With Ignacio Comonfort as substitute president, the Constituent Assembly met from February 18, 1856 to February 4, 1957, the Constitution being sanctioned and published on the 12th of the same month and year. In this Magna Carta, there was no express provision to the issues of the Right to Health Protection. However, it remained in charge of the States and Municipalities, based on what was stated in Article 117, which said: the powers that are not expressly granted to federal officials are understood to be reserved for the States.
On May 1, 1908, the Executive sent an initiative to the H. Chamber of Deputies with a draft decree to modify Article 11, which stated that every man had the right to enter and leave the Republic, travel through its territory and move from residence without the need for a security letter, passport or safe-conduct or other similar requirement; but with the limitations and requirements established by the immigration and “public health” laws. The exercise of this right does not prejudice the legitimate powers of the judicial or administrative authority, in cases of criminal or civil liability. It was also proposed to modify section XXI of Article 72 to empower Congress to enact laws on citizenship, naturalization, colonization and immigration and on “Public Health” of the coasts and borders.
In his explanatory memorandum, the executive referred to the increase in immigration in the Republic as well as international maritime and land traffic. That it would be necessary to consider how to act in the face of immigration, for example of inconvenient foreigners, already because they are vehicles of communicable diseases, because they are useless people for work, destitute people who since their arrival are a burden for the State and Society, people who use the national territory to cross into the United States of the North, people harmful to security and social order such as anarchists, women who indulge in prostitution and other criminal or vicious people.
They reasoned that carrying out massive expulsions from the country of this type of people, adhering to article 33 of the Constitution, does not seem to be the measure of a serene authority, so they discard it, considering it is of great necessity for the “national welfare” to restrict the scope of the guarantee. free entry, allowing immigration and health laws to limit it when required by the public interest.
With regard to health, he declared it necessary to exercise strict vigilance and strict police on our coasts and borders, to prevent epidemics in the country, and even to eradicate yellow fever and malaria, diseases that constitute secular epidemics in large areas of our country. coasts. The interests of public health, which are undoubtedly of the first order and which, as regards the coasts of the borders, do not affect only the border or coastal states, but the entire Union, justify the imposition of restrictions on freedom. traffic. Congratulations that healthy man go where he best pleases, without any authority being able to hinder him; But it is not rational to give equal rights to the sick with a communicable disease, leaving freedom to spread their disease among the healthy, which may be the origin of an epidemic that devastated a city, a region, an entire coastline.
The initiative was turned to Commissions and was received with great approval, even adding modifications, substituting the “Public Health of the Coasts and Borders” by the phrase “General Health of the Republic” as it is broader and allows more transcendental measures to be issued. avoiding endless discussions about the scope of action of the Federal Powers in matters of public health, and finally, and was the fundamental reason that inclined to such a substitution, which allows the Federal Executive to prevent, under the pretext of local health laws, a The State imposes serious and onerous restrictions on the commerce or transit of people, authorizing the issuance of laws that establish the powers of the Federation in cases of general health, and leaving to the States the power inherent to their internal sovereignty to legislate in all that concerns to local health, that is, to the one that does not directly affect national health, establishing that the Congress of the Union n have the powers to legislate on the matter. The reform was approved by a vast majority, and was published in November 1908.
