Some experts question the legality of the vaccine mandate and vaccine entry requirements

Dec 25, 2021

Although the government says it has legal standing to impose a vaccine mandate and to require vaccine cards for entry to businesses and public events, some lawyers are challenging the claim. In the case of the mandate, several experts wonder if it is even a mandate at all following the announcement that those who refuse vaccinations will not be punished.

Some constitutional experts say the government does not have the authority to require proof of vaccines for entry into shopping malls and other locations with Covid-19-imposed capacity limits.

Ecuador’s Ministry of Health and the national Emergency Operations Committee (COE) say their actions are supported by both the country’s Organic Health Law as well as the Constitution. They cite paragraph 4, article 6 of the law that says the government can require immunizations in extreme cases for the purpose of protecting public health.

Former University of Cuenca law professor Carlos Ruales is one of those questioning whether there the vaccine mandate is even still in effect. “When it was first announced, the Minister said there would penalties for those who refused the shots but later the same day she did a reversal and said there would be no penalties,” he says. “In my opinion, the mandate has effectively been rescinded and the issue now is the legality of requiring vaccine certificates to enter restaurants and stores and all the rest. Based on recent Constitutional Court decisions limiting the length and scope of state of emergency decrees, I am not sure this requirement will stand a court challenge.”

André Benavides, a constitutional lawyer in Quito, says the legal basis presented by the Health Ministry for both the mandate and the vaccine entry requirement has never been tested and is probably not legal. “Although the health law is 15 years old, there has never been a challenge that would send it to the court. In my opinion, it does not comply with the Constitution which was enacted two years after the law.”

He cites article 66, number 5 of the Constitution which establishes the right of individuals to make decisions appropriate to their health as well as other circumstances. “As I read the Constitution, the mandate by the Ministry have no basis of support.”

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Some legal experts also question the proof of vaccine requirement to enter businesses and events with Covid-19 capacity limits. “To provide full legal support, there must either be a presidential decree or a law enacted by the National Assembly,” says constitutional lawyer Emilio Suárez. “Otherwise, there is a direct conflict with the freedoms granted in the Constitution. If a case is filed with the Constitutional Court, I predict the order will be found illegal.”

He adds: “The Health Ministry and the COE lack the legal standing to enact and enforce these rules.”

Ruales believes the Health Ministry and COE are worried about the authority of their mandates. “I think this is why they changed the original mandate order and won’t punish those who do not take the vaccine. They should have similar concerns about the entry requirement of vaccine certificates.”

On the other hand, some lawyers say the government does, in fact, have the authority to impose mandates and other health-related rules. Guayaquil constitutional law professor  Rafael Oyarte insists there is no constitutional violation. “Yes, the constitution establishes individual freedoms but it also recognizes the right of the government to protect public health in emergency situations and I would suggest the Covid pandemic is such a situation.”

Oyarte says the issue will probably end up in the Constitutional Court. “I welcome that challenge. Sometimes the rights of individuals must come second to the health of the nation.”




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