Experts in constitutional law have doubts about the legal procedure followed by the Government to establish compulsory closures in the midst of the Pandemic and warn that a tightening of restrictive measures would be only in the hands of the national assembly deputies. This was detailed by lawyer Fabián Volio, who evaluated the deficiencies that the restrictions have had from the legal point of view.
According to the jurist, like the rest of administrative acts, decisions of this type must be motivated from the technical point of view, a flaw attributedto the Executive Power that has not detailed the studies and measurements that justify the pervasiveness of closing commercial establishments or the effectiveness of each of the other orders issued.
“It is not known what is the scientific-technical criterion to know why some close and others do not. With what criteria that has been published and studied can it be said that one establishment holds more riskthan another? We do not know, “he said.”This in an ordinary trial that would not hold,” he concluded.
The expert added that although the law has a procedure to limit individual rights, there is no regulation that allows it to completely prohibit commercial, industrial or agricultural operations.
“The establishments cannot be closed completely. They could be regulated by schedules in a reasonable, proportionate way, also the capacity of people and regulations of that type, but regulations are one thing and prohibitions as they have done here is another, ”he stated.
Is it easy to limit warranties?
If the course of action accumulated so far has generated doubts, it would become more complex to make them even more strict.Volio details that it would then be the suspension of constitutional rights, a special procedure that the Political Constitution reserves for exceptional conditions.
To assess its severity, it is enough to review the Inter-American Pact on Human Rights, where countries are obliged to report restrictions of this type to the Organization of American States (OAS), a process that many countries in the region have already followed in the midst of the pandemic, among them Argentina,Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Panama and Peru.
In its article 121, the Magna Carta establishes the rules for its application, setting parameters such as: It must be approved by a qualified majority -at least 38 votes-, Applies only to freedom of movement, privacy, secret of communications, association, meeting, information and expression. May be limited to specific points in the country Its maximum duration will be 30 days but it may be less.
Regarding this procedure
The lawyer stressed that both the laws and the legislative regulations guarantee an expeditious process, forcing the deputies to meet within 48 hours of receiving the petition, so in his opinion “it is not true that asking the Legislative Assembly the suspension would have delayed the defense against the virus”.
Hence, the regulations establish that it that the restrictive measures have to be discussed and that it has priority over the rest of the issues, so that once the legislative president considers the subject sufficiently discussed, a vote will be taken, all of which could be concluded in less than one week.
If the policies were to be implemented, it would then have to face the evaluation of the deputies, who have to renew it every 30 days and to whom the Government should render results of the measures accorded.