On Legal Certainty

Government activity consists of the sum of decisions and actions carried out by persons vested with powers recognized by the public power. In other words, these are decisions with extraordinary impact made by ordinary people. What makes them extraordinary is that they are endowed with public power, which is defined as “the capacity of the state to impose its will with, without and even against the concurrent will of its recipients, in order to achieve its aims and objectives.”²

The strength of the decision that comes from the public power must offer certainty in two aspects: its compliance and its limit. Certainty in terms of compliance refers to the fact that, from the top of the normative framework, “the approved rules [...] will be applied without exception as many times as the assumptions that they foresee themselves occur.”³ Regarding its limit, certainty considers clarity in the terms in which an act of authority will be put into practice: “the act of authority occurs when it meets the requirements established by the legal order, and its validity is conditioned by the compliance with those requirements to which the state’s activity must be subject in order to affect some right of the governed.”⁴ The absence of certainty with respect to its compliance and its limits weakens the foundations of the rule of law and opens up spaces for the discretionary exercise of power.

Life in Mexico, from its legal architecture, places the human being in a priority position. This normative framework is due “to the need to establish a regime in which the minimum human prerogatives have the highest legal value.”⁵ Hence, the discretionary exercise of power must be avoided.

Of the two aspects cited on certainty, that of the limit of acts of authority is the one that is of interest in this document. This limit is expressed in the observance of the so-called principle of legality-“a profound change in legal thinking”⁶-, verifiable in a “rule of jurisdiction and rule of control, it says who must do it and how it must be done,”⁷ since “the law constitutes the limit of administration. By virtue of this principle, personal powers are no longer accepted; all power comes of the law, all authority that can be exercised is that of the law; only ‘in the name of the law’ can obedience be demanded.”⁸

The principle of legality, in addition to opposing arbitrary decisions, is opposed to the “irrational adherence to the law, that is [...] [avoiding that] it is understood that the laws that comprise it are simple mathematical equations whose result must be exact.”⁹ This should be clarified, because although the adoption of a public policy perspective has led to reflections on the future of the aforementioned principle (^{Estévez Araujo, 1990}; ^{Ferrajoli, 2006}), its consideration does not imply the impossibility of adapting the government’s work when it is faced with the target population of the government’s decision (^{Lipsky, 2018}).

In contemporary states, a characteristic practice contributing to the principle of legality (and, therefore, to legal certainty as to its limit) is the publication of acts of authority in a printed medium (it is called a newspaper, bulletin, or gazette) with maximum publicity and in which the possibilities of changing the terms in which the act of authority was structured are minimal.

In Mexico, the publication is made through the Diario Oficial de la Federación (DOF) (Official Journal of the Federation), which is

the organ of the Constitutional Government of the United Mexican States, of a permanent nature and public interest, whose function is to publish in the national territory, the laws, decrees, regulations, agreements, circulars, orders and other acts, issued by the Powers of the Federation and the Autonomous Constitutional Bodies, in their respective areas of competence, so that they are duly applied and observed.¹⁰

In Sonora the same is done in the Boletín Oficial (Official Bulletin).

On the State of Emergency, Freedom of Movement, and the Right to Health Protection

Under the umbrella of the information related to the spread of the coronavirus, five municipalities in the border state of Sonora announced a curfew (toque de queda), an expression that refers to the sound (blowing, ringing) of a bugle, trumpet or bell as a signal to the inhabitants of a locality to wait (stay) in their homes for security reasons.

The term toque de queda is not used in legal literature. It must be understood in the context, that is, as a measure in an extraordinary situation, out of the ordinary, similar to a state of emergency.

