By David García Sarubbi
When the Mexican Constitution was issued in 1917, one of its main concerns was to regulate how democracy must deal with crisis, that is, with exceptional situations that demand the exercise of powers outside the Constitution’s regular limits to suppress potential dangers.
There is not an “off switch” available for political powers to put the Constitution to rest while solving urgent issues. Instead, there are complex rules to govern decisions in extraordinary circumstances.
The Constitution’s Article 29 has a Suspension Clause, which contains a detailed regulation for such cases. Moreover, in Article 73, Section XVI, there is another regulation relating to pandemics like the one we are experiencing currently.
Thus, from the founding era, the Mexican constitution has upheld the value of the rule of law, even in extraordinary circumstances.
The original wording of Article 29, in effect from 1917 through 2011, established processes of decision-making and powers thereof, but not rights or substantive standards to control their content. Nonetheless, this clause was made to guard against an assault on democracy.
It prescribed that in the event of an invasion, serious disturbance of the public peace or any other event that may place society in great danger or conflict, the President may suspend rights and guarantees throughout the country or in a determined place.
Only three safeguards were put in place: first, the President shall collect the consent of members of its cabinet, such as the Secretary of the State and the Attorney General, and consent from Congress, who so on shall provide for guidance; second, this suspension should be limited in time; and third, presidential decrees should be of general application, and never directed against a particular individual.
However, in this first stage, there was no limit pertaining to which rights might be suspended by the President, so in textual terms we might say that any right was available for suspension, including judicial review and the writ of habeas corpus. No court’s intervention was included in this design. This clause was only exercised once in Mexican history, when Mexico entered the Second World War; there is no precedent of judicial review over that action, except those recognizing the validity of some statutes approved by the President, which governed commercial transaction.
The Mexican Constitution has been amended many times, and many of these amendments have included new rights. The must important was introduced in 2011. This “Human Rights Amendment,” as it is known, incorporated human rights taken from international law into the Constitution, substituting the old “individual guarantees,” as fundamental rights were called before; it also transformed the Suspension Clause.
Now, Article 29 has added three more feature to the former processes, which were maintained: first, a list of human rights that could not be suspended, such as the right against discrimination, to personhood, to life, to personal integrity, to family, to a name, to a nationality, children’s rights, political rights, freedom of speech, religious liberty, legality, prohibition against ex post facto laws, capital punishment, slavery, the right against torture, and access to judicial review.
The second feature is an obligation on the part of the President to justify the measures and to respect the principle of proportionality, and such other principles as rationality, publicity, and nondiscrimination. The third feature is an automatic judicial review of all measures on the part of the Supreme Court, who shall pass review over their validity.
At present, this mechanism has not been used. But as evidenced by its new wording, the Suspension Clause now sets a high bar to pass. It regulates contents, as well as processes, of decision-making, and vests the Supreme Court with the role of ultimate guardian of the democratic model of government.
For the current pandemic, this power has not been used because the Constitution provides for the use of a different, less intrusive set of powers.
This mechanism is provided in article 73, section XVI, which establishes the existence of a General Health Council. This Council answers to the President, and has the powers to issue general rulings that are compulsory throughout the country. Typically, health law in Mexico is divided between the federal and state governments. In the case of serious epidemics or the risk of exotic, imported diseases, article 73 also vests on the Department of Health the obligation to immediately dictate required preventive measures, subject to subsequent approval by the President of the Republic.
In my view, this mechanism does not provide for the suspension of rights, and it shall be interpreted not to include this power, since the availability to restrict rights is only permitted under the conditions of Article 29. This Epidemics Clause presupposes the enforcement of human rights, and provides for extraordinary powers vested on a Council composed of experts, a useful feature to ensure political decision-making is guided by scientific expertise, which also serves as a check on political power.
Although some rights might be restricted as a side effect, its justification shall be technical and based of scientific data, and not only on political motives, as might be the case in the use of the suspension clause. In pandemics, the Constitution provides for the enforcing of human rights and important checks on political power, which are both welcome in such times.
David García Sarubbi is a law clerk to Mexican Supreme Court Justice Alfredo Gutiérrez Ortiz Mena.