“Constitutional questions are first and foremost not questions of right but power”
After ten years of political stability and one of the broadest social reform agendas implemented in its history under President Rafael Correa government, Ecuadorian people voted in a historic referendum, which will have an enormous impact on the country´s institutional future. Thanks to President Correa, the quality of Ecuadorian democracy has improved in the areas of equity between 2007 and 2017; the rate of poverty dropped from 37.6% to 22.5%, and the Gini coefficient dropped from 0,54 to 0,47.
After the former Vice President of Correa elected in April 2017 to replace Lenin Moreno, the political spectrum turned to the right as President Moreno started to "descorreizar" the country. President Moreno launched his referendum initiative arguing that his reasons be mainly to fight against corruption in State institutions and to reactivate the economy.
The referendum issued by President Moreno consisted of seven questions, including a presidential reelection ban, an elimination of the Plusvalia Act, and a substantial reform of the Council for Citizen Participation and Social Control (“CPSC”).
In spite of the favorable "public opinion" regarding President Moreno´s proposed changes, reforming the CPSC which Montecristi´s Constitution consider as the "holy grail" of the new accountability and "check and balance" system is merely a means for President Moreno to gain full control of the State power, at which point he could become the leader of an authoritarian regime.
The reform of the Council for Citizen Participation and Social Control and its Transition
The CPSC gives Ecuadorian citizens an institutional channel to increase the participatory democracy and a different method to maintain accountability as well as check and balances mechanisms (1). In this sense, the Ecuadorian Constitution is similar to Bolivarian constitutionalism, in which Simon Bolivar suggested such a social contract was necessary to create and develop a moral power in the society capable of promoted and cultivated cultural transparency sense among citizens. (2)
Under the Constitution, the CPSC has to fulfill three crucial functions: promote the participatory democracy mechanism; promote the transparency and social control among ordinary people; enable a process in which the control authorities, electoral branch, and judicial council are selected on merits and citizens base on approval mechanisms.
The government´s reason for the proposed amendment to the Constitution is that the Council for CPSC needs to be reformed because the former Council has not fulfilled its mandate. Under proposed amendment the new council members will be elected directly by the people thereby increasing the legitimacy of this branch of government.
In the meantime, the Council will be replaced by a transition Council in which members are nominated entirely by the executive and designated by the Assembly and will have the complete authority to replace the control authorities over a period of six months.
When this “transition” mechanism was criticized, President Moreno simply replied in an interview “The Ecuadorian people know I am not a liar. So I ask them to have faith in me”.
The new Council members have now been appointed and the transition Council has taken office. In contrast to the former Council where there was greater diversity, the new Council consists of six males,one indigenous male and one female.
As mentioned above, this Transition Council will have the authority to evaluate current control authorities and to designate new ones. Hence, one of the main concerns of this proposal is, as there is a link between the members’ designation and the Government, the new control may not be able to fulfill their duties independently and ethically. Ironically, this was one of the main criticisms of the Council during President Correa´s administration– its attachment to the executive.
With that said, the second part of reform could improve democratic participation. One of the positive aspects of the government's proposal is that new Council members are elected every four years through popular vote. The success of the reform will depend on its implementation, and on how political actors, citizens, and social organizations will respond to it. This new election mechanism could potentially give more legitimization to the Council and give citizens the opportunity to citizens to engage and learn more about the new participatory framework. However, one of the challenges of the electoral mechanism is to ensure that not only the powerful and elite can have a seat on the Council.
It is important to stress that the CPSC was designed as a kind of "holy grail" in the 10-year-old Ecuadorian constitutional system, and served independently to ensure checks and balances were maintained. Today, it is difficult to envision a scenario where Ecuadorian political parties -starting with the Moreno government will not be tempted to seize greater power for their benefit.
The transition Council has several challenges. The first is around the extention of its power.
Indeed, the Council members – except for one its members- stated they have extraordinary powers, and they have started to evaluate the Constitutional Court and warned the highest tribunal that if the Court does not accept the CPSC ´s evaluation, members of the Constitutional Court will be replaced. However, the Constitution stated that the CPSC does not have the power to replace members of the Constitutional Court.
Despite this constitutional debate, the Council President -an old guard conservative politician- says that because of this “transition” time, he has “extraordinary” powers, even if the Constitutional norms do not support his thesis, the CPSC norms will prevail.
