The palace is sacred. Not in a manner of speaking. Here, on a step higher than the hill overlooking Rome, when the Papal State still reigned over the Caput Mundi, stood the "Sacra Consulta", the justice of God. Church affairs in earthly life. Those two monumental columns, which climb up a facade as impetuous as it is adorned with daring architectural embroideries, now mark the electronic entrance into the Corte delle Corti. The Supreme one, that of the laws. The gaze of the Palace catches sight of the skyline of Rome, straight towards St. Peter's. Cross the street, a few meters, and you are in front of the Quirinale. On the one hand the Constitutional Court, on the other the Presidency of the Republic. According to the Charter of Laws this is the Hill of guarantees. The last resort for the balance of power, the last bastion to unravel a perennial conflict between institutions that compete for powers and competences with no holds barred bludgeoning. Once, here, before Covid, the magnificence of the institution illuminated the eyes with gilded rooms and ceremonial rites of other times. All over for the moment. Coronavirus security has placed those intact black robes, adorned with golden lace, reserved for Judges of Judges in the closets.
Republic, not State
Also in the safe is the gold collar depicting the "Republic" which has always been around the neck of the highest togas, the Constitutional ones. Female effigy of the "Republic", and not of the State. Not a small difference. Indeed, the Republic is also the State, but not only. Republic are also the Regions and Municipalities. Not a primacy of one over the other, but the just and constitutional balance of powers. When you enter the Palazzo della Consulta everything has changed, but the grandeur of the biography of the judges that compose it is such as to preserve all the authority of the judging panel.
The Amato-Barbera
In the corridors transformed into art galleries you see the most studied of public law manuals passing in the flesh, that Amato-Barbera that generations of jurists have always considered a "Gospel". Giuliano Amato, vice president of the Constitutional Court, that Dr. Sottile, to whom everyone recognizes his eternal candidacy for the Presidency of the Republic, walks with a brisk and breathless step. In the corridors thinks Augusto Barbera, another judge who has marked the history of constitutional law. In the Audience Hall, transferred to the attic of the building for virus safety, the dispute of disputes takes place. The clash is one of those titanic. On the one hand the State, that of Palazzo Chigi, seat of the Presidency of the Council of Ministers, and on the other the Autonomous Region of Sardinia. Giancarlo Coraggio, President of the Constitutional Court, governs the session with the authority of someone who makes himself understood with a glance. When he yields to Silvana Sciarra, the first woman elected by Parliament as a constitutional judge, the scepter of the report on the case under discussion knows that he has not asked her for a walk in the park. He does not say it openly, but reveals a veil of sarcastic irony for an appeal written directly by the head of the government with 80% of the contested articles, as if the Sardinian region had not even got one right.
House plan, the massacre
Of the 29 articles of the law on the so-called “Piano Casa 2”, only 4 remained standing, without appeal, the most insignificant. It takes the grace of the Judge Rapporteur to summarize that swag of 89 pages with which the government cuts into slices, or rather tempts us, the "constitutional" aspirations of the Region. At issue are the volumetric increases for hotels and residences, parking for campers and the rehabilitation of the building sector of the island. Detailed matches, marginal with respect to the real object of the dispute: the power of the Region to be able to govern, without medieval interference, its own regional territory. At issue is one of the foundations of the Constitutional system: the exclusive power of the Sardinian Region in matters of "territorial governance" and "landscape protection". The State, that of Palazzo Chigi and, above all, that of the Ministry of Cultural Heritage, does not want to hear about it. In summary, for the Government, there are no constitutional prerogatives that allow Sardinia to be the master of its own home.
White weapon
The appeal, put in black and white by the state advocacy, is an assault on the sword. It is, to be more explicit, the war of wars. The government's attack on the autonomy specialty is, in many ways, premeditated. That law passed by the Regional Council in two stages, between 19 and 21 January last, had, also in the title, its mission: reuse, redevelopment and recovery of the existing building heritage. All within the framework of the exclusive matter of "territorial governance". It is a pity, however, that some diligent state officials, perhaps from the Ministry of Cultural Heritage, do not accept that the Isola dei Nuraghi can govern the territory and its landscape protection by itself, as the Constitution and the Statute envisaged first, and then , the implementing rules. The clash takes place in the Supreme Court in a series of public hearings, all between October and November, the last last Tuesday. Meetings with no holds barred. The state's attack on the constitutional prerogatives of Sardinia is direct, in many ways even crude in tone and substance. To open fire, in full hearing, is the state lawyer Marco Corsini. He does not wear the toga, but takes off the scimitar. His words sound like a real declaration of war.