A state of emergency-or suspension of guarantees or state of siege, as it is also found in the legal literature-is, strictly speaking, a term used to indicate “an exceptional legal regime to which a territorial community is temporarily subjected, in consideration of a state of danger to public order.”¹¹ The difference between this and what was observed in the cases to be studied is, as will be argued, that the extraordinary situation observed was not subject to any legal regime; it depended on the will of those who made the decision and its implementers. Now, locating what has been observed through the concept of a state of exception (or any other equivalent denomination), while providing indications for its clarification, has its own limitations. De la ^{Cueva (2006)} points out that the term state of emergency “has played a dirty trick on the jurists, since a subject that might seem simple was complicated by the force of the facts [...] [when] [...] the reality and the needs of Mexico and the ideal of freedom [were confronted].”¹²

Even with this limitation, the importance of the matter must be considered: every constitutional state “has as its foundation respect for individual freedoms, for the rights of persons, which are anterior and superior to the state itself, since its philosophy recognizes that the state exists for persons and not individuals for the state.”¹³ This is how any government action that restricts or limits individual freedoms should be understood. Whether in rural areas or in small towns, diminishing freedoms is no small matter.

In the international order, states of emergency require compliance with minimum requirements derived from article 4 of the International Covenant on Civil and Political Rights and article 27 of the American Convention on Human Rights. These minimum requirements are: 1) to officially proclaim the state of emergency; 2) to attend to the principle of necessity and proportionality, that is, that the measure be justified when there is no other alternative; 3) to justify the decision and the specific measures to be adopted; 4) that the measures to be implemented are non-discriminatory; and 5) that the measures must be temporary, that is, they will subsist only as long as the situation that generated them continues. This international reference would help to standardize a criterion on the steps to be taken at the national level.¹⁴

In the face of the state of emergency for the cases described here, two normative paths are followed: freedom of movement and the right to health protection. Freedom of transit is found in article 11 of the Constitution. It consists of four freedoms: to enter the country, to leave it, to travel through its territory, and to change residence, without the need for a security letter, passport, safe-conduct, or other similar requirements. The exceptions are set out in the constitutional text itself: the exercise of the powers of the judicial authority, in cases of civil and criminal liability, and of the administrative authorities, in matters of emigration, immigration and general health.

A curfew, like those publicized in the municipalities under study, without constituting a state of emergency or siege in the strict sense, limits this freedom of movement. On the other hand, the right to health protection is established in the Mexican legal system, in article 4 of the Constitution. The General Health Law (LGS) is regulatory of this order. The original reason given to justify the curfew is to avoid putting the health of the population at risk.

The LGS states that health safety measures-which include, among others, isolation, quarantine, suspension of work or services-may be ordered or executed by the Secretary of Health and, where appropriate, by the governments of the states (Cámara de Diputados, 2019b, article 403). This same article includes municipalities, whose participation would be subordinated “to the agreements they enter into with the governments of the respective states.”¹⁵

In the previous paragraph, isolation, quarantine, suspension of work or services are highlighted as being the actions most similar to curfews. The measures, following this order, can be taken if the formalities are met: both isolation and quarantine must be ordered in writing by the competent authority and following a medical opinion (^{Cámara de Diputados, 2019b, articles 405 and 406}), the suspension of work or services must be ordered by the health authority (^{Cámara de Diputados, 2019b, article 412}), and must last for the time necessary to correct the irregularities that cause the work or service to endanger people’s health (^{Cámara de Diputados, 2019b, article 411}).

At the local level, the Ley de Salud del Estado de Sonora (Health Law of the State of Sonora) (LSES) replicates in general terms what the LGS states. Chapter I of title fifteen-which will be referred to by Moctezuma City Council-is equivalent to the health safety measures indicated in the LGS. In both, isolation and quarantine must be ordered in writing by the competent authority after a medical opinion (Congreso del Estado Libre y Soberano de Sonora [Congress of the Free and Sovereign State of Sonora] ^{[CLSS], 2019, articles 274 and 275}) and the suspension of work or services must be ordered by the health authority (^{CLSS, 2019, article 281}).

It should be noted that the LSES (^{CLSS, 2019, article 18}) restricts the jurisdiction of the municipalities to: 1) the health control of markets, cemeteries, and slaughter houses, among others; 2) establish and operate care and health institutions within their jurisdiction; 3) assume the administration of care and health facilities that, by virtue of an agreement, the state and federal governments transfer to them; 4) formulate and develop municipal health programs; 5) monitor and enforce, within their sphere of competence, the General Health Law and others that may be necessary.