The bypass of horizontal accountability mechanisms and some procedural problems associated with this Referendum initiative
Despite the Presidential constitutional power to announce a Referendum, this particular initiative of President Moreno spurred a controversial debate regarding its constitutional legitimacy because the Constitutional Court – a crucial institution of horizontal accountability– was bypassed and not allowed to exercise control over the whole process (3).
Generally, Referendums are a means to engage citizens in a Direct Democracy and are used to achieve different goals, sometimes to vote on sensitive issues. However, bypassing institutional checks and balances through executive powers can be problematic. Referendums should be designed as a way to strengthen citizens´ voice and power (4).
One of the problems associated with Referendums that scholars have detected is that complex political topics may be reduced to yes and no questions, as in the recent Ecuadorian Referendum case. Also, the government and its new political allies were afraid of President Correa´s influence during the campaign, so they did not spend adequate time promoting a severe debate to engage citizens. Moreover, the way questions were framed in the Referendum was misleading, which shows a lack of fair play.
The OAS electoral mission prepared a report highlighting the lack of constitutional control over this Referendum initiative: “if this referendum initiative would have a constitutional control before many of the challenges would have been avoided”.
Chronicle of a Political Crisis Foretold?
At this moment, the governing coalition has not had any problems challenging the Constitution or the democratic norms. Indeed, in one short year, we have observed how a democratic elected vice-president was "guillotined" under a clear case of "Lawfare," the President of the Parliament was also replaced illegally; the Ombudsperson was fired after asking the CPSC to respect the due process of law. Lastly, the controller started legal persecution against President Correa for his sovereign policies surrounding the external debt.
However, the Council could face its most significant proof when it challenges the Constitutional Court.
As pointed out before, if the transition Council assumes the extraordinary power to evaluate and reorganize the Constitutional Court, this could lead to an intense power struggle (“Choque de trenes”) between the two institutions. At this moment, the Constitutional Court has to decide when to give in Council ´s power or to rescue the Constitutional order from an authoritarian path that Moreno and his coalition started to walk. We could observe two possible scenarios here:
Scenario one: the Constitutional Court decides to exercise its full control and take an ex-post constitutional control. Here the goal would be aimed at assessing whether the whole Referendum was or not Constitutional or just issue a decision limiting the power of the Transition Council. The first situation could lead to a political crisis because the actions of the Government and its allies may be declared unconstitutional. In this case, we could enter into a very uncertain political arena. If the second action were taken, the Council will see limitations to its power and severely affected President Moreno agenda.
Scenario two: The Council decides to use its "extraordinary" attributions to end the mandate of the Constitutional Court, and to start designating new members directly. This move has the full support of President Moreno who has indicated in tv message connection he will support every decision taken by the Council. However, from a constitutional point of view, this would represent one of the worst breakdowns of the Rule of Law in Ecuadorian history. In this case, from a legal point of view, only an emergency mechanism review by the Interamerican Human Rights Court could save Ecuadorian from the authoritarian regime.
We have observed in Ecuador a very catastrophic political scenario over the past year, which leads to the question: Are we facing the chronicle of a political crisis foretold? Everyone who knows the Ecuadorian political history and the way our elites and right-wing forces operate can agree with Gabriel García Marquez "There Had Never Been a (Political Crisis) More Foretold."
New Institutions for Participatory Democracy in Latin America: Voice and Consequence. Cameron, Maxwell.
Angostura Speech. Bolivar, Simon.
Mauricio Guim & Augusto Verduga, Ecuador’s “Unstoppable” Constitutional Referendum, Int’l J. Const. L. Blog, Dec. 16, 2017
The Rise of Referendums: Elite Strategy or Populist Weapon?, Topaloff, Journal Of Democracy.
Diego Bastidas Chasing is a Master of Public Policy and Global Affairs Student at the University of British Columbia. Originally from Equador, he obtained a law degree with a focus on Human Rights and Constitutional Law. Since graduation, he has been engaged with grassroots communities and workers’ struggles around social justice issues. Among his different projects, he has been part of UNHCR as a Protection Officer, the Labour Ministry of Ecuador as a policy maker to protect vulnerable workers, and a grassroots human rights committee as an activist and lawyer for marginalized groups.