Amending the Ecuadorian Constitution: Towards a Substantive Analysis of Citizens’ Participation

Emiliano Martin Vitaliani & Juan Diego Arregui

University of Buenos Aires & Universidad San Francisco de Quito

Ecuador voted on the fifth of February for its sectional elections but, with them, the President called a referendum to vote on eight questions. These questions had been submitted for judicial review by the Constitutional Court. Generally speaking, changes to the Ecuadorian Constitution can adopt two forms: amendments and constitutional reforms. The former is only available when the change doesn’t alter the fundamental structure nor the constitutive elements of the Ecuadorian State and doesn’t restrict rights nor guarantees. The amendment process is described in article 441 of the Constitution and offers two ways to adopt a constitutional amendment. The first one requires the President to define a set of questions and call for a referendum, while the second is mainly a parliamentary process. 

Since there are constitutional changes that cannot be approved through an amendment (i.e. changes that alter the fundamental structure, the constitutive elements of the Ecuadorian State and changes that restrict rights or guarantees), the Constitutional Court must check whether the amendment is constitutionally allowed. The relevant question here was if the questions proposed by President Lasso altered the fundamental structure of the state.

Although President Lasso presented eight questions whose constitutional character was evaluated by the Constitutional Court, we will focus on the evaluation of the one that refers to the election of the members of the Council for Citizens Participation and Social Control (CPCCS). The CPCCS was introduced in Ecuador in the 2008 constitution as part of a fifth branch of the state which allows for checking on public institutions. The procedure for electing CPCCS members was amended in 2019 through a referendum (as provided by article 441 of the Constitution) and its members are currently elected through popular vote. One of the proposed amendments sought to change the way the CPCCS members were elected, changing from direct election to a parliamentary election. Should the Court’s evaluation have concluded that the amendment proposal constituted a change to the fundamental structure of the state, the amendment would have to undergo the process of Article 442 (Partial Reform of the Constitution) which entails a more demanding process. The Constitutional Court, however, decided in the negative, relying on a restrictive conception of citizens’ participation.

Modification of the procedure for selecting the members of the CPCCS

Regarding the procedure for selecting the members of the CPCCS, the Court stated that what is essential about it is not the specific mechanism for their election, but its attempt to guarantee citizens’ participation in the selection process. Although the amendment gives Parliament the power to designate the members of the CPCCS, citizens will be able to scrutinize this process and thus the participatory nature of this institution would be guaranteed. It should be noted that, since the Constitution of 2008 was adopted, the procedure for electing the members of the CPCCS has been modified once through a constitutional amendment. Back then, the change in selection procedure was held constitutional by the Constitutional Court, so it is possible to claim that this new decision is in line with its jurisprudential line.

According to the current and past decisions by the Constitutional Court, changing how CPCCS members are elected does not necessarily entail an alteration to the basic structure of the state. Altering the mechanism to elect the CPCCS members should always withstand the constitutional objectives of such an organ. This is implied by the Court when it claims citizens’ participation is the essential element of the CPCCS. According to this view, if a constitutional change altered the participatory nature of the CPCCS, this would modify the basic structure of the state. However, the Court claims the participatory requisite was met in the proposed amendment because there would have been public scrutiny during the candidate selection process. Moreover, it states that the new selection procedure is participatory as it is driven by a representative institution, such as the Parliament.

Claiming that a selection procedure is participatory even though citizens do not have any authority over it relies on a weak conception of participation. The amendment places all decision-making power over who will be a member of the CPCCS on the Parliament, leaving citizens only with the possibility of formally complaining during the selection process. Even though public deliberation shouldn’t be underestimated as a form of participation, there’s more to participatory democracy than just speaking. Thus, an institution composed of members selected by representatives and whose accountability will also depend on representatives can hardly be called participatory.  

On the contrary view, it is possible to argue -as the Court does- that voting is a form of participation, so citizens would still be participating as they select their representatives in Parliament. However, moving the selection body from the citizenry to the Parliament clearly restricts participation in two ways. Firstly, electoral representation is a filter for the will of the electing body, so the more intermediary bodies, the less impact popular will has on final decisions. Secondly, when citizens choose a representative, they are deciding on a myriad of issues through just one vote. Consequently, the relative relevance of their will regarding checking institutions will clearly decrease when compared with economic or social issues and, therefore, the link between this will and the final result will weaken.

Judicial review of constitutional amendments is one of the hottest topics in constitutional law. In exercising this function, the Ecuadorian Constitutional Court ruled against the very nature of what the CPCCS was intended to be, a participatory mechanism for the people. This is clear from the limited conception of citizens’ participation developed by the Court, which led to a ruling that allows for the people to be -even more- removed from relevant political decision making. The Ecuadorian people voted ‘no’ for the eight questions and, specifically regarding the question on how CPCCS members are elected, the rejection won by 58% to 41%. 

Emiliano Martin Vitaliani is a lawyer from the University of Buenos Aires. He was a researcher at the Center for Studies on Freedom of Expression and Access to Information (CELE) between 2020 and 2022 and a professor of Constitutional Law at the University of Buenos Aires and University Torcuato di Tella. 

Juan Diego Arregui is a lawyer from Universidad San Francisco de Quito. He holds a master’s degree in Legal Argumentation from Alicante University and one in Legal Research from Simon Bolivar Andean University. He is currently a Partner at Calderón & Asociados, Quito, Ecuador. 

Suggested Citation: Emiliano Martin Vitaliani and Juan Diego Arregui, ‘Amending the Ecuadorian Constitution: Towards a Substantive Analysis of Citizens’ Participation’ IACL-AIDC Blog (16 February 2023) https://blog-iacl-aidc.org/2023-posts/2023/2/16/amending-the-ecuadorian-constitution-towards-a-substantive-analysis-of-citizens-participation.