Nacozari de García

The municipality of Nacozari de García occupies less than 1% of the land area of the state of Sonora. Due to its irregular shape, it borders the municipalities of Fronteras, Agua Prieta, and Bavispe to the north; Bavispe, Bacerac, and Villa Hidalgo to the east; Villa Hidalgo and Cumpas to the south; and Cumpas, Arizpe, Bacoachi, and Fronteras to the west. The population of this municipality was estimated at 14,319 people in 2018 (Sistema de Información Estadística del Estado de Sonora ^{[SIIES], 2020}).

As for the formation of the current municipal administration, in the 2018 electoral process it had the participation of 64.61% of the electoral roll, estimated in 10,017 people. The winner was María Juana Romero, who headed the formula of the Por Sonora al Frente coalition, made up of the PAN and the PRD. Of the five positions in the city council, three were held by the Por Sonora al Frente coalition, one by the PRI, and one by the independent candidate for mayor, Raymundo Arias Galindo (Instituto Estatal Electoral de Sonora ^{[IEES], 2018}).

This was the first city council to issue a curfew. The following weeks after the decision was taken, the telephones of the city council were not answered at any time and the official website of the municipality (www.nacozari.gob.mx)²⁰ did not show any information about the measure taken. Another means of communication, the Twitter account (@gobdenacozari), was last updated on November 26, 2018, two months after the account was created.

Decisions were made known through the Facebook page (@gobdenacozari). On March 18, 2020, through a video (^{Gobierno Municipal de Nacozari de García, 2020a}), the municipal president announced the suspension of permits to hold events and the implementation of citizen contact programs, alluding to the fact that “the preventive recommendations of the health authorities” were being followed.

A day later, on March 19, on the same platform, an image was published indicating that the public would be served by telephone and by email, from nine in the morning to one in the afternoon. That same day, in a video broadcast live (^{Gobierno Municipal de Nacozari de García, 2020b}) on the same platform, the municipal police commander announced the decision of the city council to “sound the sirens of the Cerro²¹ from ten o’clock at night to let people know that they should not walk on the street.” The video shows the municipal president correcting the time. And the commander changes what he said: “From eight o’clock at night.” The municipal president completes the message: “From eight to eight.” And the commander completes his message by repeating the schedule. He adds the information about who is exempt from the measure: the workers of Grupo Mexico (“as long as they justify it”) and people who have to go to a pharmacy. The message is posted on the Facebook platform but, in terms of legal certainty, the information published in this medium can be modified or deleted at any time.

An analysis of the rationality of the decision cannot be sustained in technical terms because it is political. This can be seen in the way it is communicated: in the video the mayor is seen standing up and being escorted by the representatives of the different corporations. At the table where the city council is sitting, the councilors are approving and accompanying the message being given. The commander, a public servant who is granted the use of his voice, was not clear about the time at which the measure would begin. The corporations are endorsing and replicating a decision; the mayor has the leadership. In this case, a health emergency is alluded to, but it is not the formal authorities indicated in the law that make the decision because, as already mentioned, the LGS indicates that the emergency measures “can only be ordered or executed by the Secretary of Health and, where appropriate, by the governments of the states.”²² Therefore, the participation of the municipalities is subordinated to the agreements that they enter into with the governments of the respective states according to article 403 of the same law. In principle, it is the Secretary of Health or the local health councils, by means of agreements, that must make the decisions.

Caborca

Caborca is a border municipality and the main city is located 137 miles from the crossing through Nogales to the United States. The estimated population in 2018 was 95,363 people (^{SIIES, 2020}). In the 2018 elections, with the participation of 48.65% of the electoral roll (62,598 people), the winning formula was led by Librado Macías González, promoted by the Juntos Haremos Historia coalition, formed by the Labor Party, MORENA and Social Encounter. Six councilors from the winning coalition, one councilor from each of the participating parties (PAN, PRI, Citizens’ Movement [Movimiento Ciudadano], PANAL) and one councilor representing the original population of the Papagos (^{IEES, 2018}) made up the city council.

