Italian Administrative Judges and Questions of Jurisdiction
THE ITALIAN ADMINISTRATIVE TRIBUNAL (TAR) OF PALERMO HAS BLOCKED THE INSTALLATION OF A SATELLITE SYSTEM AT A US BASE IN SICILY: IS IT ENCROACHING ONTO AREAS THAT SHOULD BE LEFT TO POLICYMAKERS?by Fabrizio Fracchia
Translated by Alex Foti
In its ruling no. 461/2015, the TAR of Palermo blocked the installation of MUOS (Mobile User Objective System) in the US Navy facility in Niscemi, Sicily. It is another instance in which strategic political choices (in this case concerning national security and international relations) are implicitly made by Italy’s administrative tribunals, which are organized on a regional basis.
A few environmental associations as well as the Town of Niscemi have petitioned the court with the aim of blocking operations, which, although managed by the US Department of Defense, are subject to administrative law, because they have a local environmental impact.
The administrative court has also challenged the legitimacy of a decision made by the Region of Sicily which had overcome a previous court block and given green light to construction. The regional decision was ruled illegitimate, because it relied on expert opinion by the Higher Institute of Health, which had said that the magnetic field generated by MUOS was within legal thresholds. A scientific evaluation that the TAR of Palermo judged incorrect, because “based on simplified calculation procedures”.
When law, science, and politics overlap
The case at hand has all the ingredients of contemporary environmental problems: the delicate relationship between law and science, the conflict between judicial and government expertise, the consequences for nature (the construction site lies in a natural reserve) and public health; the contradictions of a purely judicial approach to the environment, raising doubts as to whether the courtroom is the right place to solve what are political problems, in decisions made by judicial actors subject to the law and normally devoid of political responsibilities.
However, politicians should not forget that TAR has not irremediably sunk the project, and that, by following an adequate procedure and providing a reasonable motivation, MUOS could end up being installed. Environmental law acts as a constraint on political decisions. But the real issue is that politics is hiding behind environmental law to avoid tough choices. Similarly, it cannot fall back on science to take strategic decisions concerning foreign affairs and national security. If must face public opinion and explain the reason why a certain course of action is justified.
As far as TAR is concerned, its magistrates consider issues from a purely administrative perspective. For instance, it doesn’t rule over the secular nature of the State, but whether it’s legitimate to hang crosses in public classrooms. Similarly, it doesn’t protect public health per se, but considers whether a technical assessment of environmental risk was correctly made.
Thus the Italian administrative judge defends citizens in ways that go beyond that of ordinary civil and penal justice. However, this does not amount to saying that a military strategy was politically defeated or, had it taken the opposite decision, that public health was judged irrelevant.
