedom par excellence. Freedom, which was gained through the cost of wars and bloodshed, and that we are adamant not to give up. Therefore, accepting not only the sacrifice of having to remain segregated at home, but also the interruption of non-essential productive activities in the middle of a pandemic. Let us not give in to the erroneous conviction that there is a hierarchy of rights in the Constitution. The right to health, legislated in Article 32 of the Constitution, does not prevail over the right to freedom, legislated in Article 13 of the Constitution. And if this is the case, regardless of what is written in our Constitution, we should ask ourselves whether or not we really have a democratic system.
Even though it has been repeatedly stressed that every decision politically taken conforms with medical and scientific opinion with considerations of the general system, the feeling is that this is actually not the case and that the additional basic needs of the State and its citizens are not being considered – as they should be – but are being manipulated.
It is therefore a fact that our democratic system empowers those who govern to decide how and when to restrict individual and collective freedom for the greater good. The Constitution, however, does not consider the state of emergency declared on the basis of the Legislative Decree 1/2018, namely the Civil Protection Act, which is in fact a common law and has no constitutional role. This Act, in fact, was designed to deal with situations similar to natural disasters such as earthquakes and floods, but not exactly a viral pandemic.
What is most certainly similar in the Constitution is the state of war, which should in any case be decided by Parliament and declared by the President of the Republic.

Is it perhaps for this reason that the current narrative of the pandemic appears more as a warlike tale in which mankind clashes with the invisible enemy? We do not know.

What is happening, however, represents an unprecedented situation from the historical viewpoint of the law. As you can imagine, in the absence of precedents this adds to uncertainty, discontentment and contradiction.
The Government’s diligence in carrying out mass containment in defence of its citizens’ health, inspires another order of reasoning. By exaggerating, we should ask ourselves why the State is doing its utmost to study, limit and defeat the virus today, rather than being so diligent in banning other factors that lead to a high mortality rates during times of peace. Take smoking, for example, which is responsible for about 80,000 deaths a year in Italy, without considering the social and economic costs.
The widespread belief that there is a clear reason to maintain the commercial legalization of tobacco in the State’s interest in the revenue generated annually by the sale of tobacco must be reduced in the light of official data. After all it is thanks to the tobacco trade that the State collects about 14 billion euros annually, spends between 7 and 8 billion euros directly on treatments and therapies and finally zeroes the commission with the social costs resulting from invalidity and many deaths. Ultimately, what is earned from tobacco is spent by the State on direct and indirect costs of free consumption.
It goes without saying that we are all well aware that cigarettes are only harmful to smokers – excluding passive smokers – while Covid-19 requires us to protect others from ourselves. However, it is interesting to note that there is a substantial acceptance of the inevitable deaths caused by what the law allows. This dulls the conscience and creates a distorted but clear-cut distinction between what is right and what is wrong, so deep-rooted that addressing such issues is almost unthinkable. Yet do lung cancer patients not deserve the same compassion that we have for Covid-19 patients? And why should the State, in showing that it considers the right to health to be central, not protect citizens in this case too? It is clear that tobacco consumption does not generate a crisis in the intensive care wards. A crisis that in any case does not affect the hospital system as an inevitable injustice but is the result of accurate choices to define the health system. In the last 10 years, in fact, 37 billion euros have been cut in health care, which has resulted in 70,000 fewer beds, blocked turnovers and consequently fewer staff members available. This has led to the recent rush to recruit medical interns and recall staff members who are either on leave or retired.
To sum up what has been said, the logic that has guided and still guides some fundamental choices by those at the helm of our State is rather elusive, ambiguous and contradictory. So, if the choices of the captain are not clear, it is logical to expect discontent and unhappiness within the crew.  It is preferred to refine the spirit of observation and fully understand the concept of conscious citizenship so that those who find themselves in the condition and obligation of having to make decisions, do so knowing that they are presenting themselves to an attentive, cultured and informed audience. An audience ready to applaud drastic measures to challenge simple measures, but always in the face of a cognitive process based on the critical processing of all the information we have today.

  • Alessandro Cassiani, La decretazione d’urgenza e la costituzione a tempi del covid-19, in Fisco e Tasse, reperibile al sito https://www.fiscoetasse.com/approfondimenti/13631-la-decretazione-d-urgenza-e-la-costituzione-ai-tempi-del-covid-19.html
  • Rapporto FUMO Eurispes 2017
  • OMS – dati 2017
  • Report Fondazione Gimbe – settembre 2019