On its Facebook page (@ayuntamientocaborca20182021), on March 20, 2020, the city council published the following message:

To the community of Caborca:

As a way of reinforcing in our community the “Stay at Home” social isolation program, promoted by the state government through the Secretary of Health in the face of the coronavirus pandemic contingency, the municipal president Librado Macías González has ordered a ban on the movement of vehicles and people at night during the weekends from today until April 20. Thus, the circulation of vehicles and people is restricted on Friday, Saturday, and Sunday from 10:00 p.m. to 6:00 a.m., with the warning that people who have no justification and are caught in the streets by the Municipal Police may be referred to the Public Security facilities, with possible application of sanctions. It should be clarified that the circulation of vehicles and people will be allowed as long as they prove that they are coming to fulfill their work responsibilities and/or some kind of real emergency.²³

The decision “was not specifically a city council agreement, it was not in a city council session. It was at the conclusion of an extraordinary meeting to discuss matters of this emergency, the mayor talked with the councilors and they agreed to give him full support” (^{Cabrera Andrade, 2020}). And the matter did not stop there. After the first weekend, it was decided to extend the measure for the rest of the week, “because as young people are without responsibilities, it is the same for them if it is the weekend or on weekdays” (^{Cabrera Andrade, 2020}). The decision was based on two arguments: first, the results they considered positive:

On the second night, Saturday night, there was a person who was arrested. A woman, by the way. She was on the street, with no cause [sic] to justify being on the street. And it turns out that she even had an arrest warrant when she was put into the system. She had an outstanding warrant, so it was enforced. (^{Cabrera Andrade, 2020})

The second argument is the acceptance that the authority perceives of the measure: “there have been surveys. It was a local medium. Ninety percent of the people are in favor of the restrictions that are being imposed here” (^{Cabrera Andrade, 2020}). He refers to the Albertico Noticias website, a local news and advertising site, in which citizens were asked about the measure, and the results they published were those that the authorities took into account.

In order to justify the decision to implement the measure, the official interviewed said in the first instance that he was working “in accordance with the recommendations of the state government, through the Secretary of Health [...], [in] the program called Stay Home” (^{Cabrera Andrade, 2020}). But later he acknowledged that

The Secretary [of Health] is not exactly proposing a curfew. But here, in the periodic meetings they have with personnel from the Secretary of Health, the Coordination of Health Risk, municipal agencies such as Civil Protection or Public Security saw that it was convenient to apply this type of measure because here young people meet, at night, especially to consume, to drink [alcohol]. And, well, these are meetings of more than ten people and that is contrary to the Stay at Home Program. (^{Cabrera Andrade, 2020})

The person in charge of updating publications on the city council’s Facebook page offered the following justification for implementing the measure: “Because the weekend is when more idle people are out on the streets” (^{Ayuntamiento de Caborca 2018-2021, 2020}).

There is no causal link between the measure implemented and the problem to be solved, and it does not matter. In this case, the measure is taken without formality, without documentation, without the validity of any city council session (where, according to the rules, there is no power to do so either). After a weekend, following the same mechanism, the measure is extended. From being a measure for weekends, it extends to the entire week.

Naco

Naco is a border municipality with the United States. The estimated population in 2018 was 7,123 people (^{SIIES, 2020}). In the 2018 elections, the formula headed by Andrea Celeste Ramos Erivez-in a common candidacy, decided between the PRI, PANAL, and PVEM-was the winner. From the nominal list, 66.6% of the 4,602 people that make it up went to the polls. The city council was composed of three positions under the same formula as the mayor, one for National Action and another for MORENA (^{IEES, 2018}).

The official website of the municipality (www.ayuntamientodenacosonora.gob.mx)²⁴ was not used to inform the decision on the measure. The page, in general terms, was not updated when it was visited in March 2020. The information included in the sections on the Presidency and Social Communication, which could be used to provide information on the decision, had last been modified on May 20, 2019.

