End of “state of exception” may not mean end of restrictions

Published on September 01, 2020

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The culmination of the “state of exception” does not mean ending the restrictions that were instituted in Ecuador on March 16, 2020, to contain the spread of COVID-19.

The regulations on vehicular traffic, the operation of transport in all modalities, the use of public space, the operation of bars and other places that generate an gathering of people, the opening and use of beaches, the capacity of businesses and other activities that have been restricted may still be applied without resorting to a state of exception.

The Constitutional Court indicated in its resolution on the current state of exception, that the central government, local governments and other competent authorities have ordinary legal means to apply regulations in Ecuadorian territory to help mitigate infections with the virus.

In its opinion—in which it stated that it would not allow an extension of the last state of exception—it asked authorities to apply these other regulations to control the pandemic.

The Court’s last renewal of Decree 1126 was on August 14th and it will expire on September 12th, which means that it would no longer be legal for the federal government to implement the measures it instituted on March 16, 2020. These are the curfew and restrictions on free movement, transit and meetings.

The termination of this measure implies that “exceptional measures such as the curfew or restrictions on the right of free association will end when this period ofstate of exception” expires,said the Minister of Government, María Paula Romo.

The magistrates, in their resolution, wrote that the state of exception “does not constitute a permanent and suitable mechanism to face adverse situations of an indefinite nature,” in reference to the COVID-19 pandemic.The Court established that a new declaration of a state of exception “under the same facts and identical reasons is inadmissible.”

The Court ordered the Government, in coordination with national and sectional authorities, to adopt strict measures and public policies to control and mitigate the health crisis, while guaranteeing citizens’ rights under the ordinary legal system.

The magistrates even detailed various powers of the Executive and municipal sectional governments, which are contemplated in the Constitution, the Organic Code of Territorial Organization, Autonomy and Decentralization (COOTAD) and other regulations, and that could be used to act against the spread of the virus.

These are the restrictions the Court believes could be maintained in the 221 cantons to help control CVOID-19.

Vehicle restrictions

Article 264, Number 6, of the Constitution establishes that the municipalities have the right to regulate and control traffic within the cantonal territory, in accordance with Article 55, Section f., of the COOTAD. So, this regulation could be implemented by each autonomous municipal government or the competent national authority, as the case may be.

Regulation on interprovincial, intraprovincial and intracantonal transport

Article 264 of the Constitution Number 6 also establishes that municipal Decentralized Autonomous Governments (GADs)are empowered to regulate and control public transport in their cantonal territory. However, the COOTAD and the Traffic, Land Transport and Road Safety Law detail in detail the body in charge of this regulation depending on the territorial district in which the transport operates.

Article 130 of the COOTAD indicates that the general leadership of the national transit system corresponds to the Ministry of Transportation and Public Works. Consequently, the regulation on the different types of transport, depending on the territorial scope, such as determining the capacity of the transport units, is another function that can be exercised by the competent authorities depending on the level of government, according to the ordinary law and provided that the National Competition Council has transferred such functions to it.

Prohibition of sale of alcoholic beverages

Article 54, Section m.and Article 84, Section m. of the COOTAD states that GADs have the power to “Regulate and control the use of cantonal public space

and, in particular, the exercise of all kinds of activity that takes place in it..” and it has been suggested that this includes the use of controlled substances within public spaces.

In accordance with Article 6, Section 1, of the Organic Law for the Comprehensive Prevention of the Socio-Economic Phenomenon of Drugs and Regulation and Control of the Use of Listed Substances Subject to Control, alcoholic beverages are“substance(s) subject to control,” so the municipal GADs could regulate consumption in the indicated places.

Additionally, Article 8 of that regulation establishes that the national health authority has the right to adopt measures to prevent the use and consumption of substances subject to control.

So, the limitation to the sale and consumption of alcohol in certain places and under specific conditions justified by health prevention is a power that could be carried out by virtue of the indicated regulations and the rest of the applicable provisions that are already contained in the legal system.

Regulation on the use of beaches

The Constitution, in Article 264, Section 10, and in accordance with Article 430 of the COOTAD, recognizes the power of the municipal GADs to authorize and control the use of the country’s beaches through ordinances. Consequently, the control of the beaches is a measure that already exists in the ordinary law and could be exercised outside the state of exception.

