A few days ago I was summoned by the Constitutional Guarantees Commission of the National Assembly of Ecuador to give my opinion on the reform of the Organic Law of Jurisdictional Guarantees and Constitutional Control (LOGJCC) that is being discussed in said commission.
My main suggestion, in line and development of what the Constitutional Court (CC) ruled in Ruling No. 12-23-JC/24, was to urgently incorporate in the LOGJCC, specifically in the System of Administration of Constitutional Justice (SADJC), the judicial policy of Culture of Legality (CDL), whose leadership, in my opinion, should be assumed by the CC. A system that, considering its particularities and even the upcoming constitutional amendment, requires a differentiated and particularly technical treatment if what we are interested in is its effectiveness.
With regard to the proposed amendment that seeks the creation of “specialized judiciaries in constitutional matters”, I cannot fail to mention that, beyond being one of the most important issues that will be submitted to the consideration of the people in the next popular consultation, such denomination should have been better specified in order to avoid misleading and dangerous interpretations. And the fact is that as it is proposed, it could be wrongly assumed that, in the event of a yes vote, the rest of the country's judiciaries will cease to be “constitutional”, when what is really intended is the creation of specialized judiciaries to hear and resolve jurisdictional guarantees of constitutional rights. If what we seek is to reinforce the derisory constitutional culture that exists in Ecuador, this precision should be socialized in a timely manner among the judges that make up the ordinary justice system. Their actions, beyond the creation or not of specialized judiciaries in matters of jurisdictional guarantees (subject to the electoral result), should always have the Constitution as the main parameter of reference.
Now, returning to the central idea, the CDL policy, regardless of the results of the next referendum, which we hope will be positive with respect to this issue, should have the following as its main targets:
In the case of judges and legal professionals, this policy should contemplate not only the need to know their system of sources of law, to keep up to date with CC precedents on the subject of guarantees, or to acquire skills for the static and dynamic analysis of those precedents; but fundamentally the relevance of assuming an ethical and honest position with respect to the normative statements and rules that make up the system.
In the case of judges, compliance with this policy should be central to their appointment, tenure, promotion and central parameter for their evaluation within the framework of the SADJC, areas in which the Judiciary Council (CJ) and the CC should participate in a coordinated manner. On this point, in my appearance I also emphasized the need to strengthen the SADJC, and within the framework of this system, implement the constitutional career. The SADJC cannot, in my opinion, continue to be reduced to the CC.
Thus, in the event that the people vote in favor of question two of the constitutional amendment package, the least that should happen is a “relaxation”, let alone assuming that the underlying problems such as corruption, abuse, denaturalization and manipulation of the rules that regulate the jurisdictional guarantees, will be solved automatically from a mere modification to the constitutional rule or a change of persons; on the contrary, there must be a previously designed plan (we hope it exists) for the new constitutional design to operate optimally as soon as possible.
To achieve this task we need the joint work between the public and private sectors. In the first area, the National Assembly undoubtedly has full constitutional authority, regardless of the approval of the constitutional amendment on the matter, along with its reforming annexes to the LOGJCC, to strengthen the SADJC and implement this judicial policy of CDL in the LOGJCC. This beyond that the Constitutional Court, in coordination with the CJ (which involves the work between the Center for Studies and Dissemination of Constitutional Law of the CC and the School of Judicial Function), with the active participation of the Bar Associations, academia and other civil society actors, can develop, implement, evaluate and strengthen it.
As far as the academy is concerned, it will be substantial that the curricula of law degrees, at undergraduate and graduate level, finally assume the change that has occurred in the concept of “law” in the system of sources of Ecuadorian law, that they know the value of jurisprudence and particularly the constitutional precedent in Ecuador. This will be essential to avoid the denaturalization or abuse of guarantees generated by ignorance, ignorance and decontextualization of the precedents of the CC in the matter.
On the other hand, the CDL judicial policy should make visible the social impacts of corrupt actions, abuse of the law or manipulation of the law. Likewise, it should contemplate mechanisms for the recognition of judicial servants and legal professionals who act in accordance with the CDL. It should also provide for the denunciation, reproach and social condemnation of those who act contrary to it. In short, to legislate from the positive to attack negative behaviors.
Its purpose is to become the axis of the SADJC through the permanent promotion of a culture of transparency, ethics, both public-judicial and private, the latter related to habits of honest behavior before the rules of social conduct, not only legal. In other words, a policy focused on achieving voluntary compliance and due interpretation of the rules, including the Constitution, precedents - in the strict sense - of the CC, and others that make up the system of sources of law relating to the matter.
The aforementioned is intended to contribute to the strengthening of the SADJC in Ecuador. In the case of the proposed constitutional amendment presented by the President of the Republic, it is clear that it is essential to “start” with the reorientation of the jurisdictional guarantees in Ecuador. We cannot continue with a design that was typical of the system of constitutional guarantees that responded to the Political Constitution of Ecuador of 1998, in which there were few mechanisms for the protection of rights, with a merely precautionary nature and in which the competence was based on a sort of “splitting” of the judges of ordinary justice who knew about these guarantees. This design was maintained in the 2008 Constitution and was ratified by the CC for the transition period in Ruling No. 001-10-PJO-CC. Thus, at present, as a consequence of the preferential nature of the constitutional mechanisms for the protection of rights, judges must set aside the processes within their competence to concentrate on the resolution of the constitutional guarantees that are presented to them. This, evidently, compromises the effective judicial protection with respect to the cases that are part of the original competences of the judges. In addition to this, it has become evident over time that the illusory idea, based on the premise that all judges have the knowledge and expertise to hear and resolve cases involving constitutional guarantees, has failed.
If what we are interested in is to strengthen the SADJC and achieve the effectiveness of the next constitutional amendment on the matter, we must address the origin of the problem, which is related to the existence of a culture of non-compliance with regulations, which in many cases has led to the consummation of acts of corruption. It is for this reason that the normative-constitutional modification proposed by President Noboa, which can be qualified as a positive constitutional policy, must necessarily be complemented with an ordinary judicial policy of CDL, which is sustained and strengthened over time, with parameters of supervision and adaptation to changing circumstances and social problems, A policy that contemplates the permanent training and technification of the SADJC, but mainly that promotes the internalization of values, ethics, both judicial and professional, and voluntary compliance with the rules, not by sanction or surveillance, but by a civic sense. The effectiveness of the SADJC and the next constitutional amendment, if approved by the people, will depend on the latter.
Director of the UEES Graduate School of Law.
Doctor in Law, PhD, Master in Law, mention in Constitutional Law. Superior Diploma in Law with mention in Constitutional Law. His career includes technical-constitutional advisory positions in public and private entities. Among them the former Constitutional Tribunal and Constitutional Court of Ecuador. Research professor at several international universities. Distinguished Senior Research Fellow at the Constitutional Studies Program, University of Texas at Austin. Founding member and member of the Executive Committee of ICON-S, Ecuador chapter. Board Member of BeLatin, Initiative of the University of California, Berkeley, for Latin America. Co-director of the Legal Thought and Constitutional Theory Series. Editorial Derecho Global - Mexico.
Author of books and articles in national and international indexed journals. His research interests focus on constitutional law, constitutional procedural law, comparative law, legal theory and legal transplants. Arbitrator of the Arbitration and Mediation Center UEES. Currently director and full time professor of the UEES Graduate School of Law.
Universidad Espíritu Santo (UEES), began its academic activities in 1994 as a private, self-financed, non-profit institution. Its spirit of commitment and constant innovation are present in the quality of the service it offers to its community.