On the Facebook platform page (@H.AyuntamientodeNaco) it was, as in the other cases, where the administration made its decision known. This is an image with the heading “Official Statement”; the document is signed by the municipal president and has no other date, only that which the platform automatically assigns to the publication. There it reads:

To the population in general and with strict adherence to the recommendations of the State Government, the Secretary of Health, Civil Protection and the H. City Council of Naco, Sonora; the following action has been determined [...] Curfew [...] starting today, March 20 to April 20, emphasizing that it will not be possible to move around the municipality to carry out non-essential activities from 9:00 p.m. to 7:00 a.m. [...]²⁵

The public servant who was interviewed emphasized what he considers to be the legal backing for the decision: “A city council meeting was held and the measure was taken based on the articles of the Health Law, articles 272, 273, 280, and 281. They are articles, if you read them, very simple” (^{Madrid Hernández, 2020}).

The main argument for implementing public policy was to follow the recommendations of the state government: “Recommendations of the state government, Health, Civil Protection began to be made to the people to stay in their homes [...] but people do not listen, to tell you the truth” (^{Madrid Hernández, 2020}). As in other cases, the consumption of alcohol by the population seems to be a strong reason: “We are preventing them from walking around, from drinking alcoholic beverages on the street, we are keeping the boys off the streets. This is what is being prevented” (^{Madrid Hernández, 2020}).

Later in the interview, the informant reveals two additional arguments: the behavior of minors and the fact that from the United States people cross the border in search of food and cleaning supplies, which would increase the risk:

We found out that there are a lot of young people on the street, because maybe the parents have to work. Based on that, this measure had to be taken [...]. We are here on the border with the United States and part of the very high outbreak is in Arizona, so we are a much higher alert spot than the other municipalities in the state of Sonora [...]. Yes, there was a lot of influx of Americans to buy medicine in pharmacies [...], even to carry groceries, because in the United States there is a shortage of potatoes, beans, toilet paper, cleaning supplies. (^{Madrid Hernández, 2020})

The informant’s description of Arizona does not match official U.S. data. With information from the Arizona Department of Health Services (www.azdhs.gov), the Centers for Disease Control and Prevention (^{CDC, 2020}) indicated that the number of cases of the disease was 401 and that most of them were located in Maricopa County (251). The neighboring county of Naco, Sonora, is Cochise, where one case was reported on March 25, 2020. Positive cases in Arizona at that time were not comparable to, for example, those reported in California (2,532 cases).

The absence of precise data did not prevent the informant from following the narrative: “Here, the city hall is two blocks from the U.S. border gate. So, the Americans are walking across and the shops are in these two blocks. There are some pharmacies, some grocery stores [...] It is something very noticeable [the increase of Americans in the city]. You immediately identify the American people” (^{Madrid Hernández, 2020}). And he takes up the reasons for concern about the border crossing from Arizona to Naco: “Frankly, the federal government has not come forward; it has not given any indications, any precautionary measures at the border. The border is freely accessible from there to here, but not from here to there. Mexicans already have restricted access” (^{Madrid Hernández, 2020}).

The public servant has doubts about the effectiveness of the measure. The main cause is the lack of collaboration from other municipalities in the terms already assumed by the municipal administration to which he belongs:

We had a point of discussion yesterday as a city council. For example, we implemented it [the curfew], but Agua Prieta and Cananea did not. So, the municipality of Naco is supported by many activities of these municipalities; that is, our people go there daily because they work in maquiladoras in Agua Prieta or in the mine in Cananea. So, yesterday we were saying, we are doing our part. But in other municipalities we don’t see any intention of implementing prevention actions. There are no signs of support or solidarity from these municipalities. (^{Madrid Hernández, 2020})

Moctezuma

Moctezuma is a municipality located in the center of the state of Sonora. In 2018 it had a population of 5,240 people (^{SIIES, 2020}). In the 2018 elections, the formula promoted by the Todos por Sonora coalition, made up of the PRI, the PVEM, and the PANAL, headed by Adriana Sepúlveda Rodríguez, was the winner. Of the five positions for the city council, three were occupied by the Todos por Sonora coalition, one by the PAN and one by MORENA. Participation in these elections was 72.97% of the electoral roll (^{IEES, 2018}).

