COVID-19 and the inconstitutional restriction of the transit of people in Yucatán (OPINION)

MÉRIDA, March 17, 2020.- Residents of the port of Sisal, that belongs to the municipality of Hunucmá, Yucatán, the municipal authorities had said that, due to the pandemic, eventually, local authorities will not allow ‘visitors’ or “non residents” to enter Sisal.

They claim the effects of Covid-19, would make logical such a measure of restriction or temporary suspension of the rights of ‘visitors’ or “non-residents”, but it is questionable whether such measure, which could well be replicated, if not is that it is already happening in other parts of the country, is or not proportional and equitable to the magnitude of the pandemic or, on the contrary, it is antipodal to the rights and guarantees of people, especially those directly affected.

From the systematic and functional interpretation of the Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos: CPEUM), it turns out that the only authority with the competence to determine, in principle, such restriction or temporary suspension of the entry of ‘visitors’ or “non-residents” would be the federal Secretary of Health (due to the seriousness of the epidemic), according to article 73 fraction XVI base 2a of the CPEUM. Indispensable preventive measure in his opinion, but subject to be sanctioned by the President of the Republic.

Now, such restriction or temporary suspension of free transit, a human right guaranteed in the first paragraph of constitutional ordinal 11, as it has been handled by the media with respect to Sisal, would represent a “suspicious category” with respect to treating a group of people differently (‘visitors’ or “non residents”) for the sole fact of being “outsiders”, and not because of the condition of their health that, in the terms of the preventive measures previously issued by the Ministry of Health.

Now, it is true that public order and social interest have previously caused the issuance and execution of provisions that, where appropriate, would have prevented or restricted the rights of people with a state of health that, objectively and rationally, would have been considered potentially dangerous to others (the best-known reference case, that of the previous pandemic: Influenza).

But for these sanitary measures (taken by the corresponding authorities and not by others in their subrogation or aid), in a distinctive and non-discriminatory treatment, they must focus on the person’s state of health, or on general measures and abstracts channeled to other points (such as the cancellation of massive events, for example). Hence, preventing certain people from free transit within the country, simply because they are not located in a specific place, results in discriminatory and unjustified treatment, even in the current situation of the Covid-19 pandemic.

The foregoing in no way could be excepted as a restriction or temporary suspension of the exercise of the rights or guarantees referred to in the first paragraph of article 29 of the Mexican Constitution, since in addition to the fact that this would be unmotivated and disproportionate (which the third paragraph prohibits, idem) and, undoubtedly, discriminatory; since such restriction or suspension is directed exclusively towards the origin of person, even when they are Mexicans, in full use of their rights (second paragraph, idem).

It is not necessary to point out that neither the President of the Republic nor the Congress of the Union could endorse the aforementioned measure. Of course, unless the Supreme Court of Justice of the Nation considers it constitutional and valid (fifth paragraph, idem).

by Francisco José Parra Lara
Student of the Inter-institutional Doctorate in Human Rights
(Imparted by the CNDH and other academic institutions)
Mérida, Yucatán, (March/16/2020)

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