Prohibition of opening bars, clubs, entertainment centers and any activity that does not guarantee social distancing

Regarding this prohibition, the COOTAD, in Article 54, Section p., establishes the authority of the municipal GADs in“regulation, authorization and control of the exercise of economic, business or professional activities, which are developed in premises located in the cantonal territorial district for the purpose of safeguarding the rights of the community.”

Therefore, theoretically the GADs are empowered to issue the corresponding regulation regarding economic activities that take place in premises in its constituency, without the need to declare a state of exception.

Prohibition of public performances

As pointed out earlier, the COOTAD establishes that the municipalities have the legal authority to “regulate, authorize and control the exercise of economic activities that take place in premises located in the cantonal district, in order to protect the rights of the community.

The possibility is also foreseen for municipal GADs to regulate capacities and verify compliance with safety regulations at public events, which they will regulate through ordinances.

The COOTADalso empowers the Mayor to grant permits for public performances in the urban parishes of his constituency and, in the case of public performances in rural parishes, his duty of coordination with the parochial GAD is recognized.

Therefore, it is a measure that can be adopted by several authorities within the framework of the applicable regulation within the ordinary regime.

Restriction of physical activities in closed places

The Law of Sports, Physical Education and Recreation, in Article 13, says that the governing and planning body of sport, physical education and recreation is the Ministry of Sport. Among its functions, in accordance with Article 14, Section h., of that Law, there is the regulation on the operation of any facility, stage or center where sports, physical education and recreation are carried out. In addition, Article 54, Section p., of the COOTAD establishes that municipal GADs can regulate, authorize and control the exercise of economic activities that take place in premises located in their constituency.

Regulation on capacity in commercial premises and hours of attention

In Article 54, Section p, of the COOTADit is stated that the municipal GADs can issue the regulation on the exercise of economic activities carried out in their territorial district, without prejudice to another authority may issue other regulation in this regard.

Suspension of face-to-face working hours in the public sector and teleworking

The suspension of working hours is a power provided by the ordinary legal system in favor of the Presidency of the Republic, in accordance with the Fifth General Provision of the Organic Law of Public Service. Regarding telework, it should be noted that the Ministry of Labor, through ministerial agreement No. MDT-2020-076, issued on March 12, 2020 the guidelines for the application of emergent telework during the declaration of health emergency, which gives note that this type of regulation could be issued under the ordinary legal system.

Regulation of face-to-face classes

Article 261, Number 6 of the Constitution establishes, as an exclusive competence of the central State, the development and implementation of education policies. Within the legal regulation, Article 21 of the Organic Law of Intercultural Education, establishes that it corresponds to the Executive Function to act as a national educational authority, which will be exercised by the minister of the branch.

Within its powers, Article 22 Section u., recognizes, among other aspects, that through agreements and resolutions issued by the Ministry of Education, the operation of the National Education system may be regulated and therefore, so can face-to-face classes and in general everything related to education.

Implementation of control and surveillance mechanisms aimed at supervising that biosecurity measures are respected

In accordance with the Organic Health Law, the Ministry of Health is qualified to determine health alert zones, identify population groups at serious risk, and as well to regulate and take biosecurity measures in coordination with other bodies.

Among them, for example, the municipal GADs stand out, which according to Article 65 of the Organic Health Law, must comply with the provisions issued by the national health authority to prevent the spread of communicable diseases and ensure their control.

The Ministry of Labor has also issued provisions that seek to implement biosecurity measures in the workplace. For example, is the ministerial agreement No. MDT-2020-093, of May 3, 2020, which shows that the ordinary legal system could assume the respective regulation in this area.

Armed Forces as a complement to the actions of the National Police

Article 2 of the Organic Law of National Defense establishes the mission of the Armed Forces as part of the Public Force. Article 10, Section i. of this law establishes as an authority of the Minister of Defense, the coordination with the rest of state organisms. In addition, the article added after Article 11 of the Public and State Security Law, gives the Armed Forces the possibility of supporting, in a complementary manner, operations to safeguard internal protection, public order and citizen security.

Therefore, the Armed Forces will only be able to carry out complementary tasks in the context of preventing a further spread of COVID-19.

The municipal governments have the function of coordinating with the National Police and the community, to formulate and execute policies for security and citizen coexistence. Along the same lines, the bodies of municipal or metropolitan control agents have the power to prevent, deter, monitor and control public space within the scope of their jurisdiction and competence. So theoretically, these municipal bodies could, by resolution of the respective cantonal authorities, also complement the task of the National Police, within the framework of its powers in the ordinary regime.

Extracted from Diario El Comercio

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