Popular Consultation and Illusory Direct Participation in Ecuador

Gabriela Espinoza

Universidad de las Americas

In the exercise of our democratic principles, on Saturday, April 18, 2024, Ecuadorian citizens embarked upon what we commonly term a “day of democratic deliberation”. The President of Ecuador convened a popular consultation, presenting 11 inquiries to the citizenry. The initial five pertained to the proposition of constitutional amendments, while the other six refer to legislative alterations. Implicit within this referendum were three pillars: the paramount consideration for public safety amid the nation's burgeoning instability; the imperative to address Ecuador's precarious economic straits through investment initiatives and a profound concern regarding the misuse of constitucional justice.

Yet, the consultation's efficacy in achieving these objectives is cast into doubt, with the core tenet of Ecuadorian constitutionalism imperiled. If such consultations falter in their promises and erode essential features of our constitutional ethos, rather than fostering democracy through direct civic engagement, they are instead politicized instruments wielded by the government to score political points. In particular, such endeavors serve as political capital for the incumbent President Daniel Noboa, positioning him favorably for forthcoming elections to be held on February 9th of 2025.

At the heart of these questions lies the tension between popular sovereignty and constitutional legitimacy. While referendums offer citizens a direct voice in the governance process, they also raise questions about the primacy of constitutional norms and the protection of individual rights. This tension is particularly evident in the context of the recent referendum. I will argue that this popular consultation eroded both the principle of popular sovereignty and constitutional legitimacy. Before we delve into this critique, let us first set the stage.

Background

In Ecuador, a popular consultation may assume one of two forms: plebiscitary, wherein the electors are consulted on any matter of interest that does not involve a constitutional reform, or it can be a referendum, which is when the people are consulted on whether they agree to amend the Constitution. On April 18th, 2024, the Ecuadorian people was called to vote on a referendum and a plebiscitary popular consultation.

The referendum asked whether the Ecuadorian people agreed to amend the Constitution: 1) to allow the Armed Forces to complementarily support the National Police to combat organized crime; 2) to allow the extradition of Ecuadorians; 3) for there to be specialized constitutional justice; 4) for international arbitration to be recognized as a method to resolve investment and commercial disputes; 5) to allow hourly and fixed-term work.

The plebiscitary popular consultation, on the other hand, posed six questions related to arms control, heightened penalties for organized crime, the typification of various crimes, and, in general, the reform of criminal law and other laws.

The first 2 referendum questions to amend the constitution (i.e., allowing the Armed Forces to be involved in public safety and extradition of Ecuadorians) and the 6 of the plebiscitary consultation, that refer to the security axis, received a “yes” vote. The referendum question regarding the restructuring of constitutional justice (i.e. the establishment of a specialized constitutional justice system) also received a favorable vote. Those regarding investment, the last two questions of the Constitution's reform, received a “no” vote. In this post, I will not refer to the questions for which people voted no, beyond highlighting the populace's reticence towards narratives extolling the virtues of arbitration and flexible labor laws as panaceas for economic malaise. Ecuador's history, marred by costly arbitration entanglements and the proliferation of precarious employment, belies the rosy promises of prosperity.

The questions related to public safety, on which the population voted yes, raise two basic questions: one regarding their practical effectiveness—which voids the principle of popular sovereignty- and another about their constitutionality—raising serious questions about constitutional legitimacy. In a similar vein, the question concerning specialized constitutional justice undermines a core tenet of Ecuadorian constitutionalism, which is characterized by a strong commitment to constitutionalize the legal system.

The (lack of) effects of the referendum and popular consultation

A pivotal aspect of any mechanism of direct democracy lies in its capacity to enact substantive changes within the legal framework based on public sentiment. This implies that if the populace votes affirmatively on a question, it should result in the realization of the intended effects for which the consultation was initiated. Consequently, the questions posed should wield an influence on the legal framework rather than serving the interests of political agendas. The formulation of the questions enables the general population—individuals without specialized legal or constitutional training—to infer that a favorable vote, in this case would trigger an automatic reform of crime policy, to create new criminal offenses, increase penalties, or heightened controls on firearms, among other measures, etc.

In this context, the Ecuadorian consultation failed to meet expectations, prompting inquiries into its practical efficacy. The effect here was solely to allow the President, upon approval of the consultation, to present to the National Assembly a draft reform of the Criminal Law and other statutes. Subsequently, the Assembly would engage in deliberations and adopt the reform within a stipulated timeframe of 60 days. Here are two fundamental problems.

First, according to the Constitution, which is hyper-presidential, the President is already a co-legislator and can send bills to the National Assembly. Second, the effects of the popular consultation, are not immediate. Any effect depends on whether the National Assembly decides to accept the President's proposal or not and to adopt policies that would make the consultation results operational. The Assembly could approve or not approve the bill submitted by the President.

