—Carlos Bernal Pulido, Macquarie Law School
Es gibt noch Richter in Berlin!, There are still judges in Berlin! was the well-known acclamation of the humble miller, when he learned that the Prussian King Frederick II, the Great, had ordered the demolition of his mill obstructing the views of the new royal palace in Potsdam. The judges ruled in favor of the miller, commanding the King to rebuild the windmill and to pay appropriate compensation.
This familiar story gives hope to those in Latin America who trust in judges as a last resort to protect human rights and democracy from the excesses of hyper-presidentialism. With great courage, the Colombian Constitutional Court honored this trust in 2010, when, in Judgment C-141/2010, it declared unconstitutional the law calling for a referendum that, as the first step towards amending the 1991 Colombian Constitution, aimed to enable then President Alvaro Uribe to run for a third consecutive term.
Now it is the turn of the Constitutional Court of Ecuador. In the coming days, that Court must decide on the admissibility and, if so, the appropriate procedure for a proposal of constitutional amendment submitted to the Parliament by the Party “Alianza Pais,” the political movement of President Rafael Correa. The proposal seeks to amend Article 144 of the 2008 Constitution and to make it constitutionally possible to reelect a President several times. The current text of the Constitution allows for only one presidential reelection. The amendment would enable incumbent President Correa, who is now in his second term, to be a candidate in the next presidential election.
An amendment of this kind would de-naturalize the system of powers of the Ecuadorian Constitution. Indefinite presidential reelection violates five essential elements of the Constitution: the constitutional right to equality, constitutional rights concerning political participation of minority parties, the principles of the rule of law and separation of powers, and the institutionalization of deliberative democracy. When the president is, at the same time, a candidate, he is in a position of superiority compared to the candidates of the opposition. The incumbent president attracts special attention from the media, can spend public funds in contracts, public works and welfare benefits for the electorate, and has the highest nomination power of state officials. Furthermore, the possibility of an indefinite presidential reelection implicitly absolves the chief executive of the duty to fulfill his program in the expected term. And it enables the President to nominate several senior officials for other branches of government tasked with monitoring or controlling the exercise of the executive power. Moreover, it hinders effective democratic change and plural public deliberation in equal conditions. Finally, an amendment aiming to allow the incumbent President to run in the next election introduces a law that is not universal, but rather is tailored to the political needs of the current President.
Articles 441 and 442 of the Ecuadorian Constitution set out two different procedures for changing the constitution: constitutional amendment and partial reform. Neither may be used to create indefinite presidential reelection.
Article 441 explicitly states that the constitutional amendment procedure cannot be used to alter the “basic structure” of the Constitution or “the constitutive elements of the State,” or to establish a “restriction on the rights and guarantees.” Therefore, the constitutional amendment procedure established in article 441, and which the National Assembly can carry out itself with a two-thirds vote of its members, may not be used here.
Further, the partial reform procedures outlined in Article 442 of the Constitution and Article 100 of the Organic Law on Jurisdictional Control and Constitutional Guarantees may not be used either. Article 442 explicitly states that the procedures for partial reform may not be used when the amendment implies a “restriction on constitutional rights and guarantees.” This is the case with the proposal allowing indefinite reelection of the President. Even if, for the sake of argument, it were conceded that some actor has the ability to introduce the possibility of indefinite presidential reelection into the Constitution, the only appropriate procedure would be to elect a constituent assembly as outlined in Article 444 of the Constitution.
As Karl Loewenstein wrote in his Theory of the Constitution, “the prohibition on presidential reelection after one or two periods, not infrequent in Latin American Constitution”, is what prevents presidents from “tak[ing] root in power and becom[ing] dictators.” As the humble Prussian miller, we, Latin Americans, are confident that the Constitutional Court will preserve democracy and the rule of law in Ecuador against this proposal to aggrandize presidential powers. There are still judges in Berlin, and in Quito!
Suggested citation: Carlos Bernal Pulido, There are still Judges in Berlin: On the Proposal to Amend the Ecuadorian Constitution to Allow Indefinite Presidential Reelection, Int’l J. Const. L. Blog, Sept. 10, 2014, available at: http://www.iconnectblog.com/2014/09/there-are-still-judges-in-berlin-on-the-proposal-to-amend-the-ecuadorian-constitution-to-allow-indefinite-presidential-reelection/