Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
Under Article 29 of the Constitution of the United Mexican States (for the text in English click here) "in case of invasion, serious breach of the peace or any other event which may place society in severe danger or conflict", certain fundamental rights can be "suspended" by the President of the Republic, following consultations with the Attorney General and the secretaries and with approval of the Congress of the Union. If Parliament is in recess, the President should obtain the approval of the Permanent Committee, and the Congress should be convened immediately.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The state of emergency is regulated by the Constitution but there is no special law regulating it. Measures taken in respect of the COVID-19 crisis were based on the ordinary legislation on health risks which confers certain powers on the executive.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The Health Law (for the text in Spanish click here provides, in Article 356, that when the circumstances necessitate, the Ministry of Health may determine areas or premises of isolation for sanitary purposes.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
Non, the state of emergency was not declared, and the emergency powers provided by Article 29 of the Constitution were not used.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Not applcalbe - no declaration was made, and the executive used ordinary powers conferred by the legislation on health risks.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The state of emergency was not declared, and was not submitted, consequently, to the judicial review. However, under Article 29 of the Constitution, "the decrees enacted by the President of the Republic, during the restriction or suspension of the constitutional rights and guarantees, shall be immediately reviewed by the Supreme Court of Justice of the Nation, which shall rule on their constitutionality and validity as soon as possible."
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
Article 29, which provides for the possibility to suspend certain fundamental rights, stipulates that the following rights should not affected by the measures enacted by the President's emergency decrees: the right to non discrimination, the right to legal personality, the right to life, the right of personal integrity, the right of protection to the family, the right to have a name, the right to have a nationality, the children’s rights, the political rights, the freedom of thought, the freedom of religion, the principles of legality and retroactivity, the prohibition on the death penalty, the prohibition on slavery and servitude, the prohibition of disappearance and torture, and the judicial guarantees that are necessary to protect these rights and principles.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
Fundamental rights were not derogated from. However, decress of the Ministry of Health ordered certain measures, namely temporary closure of schools and universities, ban on public gatherings of a certain size, interruption of all "non-essential" business activities until 30 April 2020 etc.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
The Government does not have any exceptional powers, except those which are conferred by virtue of the general law on health
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Article 29 stipulates that the measures ordered by the President should be limited in time and should be "general" in nature, i.e. do not concern specific persons.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
As from 20 March 2020 all legislative activities are suspended at the federal level (Chamber of Deputies and the Senate). Plenary sessions were suspened except for one occasion, when Parliament voted an amnesty act. Some of the parliamentary committees continued their activities by teleworking and video-conferences. Some regional parliaments also continued their activities by videoconferencing.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
From 18 March to 15 April the Supteme Court suspended its activities; as from 15 April, the Supreme Court started to meet through videoconference as per rules of procedure enacted by the plenary court on the basis of various general agreements. The Electoral Tribunal contined to function first by using a written procedure and later by videoconferences, but it is only dealing with urgent matters.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Not applicable - there is no special legislation on the state of emergency, so it was not amended
14. Was this additional legislation subject to judicial review?
Not applicable - the state of emergency was not declared and the government was using its powers under the ordinary legislation on health risks
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
Not applicanble - the state of emergency was not declared and the governemnt was using its powers under the ordinary legislation on health risks
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
All ordinary legal remedies are normally applicable: the request for a declaration on incompatibility with the constitution, the amparo procedure and the constitutinonal dispute. None of the measures applied during the COVID-19 crisis was declared unconstitutional
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
No parliamentary/presidential elections were scheduled during the COVID-19 crisis
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
The process of local elections in Coahuila and Hidalgo was suspended by the decision of the General Council of the National Electoral Institute of 2 April 2020. The elections were supposed to take place on 7 June 2020. This decisions was not submitted to any external review.
Mexico
The Permanent Committee is composed of 37 MPs from both chambers, which exists during biannual recesses of the federal parliament and which has a limited number of powers, including the power to call an extraordinary session of the federal parliament (Article 67 of the Constitution).
Such suspension should be "temporary and general, never a suspension can be applied on a single person" - i.e. ad hominem measures are prohibited.
At the end of the emergency period, "all legal and administrative measures taken during the restriction or suspension will be void immediately".
These provisions were used during the WWII, but were not applied in the recent history, including the COVID-19 crisis.
Article 73.XVI.1a of the Health Law creates a National Health Council at the federal level subordinated to the President and empowered to enact regulations.
Under Article 73.XVI.2a the federal Ministry of Health has the power to take all "preventative measures" in the case of grave pandemics.
Article 184 of the Health Law empowers the Ministry of Health to undertake all measures deemed necessary, in particular regulate gatherings and movement of people, regulate land, maritime, and air traffic, use means of communication, etc.
Instead, on March 23rd and 30th, the National Health Council declared COVID-19 a ‘grave disease requiring preferential attention’ and a ‘sanitary emergency by virtue of force majeure’, respectively. The federal executive usendpowers conferred by the Health Act, including the closure of all non-essential business on 31 March 2020, by a number of Ministry of Health Decrees (
However, if President issues emergency decrees, the should be submitted immediately for approval to Federal Parliament (see Q1)
Article 29 also provides that "restriction or suspension of constitutional rights and guarantees should be based on the provisions established by this Constitution, should be proportional to the danger, and should observe the principles of legality, rationality, notification, publicity and non discrimination."
During the COVID-19 crisis the executive used powers conferred on the relevant State authorities by the general legislation, in particular the Health Act. The regulations adopted by the State have sub-legal status.
Other federal tribunals, as per decision of the Federal Judicial Council, are dealing with the urgent matters only.