Constitutional Identity in Transition? The Case on the Human Rights of the State

Diana Carrera & Johanna Fröhlich

Constitutional Court of Ecuador & Pontifical Catholic University of Chile

In 2012, the Ecuadorean National Undersecretary of Public Administration, with the support of the Office of the Presidency, filed a writ of amparo (“acción de protección”) against a local newspaper because it published an editorial containing allegedly false information on excessive expenditure on campaign advertising during the term of President Rafael Correa. The provincial court accepted the State’s arguments and ruled that the media company committed libel against the State. In 2019, the newly reformed Ecuadorean Constitutional Court (ECC) annulled the judgement of the provincial court and held that instead of being subject to rights, the State’s role is to guarantee and defend fundamental rights, such as freedom of expression. This case has become emblematic not just because it symbolizes the struggle for free speech, but also because it reflects the main features of the ECC’s approach to transition from an autocratic regime. From a legal reasoning point of view, the new Court seems to follow the same path as the previous ECC with regard to including an excessive number of sources from the Inter-American system and lays little emphasis on constructing its own doctrinal foundation using the Ecuadorean Constitution. An important difference though, is that unlike its predecessor, the new ECC does not just mention, but assigns real weight to these arguments. However, one is still left wondering about the Court’s fragile self-image as an autonomous source of legitimacy.  

Antecedents: paving the way to a softened post-Correa regime and a fully renewed Constitutional Court

Between 2007 and 2017, President Correa built an autocratic regime with strong plebiscitary elements (see Catherine M. Conaghan, at 47-48). This helped him to legitimize the adoption of a new Constitution (2008) and several extraordinary or even abusive measures to cement his power (for a concise summary on Correa’s ascent into power, see Johanna Fröhlich and Pier Paolo Pigozzi, at 77-82). In 2017, Correa’s former Vice President, Lenín Moreno was elected President under the same party colors as Correa, but promptly took a different direction and sought to reestablish the constitutional order. In order to strengthen democratic control over state organs and to improve the transparency and quality of public decision-making, President Moreno created a body called the transitory Council for Public Participation and Social Control (the Council). The Council’s task was to evaluate the appointment procedures and performance of several public organs - including the ECC – under the Correa regime. As a result of the evaluation procedure, all the previous justices of the ECC were removed from their offices with immediate effect. According to the resolution of the Council, the reasons for this decision were: the irregularities in the selection and appointment of the justices in 2012; the inefficiency in deciding cases on human rights violations – there were more than ten thousand cases piled up in the ECC’s docket by 2018; and the misuse of public funds designated to the ECC.

After a poor first decade and a sixty-day long constitutional vacancy, a completely new Constitutional Court took office on February 5, 2019 in challenging circumstances. While the dismissal of the former justices was supported by popular referendum, the Council’s decision attracted a political and legal backlash (see, Johanna Fröhlich and Pier Paolo Pigozzi, at 88-89) that resonated immediately as a criticism of one of its greatest beneficiaries, the newly conformed ECC. The new ECC, therefore, had to face legitimacy issues from the very beginning. The pressure emanating from the fragile political atmosphere, and the demand to mark a new beginning in terms of the performance – such as the expectations of full independence, zero corruption, and a high-quality standard for its decisions – all seem to have shaped the present judgement.

A landmark judgement: who are the rights holders of freedom of expression?

Aninternet news site, “La Hora”, had published an article with the title “2012: 71 million on propaganda” on October 10, 2012. The site published data about the amount of money the Government had spent on political campaigns using the calculations of a civil organization. The next day, the State agency claimed the numbers to be seven times higher than in reality and asked the news site to publish a rectification using its own calculations. The State agency did not accept the summary of the State’s figures published under the title “Reply” and sued the news site for libel. The provincial court decided in favor of the State, holding that the libel had been committed “in detriment of the Ecuadorean State” because the State’s figures should have been published under the title “rectification”. After the news site published another article with the title “Rectification”, the State agency asked for further clarifications that the data they used was false and violated the constitutional rights of the State. The provincial court recognized the State as a subject of fundamental rights, such as the right to honor and good standing, and declared that “offensive and false data can infringe the honor of the person, being both natural or legal, or the very State” (parr.22.).

In 2019, Judgement No. 282-13-JP/19 set new standards for ordinary courts on fundamental rights. The new ECC has been eager to use its competence called “selection” (selección de sentencias, an instrument to exercise constitutional control over the case law of constitutional actions of ordinary courts), in order to settle new binding jurisprudence on constitutional matters.

The Court’s judgement begins by explaining that, historically, rights were born to protect human beings from the intrusion of state power, thus, rights holders are principally persons. The ECC declared that by ignoring this essential character of fundamental rights, the very definition of rights and the whole edifice of human rights protection could be (and had been) disregarded (parr.29.). The Court stated that human rights are embedded in human dignity and reminded the State that, rather than being entitled to rights, its primary obligation is to respect fundamental rights. The ECC made a distinction between fundamental rights that can pertain to legal persons (such as due process) and those that cannot (such as the right to honor). By doing so, the ECC intended to rewrite the previous jurisprudence on fundamental rights, whereby they were used in a self-serving manner by the State and its organs under the Correa regime. The ECC concluded that the writ of amparo can only be presented by public institutions if their actions represent the interests of the rights holders in light of the Constitution of 2008, i.e. persons, peoples, communities, nationalities, collective groups, and nature (parr.52). Therefore, the ECC held that the State had no right to honor and good standing against the news site.

The second half of the judgment focuses on the importance of freedom of expression to the democratic control of government. This section has a more declarative, pedagogical style as it is mainly directed to judges of ordinary courts. As the ECC addressed issues on freedom of expression, it mainly incorporated sources of the Inter-American system and the Colombian Constitutional Court.

This judgement offered the ECC an opportunity to construct an important pillar of national constitutional identity. That opportunity was not taken by the Court, as is evidenced by the extensive references to the Inter-American system and to foreign case law. From one perspective, referring to sources of regional comparative law and international human rights law can be understood as a way to go beyond local, parochial practices and develop national jurisprudence in harmony with international standards. At the same time, it could well risk missing foundational “constitutional moments” to articulate and vindicate the authentic foundations of Ecuadorian constitutionalism in its own right. Borrowing legitimacy from international courts is frequently used to strengthen national constitutional courts as they transition from autocratic regimes. Unfortunately, the previous ECC used international sources as empty rhetoric too many times, which is why the same practice could paradoxically weaken the present Court’s authority.

The new ECC’s unanimous judgment created binding jurisprudence contradicting not only the decisions under revision, but also the nationwide practice of granting fundamental rights to the State. One of the judgement’s major contributions is its attempt to balance out the predominance of the State in the constitutional justice system. It is still early to fully grasp the long-term significance of this judgement, but it already marks a new attitude of the ECC, namely its dedication to define itself as an impediment to excessive executive power. At the same time, because of the outward character of justification, one might hope that in the future the Court will be more willing to identify and construct a distinctive Ecuadorean constitutional identity in order to contribute to the legitimacy of the constitutional system on the long run. At the moment, the ECC still seems to be lacking its own voice and original authority and looks very much like a court in transition.

Diana Carrera is a law clerk at the Constitutional Court of Ecuador. Johanna Fröhlich is Research Assistant Professor, Pontifical Catholic University of Chile.

Suggested citation: Diana Carrera and Johanna Fröhlich, ‘Constitutional Identity in Transition? The Case on the Human Rights of the State’ IACL-IADC Blog (9 July 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-central-and-south-america/2020/7/9/constitutional-identity-in-transition-the-case-on-the-human-rights-of-the-state