In the Constituent Assembly of 1917, Dr. José María Rodríguez sends an initiative for constitutional reforms regarding health in the 36th session. In the opinion of the second commission, the Secretariats and Departments were listed to attend to the business of the competence of the executive branch of the Union, among them the Department of General Health. He gave a memorable debate that I call “Sanitary Dictatorship” and I quote: “The action on the unification of hygiene is imposed gentlemen, due to the need for the regeneration of our sick race. It is imposed, gentlemen, because the first of all problems in life is the problem of living, as long as possible and in the best possible way. This problem is also an economic and social problem of transcendental importance among us. The strength of our nation will be due to the number of inhabitants and their individual and collective wealth; but if the components of our race in the vast majority are degenerated by alcohol and are descendants of alcoholics or degenerated by diseases and, in addition, poor wretches, who cannot work or fight for life with advantage, due to their physical and naturally moral incapacity , you will have then diminished the national strength in inverse ratio of the physically disabled, the sick and the poor, and for this reason it is a national necessity that the Government from now on intervene, even despotically, on the hygiene of the individual, private and collectively. ”
Article 73 approved in its section XVI ratified the power of Congress to enact laws on citizenship, naturalization, colonization, emigration and immigration and general health of the Republic. 1st. The General Health Council will report directly to the President of the Republic, without the intervention of any Secretary of State, and its provisions will be mandatory in the country. 2nd. In case of epidemics of a serious or dangerous nature of invasion of exotic diseases in the Country, the Department of Health will be obliged to immediately dictate the indispensable preventive measures, subject to being later sanctioned by the President of the Republic. 3rd. The health authority will be executive and its provisions will be obeyed by the administrative authorities of the Country. 4th. The measures that the Council has put into effect in the campaign against alcoholism and the sale of substances that poison the individual and degenerate the race, will be later reviewed by the Congress of the Union in the cases that concern it.
In the one hundred and four years of validity of the Magna Carta there were few changes such as enacting laws on nationality, legal status of foreigners …; Secretary of Health instead of the Department of Health; and, the human species degenerates, as well as those adopted to prevent and combat environmental pollution.
The composition of the General Health Council (CSG) changed significantly with the influenza A (H1N1) pandemic IN 2009, incorporating several State Secretaries into its bosom, in order to comply with the high responsibility that it means for the case of a health emergency, such as a serious epidemic, where centralized decision-making is foreseen, which correspond to the health authorities in the order and hierarchy established in our Constitution and in article 4. of the General Health Law, which designates as health authorities the President of the Republic, the General Health Council, the Secretary of Health and the governments of the federative entities; This hierarchy shows the importance of the head of the federal Executive and the General Health Council that depends directly on him.
Thus, the CSG, as the highest health authority and considering that its general provisions are mandatory for the administrative authorities of the country, is responsible for approving and publishing in the Official Gazette of the Federation, the declaration of cases of serious diseases that are a cause of emergency or attempt against national security, in which the need for priority attention is justified; as currently established by the regulations that govern it.
It is clear that who has the primary responsibility to declare a health emergency in a timely manner due to an epidemic of a serious nature, such as the one we are currently facing in our country; It belongs to the President of the Republic, through the CSG, and once the determinations that correspond to this body have been made, the Ministry of Health will be in charge of determining all the executive actions that are necessary to attend to said emergency.
However, the Covid-19 Pandemic caused by SARS-CoV-2 made key errors visible due to the dual role of the head of the Ministry of Health, who in turn is president of the CSG, resulting in the minimization of the serious threat it posed to our country the infection from China, making a castling of dictatorship due to sanitary debauchery as recorded in the facts published in the Official Gazette of the Federation and in the terrible results of the handling of the pandemic in terms of lives lost prematurely and high impact economic for people, family and society.
That is why we present an initiative, in whose explanatory memorandum we list the decisions of the CSG succinctly, that strengthens the legal provisions in the General Health Law, to clearly and forcefully regulate the institution and the mechanisms to address the health emergencies, giving operational and financial autonomy to the CSG to establish that it will depend directly on the President of the State, being in charge of a councilor or president counselor, who will only have to carry out that responsibility and its appointment will correspond to the head of the federal Executive Power. This means that the Secretary of Health will be part of its board of directors, but will not preside over it. The integration that we propose of the CSG has the flexibility to provide a timely response to the threats we face now and in future epidemics of a serious nature. The Mexican Constituent Assembly has a great challenge in front of it, we only need to see in the study and ruling of the initiative if it is up to the task and if we will have the capacity to face it.
Postscript. In the federative entities, the Governor, the Secretaries of Health and the H. Municipalities are health authorities.
*The author is a surgeon, specialized in public health, with a doctorate in health sciences and public administration, and was recently reelected as a deputy of the PAN parliamentary group in the LXIV Legislature; He is also director of the Miguel Estrada Iturbide Foundation.