Therefore, the reforms that theoretically seek to promote public safety will be left in the hands of the Assembly. Thus, the participation of the people, who voted favorably for these questions because they are concerned about the insecurity in the country, was illusory; their participation does not produce direct legal effects. In this way, the lack of direct legal effects of the popular consultation undermined the consultation’s purported purpose of fostering direct democratic participation.

The political (and complicated) nature of the public safety questions

Lastly, the questions pertaining to constitutional reform, particularly in the security domain, addressed the prospect of permitting the involvement of the Armed Forces in National Police operations, the extradition of Ecuadorian citizens, and the establishment of specialized constitutional justice. Concerning the first two issues, similar queries had been raised by former President Guillermo Laso in 2023. But in that popular consultation, held a year ago, the population voted no to those questions. Now they voted yes, further demonstrating the political nature of the consultations. That is to say, against the backdrop of mounting violence and public insecurity in the country, it should not come as a surprise that policy measures promising law and order will be popular. Like many policy areas, public safety is one that poses questions that will hardly be solved in binary terms. Most importantly, if required to be addressed in such terms the answer will naturally be affected by the context in which it is asked.

One of the most debated elements of the recent referendum is the suggestion to engage the military in combating organized crime. Advocates contend that such actions are imperative to tackle mounting insecurity challenges and reinstate public safety. Nonetheless, detractors warn of the risk of military overextension and the weakening of civilian oversight over law enforcement. Furthermore, the militarization of security forces gives rise to apprehensions regarding human rights violations (e.g., contemporary Mexico offers an instructive example the risks and dire consequences of involving the military in public safety). In the past, Ecuador has already been internationally condemned for the use of the Armed Forces domestic law enforcement. This reform could end up limiting constitutional rights, and therefore, eroding constitutional legitimacy.

Specialized constitutional justice

The question about the existence of specialized constitutional justice raises several legal questions. In Ecuador, all judges (regardless of whether they are judges of criminal, civil, administrative, or family law) are also constitutional judges. So, in addition to their subject-matter jurisdiction, they also handle constitutional cases. A family judge, for example, can handle a habeas corpus case. A criminal judge can handle a writ of protection.

When the current Constitution was approved in 2008, judges didn’t have much training in constitutional law, there was not much interest in the country in this area. The lack of direction and training led to a serious distortion of constitutional actions.

For example, habeas corpus actions were used to replace and nullify conviction sentences; habeas data actions were used to declare ownership of real estate; writ of protections to attack political acts, among many others. It is possible that this lack of control over constitutional actions promoted corruption and the release of alleged perpetrators of serious crimes against security. The Constitutional Court has been issuing opinions and judgments since 2019 to prevent and correct the distortion.

However, the question of a specialized constitutional justice was raised, and it gained popular support. From a constitutional point of view, I consider this to be wrong. Even considering all the problems described, the fact is that from 2008 to the present, judges from all over the country have had to, obligatorily, approach constitutional law. The creation of specialized justice represents a step back from these almost 16 years of constitutional permeability throughout the judiciary.

Ecuador's constitutional landscape, characterized by its aspirational ethos and robust guarantees, stands as a beacon of constitutionalism. It recognizes more than 90 rights and more than 7 constitutional guarantees to protect constitutional rights violated by an administrative, judicial, and even private authority. In this context, it recognizes the principle of indirect and direct horizontal effect of the Constitution.

The creation of specialized constitutional justice limits the indirect effect of the Constitution or what in German doctrine is called the “irradiation effect”. This metaphor arose from the famous Lüth case and expresses the idea that rights could also be understood as an objective order of values, which as such, “radiate” throughout the legal system. This implies that the interpretation of the law must be in accordance with fundamental rights understood from their objective dimension, as principles. The idea then that all judges in the country are also constitutional judges implied that the approach to constitutional law also has effects on the interpretation of the law in their field. Beyond the fact that every judge and lawyer must know the limits of the law imposed by the Constitution. The question, and its approval, damage this emerging constitutional culture of the country.

Conclusion

The use of referendums as a tool to gain popular support raises concerns about the integrity of the democratic process and the protection of individual rights and constitutional principles. Although, the popular consultation could serve as a mechanism for direct participation to improve and deepen democracy, it was used, in this case to advance political agendas. This ends up undermining the principle of popular sovereignty, diluting constitutional legitimacy, compromising a core tenet of Ecuadorian constitutionalism, and not addressing the problems of poverty and state abandonment that are the root of the consultation, and ultimately making participation simply illusory.

Dr. Gabriela Espinoza is a Professor of International Human Rights Systems at Universidad de las Americas (UDLA), Ecuador.

Suggested Citation: Gabriela Espinoza, ‘Popular Consultation and Illusory Direct Participation in Ecuador’ IACL-AIDC Blog (14 May 2024) Popular Consultation and Illusory Direct Participation in Ecuador — IACL-IADC Blog (blog-iacl-aidc.org)