On March 22, an official statement was published on Facebook, announcing a curfew for the period from March 22 to April 20, 2020, from 9 p.m. to 7 a.m. It will be announced “by the sound of the Parish bells [...] as the only warning. With this, it is expected that people who do not have essential activities will remain in their homes.”

The main public policy argument is no different from the other cases and is also unrelated to the problem to be solved. When explaining the measure, as in the other cases, precise population groups and behaviors that are intended to be inhibited are mentioned, without being able to identify the relationship with the spread of the coronavirus:

Those strategies were taken from nine at night to seven in the morning because that is when many of the young people, whether on Friday, Saturday or Sunday, start going out, going for a stroll and hanging around. And, well, that causes many of the teenagers to say, “It’s going to be okay.” And this makes young people more aware that they must take care of themselves. (^{Sepúlveda Rivera, 2020})

The difference between this case and the previous ones is that this document does indicate a legal basis: the Health Law for the State of Sonora, articles 272, 273, 280, and 281, and it adds the agreement 12/2020 taken in an Extraordinary Session of the city council.

The mayor defended the measure taken: “It was a unanimous decision by the city council, which is the highest authority in a municipality [...]. It is one of the strategies that, according to the mayor and the city council, which is the maximum authority, we took in order to have the people protected at home” (^{Sepúlveda Rivera, 2020}). The decision was made according to the Law, she commented. “They say that only the president of the republic can authorize it [the state of emergency]. But if we resort to the [Health] Law, it is like a support that they also give us to protect, in case of a disaster or insecurity, the citizens of a municipality” (^{Sepúlveda Rivera, 2020}).

She described how the decision was based on similar practices adopted in other municipalities to tackle the problem of insecurity:

In other municipalities, as was the case with insecurity in the past months, many of the municipalities took the curfew as a strategy to protect families from organized crime. It was to keep the whole municipality safe [...]. Other municipalities in the high mountains, Huachineras and elsewhere, already had curfews. It never affected anything [...]. And since all of this came about, the coronavirus, we took that strategy as well to protect, more than anything, our young people. (^{Sepúlveda Rivera, 2020})

If according to known experience the curfew did not affect anything, in this municipality nothing would have to happen either. In fact, the strength of the measure is based on the recognition of what in the municipality would be an intellectual elite:

The entire municipality has accepted it well. There we have the University of the Sierra. Teachers who have masters and doctorates are seeing it very well. They have congratulated us as a city council. As one of the strategies that the people have supported the most until today. They thought it was good. At night no one is seen driving around or parked in any of the tourist parts of the municipality. (^{Sepúlveda Rivera, 2020})

Santa Ana

Santa Ana is located in northern Sonora, but it does not have a border with the United States. In 2018, it had an estimated population of 18,071 people (^{SIIES, 2020}). As for the elections, the 2018 process had the participation of 58.98% of the 12,646 people on the electoral roll. In the municipality, the proposal of the Todos por Sonora coalition, made up of the PRI, the PVEM and the New Alliance Party, was the winner. Javier Francisco Moreno Dávila was the candidate for mayor. Of the five positions in the city council, three were occupied by members of the Todos por Sonora coalition, one by the PAN and one by MORENA (^{IEES, 2018}).

On Facebook (@ayuntamientodesantaana), a picture was published on March 21 indicating the curfew. There it is reported that it is issued following the recommendations of the mayor and the state government authorities. This measure would be effective from that day until further notice, from 9:00 p.m. to 7:00 a.m.

As to whether they had received any suggestion or indication from the Secretary of Health in Sonora or from any other authority, the response was forceful: “The truth is no” (^{Moreno, 2020}).

The main argument for carrying out public policy has similarities with the other cases:

Unfortunately, what happens is that we are very reckless and we believe that it will not happen to us. And taking into account that people were not considering the measures that we should take, well, we put a halfway curfew in place: we are not going to arrest anyone walking around; rather we go and tell them, we suggest them to go away. (^{Moreno, 2020})

At the city council, where the curfew was proposed, the reaction was favorable: “Everyone understood. They understood that it is an emergency measure. As I say, it is not a military thing. But people are still on the street, they are not understanding it” (^{Moreno, 2020}).