Kingdom of Sardinia
The statements are textual: "It is not possible that the Sardinian Region still thinks it is the Kingdom of Sardinia and is opposed to the State in the claim to regulate authoritatively, unilaterally, and even against the principles of the State, regarding the protection of the landscape". Unprecedented tones with statements that clash not a little with the same consolidated jurisprudence of the Court.
Replies the Professor
The Region's reaction is entrusted to Benedetto Ballero, the lawyer professor who for decades has taught constitutional law and relations with the Sardinian special statute in the universities of the island. He does not let the regrets of the Kingdom of Sardinia evoked by the state lawyer fall on deaf ears, but relies on a plea entirely on the thread of law and on the merits of the case, with a very heavy accusation: "The State is questioning whether Sardinia still has the right to exist as an Autonomous Region, whose Statute was approved at the same time as the Constitution, providing for four special regions the exclusive competence in the field of landscape protection. The feeling is that the State wants, instead, to affirm its own exclusivity of decision on Sardinia ». At stake is a clear and essential element: the government of the territory. In short, hosts in their own home. The contention is clear: being able to decide where to build and how to build, how to plan development and meet the needs of landscape protection. Here, in the Corte delle Corti, it is not debated whether a house can be built on agricultural land or whether a camper can be parked within the perimeter of the three hundred meters.
Sardinia Special?
The issue is higher and more decisive: is the Sardinia Region still a Region with a special statute or has it been commissioned by the State? The appeal of the State leaves no room for doubt: Sardinia cannot exercise the competence of the territorial government if it has not first negotiated with the State the protection of the landscape throughout the region. As if the Mayor of a Municipality entered a citizen's house and wanted to decide how to arrange the bedroom or the kitchen. In short, the State wants to have its hands in the dough with its bureaucratic tentacles and does not give up any tool to obtain the result.
The Sardinian appeal
The Region, in the appeal signed by Professor Benedetto Ballero together with the advocate of the Regional Advocacy to the Constitutional Court, the young lawyer Mattia Pani, goes on the attack: "The Government, with an evident logical forcing, affirms that landscape planning is superordinate to any other planning of the territory and that there is an obligation of landscape co-planning (State-Region) both for any modification of the current PPR, and for the completion of the landscape planning, with a PPR extended to the remaining territory of the island (and thus not And)".
The total constraint
"In this way - write the lawyers of the Region - the appeal of the State would pretend to impose an unquestionable constraint of unchangeability of the territory of the whole island, if not after co-planning by the Ministry-Region in matters of landscape on the whole regional territory. Rather than a statutory autonomy it almost seems like a government commissioner ». In practice, the Region, according to the Government's thesis, must negotiate everything with the State. Too bad that Palazzo Chigi completely ignores a decisive passage in the story: the rules for implementing the Sardinian Statute.
Constitutional rank
Not just any law, but a rule of constitutional rank, hierarchically superior to an ordinary law of the State. The attempt is to ignore the Decree of the President of the Republic n.480 of 22 May 1975. These are the "New rules for the implementation of the special statute of the Autonomous Region of Sardinia". The third Chapter regulates "Construction and Urban Planning". Here is the heart of the robbery that the state is attempting. To art. 6 of those implementing rules states that "the powers already exercised by the central and peripheral bodies of the Ministry of Public Education and attributed to the Ministry of Cultural and Environmental Heritage as well as by central and peripheral bodies of other ministries are transferred to the Autonomous Region of Sardinia" . Basically everything concerning the Landscape, with an addition: the transfer of powers to the Region "also concerns the drafting and approval of landscape territorial plans".
State forgetful
The lawyer Mattia Pani closes the plea for the Region: "We are fully aware that we are no longer the Kingdom of Sardinia, but the State has totally forgotten that we are a Region with a Special Statute of constitutional rank". The state-region war is on the point of reckoning. In the appeals of Palazzo Chigi the details become a real attack on the autonomy of Sardinia. Up to now "secret" documents that become the clear proof of the long manus of the State on Sardinia.
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