–Mauricio Guim, S.J.D. candidate and Presidential Fellow in Data Science, University of Virginia School of Law & Augusto Verduga, LL.M. candidate, Universidad Andina Simón Bolívar, Quito, Ecuador
The Republic of Ecuador is going through one of the most interesting transitions in the world. This past summer, in a contested election that almost tore the country apart, Lenin Moreno was elected President by less than three percent of the popular vote. The first presidential candidate in a wheelchair, Moreno ran as the chosen successor of Rafael Correa to take over Correa’s “Citizen’s Revolution.” Now, after six months in power, Moreno has broken with his predecessor and is proposing a referendum to repeal the constitutional provisions that allow Correa to run a third time and return as President.
The Constitution of Ecuador did not originally allow the President to serve more than two terms. However, in 2014 Congress amended the Constitution to remove term limits and authorize the “indefinite reelection” of all public officials including the President. The amendments were controversial. The main dispute focused on whether Congress could approve the changes by acting alone, or whether a more demanding procedure of amendment needed to be followed.
The Constitution of Ecuador establishes a tiered system of constitutional change, with a baseline procedure for amendments that can be carried out by Congress alone, but which also requires that certain changes be carried out through more demanding procedures. The answer thus depended on whether the amendments restricted “constitutional rights and guarantees,” altered the “fundamental structure” of the Constitution, or changed “character and constituent” elements of the State. If the amendments fell in these categories, the changes could only be approved by a more demanding procedure of constitutional change, requiring a referendum or constituent assembly. Supporters of the amendment believed that the changes could be approved by Congress. Among other arguments, critics stated that the amendments altered the “fundamental structure” of the Constitution and had to be passed in a referendum or constituent assembly.
Under the Ecuadorian constitution, the Constitutional Court is authorized to determine which route a constitutional change must follow. The Constitutional Court allowed Congress to pass the amendments without a referendum, asserting that they expanded the people’s constitutional right to elect and be elected and did not alter the “fundamental structure” of the Constitution. In the Court’s words: “The framers did not consider political alternation part of the fundamental structure of the Constitution or one of the constituent elements of the State. The existence or not of political alternation depends on the people’s choice since they are the ones who evaluate proposals and decide whether to vote for something new…. The proposed amendments guarantee this right without discriminating against candidates who have previously been reelected…. For these reasons, the proposed amendments expand people’s political rights to elect and be elected.”
This month the Constitutional Court will confront the flip side of the same problem. Does the reestablishment of term limits restrict “constitutional rights and guarantees,” alter the “fundamental structure” of the Constitution, or change the “character or constituent” elements of the State? Few people would think that it does. However, the Constitutional Court ruled that the elimination of term limits is an expansion of people’s rights, and if those rights are now part of the Constitution then, technically speaking, removing them could be seen as a restriction on constitutional rights. According to the text of the constitution, a restriction on “fundamental rights and guarantees” is placed on the highest tier and can only be carried out by Constituent Assembly; not by Congress acting alone or even with the addition of a referendum. In such a case President Moreno would need to either drop the proposal or call a constituent assembly.
The Court could authorize the referendum by overruling its past precedent, distinguishing the past case from the present one, or dismissing the previous pronouncement as dicta. The Court could argue, for example, that Congress can amend the Constitution to expand the people’s rights, but the Court cannot prevent the people from afterwards repealing those amendments, particularly if the new “right” to reelect the President was not contemplated in the original Constitutional and does not affect political minorities. The expression “restricts constitutional rights and guarantee” provides a lot of space for interpretative maneuver. But it is not clear that this is what the Constitutional Court wants. On the one hand, most judges of the Court have close ties with the Correa regime, and a majority in Congress still support the former President. On the other hand, recent polls report over sixty-five percent of citizens support the repeal of the “indefinite reelection” and the reincorporation of terms limits into the Constitution.
The referendum has six other questions related to environmental protection, land speculation, punishment for corruption and sexual crimes, and the restructuration of the Council for Citizen’s Participation and Social Control. But we do not know to what extent President Moreno will continue the referendum if the question prohibiting Rafael Correa from running for President is not approved by the Court. If the Court approves the question, Correa and his supporters have no other option but to win the referendum. If the Court does not approve it, the political scenario becomes more complicated as President Moreno’s response will depend on a) how much he cares about this particular issue vis-à-vis the rest of the questions in his referendum and b) how risk averse he is about the wholesale revision of the Constitution through a constituent assembly.
The prospect of President Moreno defying an adverse decision cannot be ruled out. Previous Presidents, including Rafael Correa in 2007, have defied the Court in similar circumstances. However, Moreno would still need the Electoral Tribunal’s support to continue with the referendum without the required Constitutional Court authorization, and considering that this would be a clear legal violation, it seems unlikely that both the President and the Electoral Tribunal would proceed in this manner. 
Well-established literatures on judicial behavior suggest that judges decide their cases in line with the politicians who appointed them, but they also recognize that judges are subject to clear political and institutional constraints. Seven out of nine judges of the Court have close ties with the Correa regime. Five of them subscribed the decision that eliminated term limits and authorized the indefinite reelection. Three judges were appointed by President Correa. The Court’s Vice-President served as his personal advisor. The judge in charge of the draft-judgment is his close friend and was recently married in a ceremony presided by President Correa himself. Still, a significant number of citizens support the referendum and the reincorporation of terms limits into the Constitution. Facing pressure from both sides, the Court could make a “Solomonic” judgment. For example, considering that the main problem of term limits is the issue of incumbent advantage, the Court could use the fact that Correa is no longer in power and is opposing the current President to authorize the referendum but rule that its results do not apply retroactively. This would allow Rafael Correa to run in the next election but not afterwards. Would President Moreno accept this? We do not know. But if he does not, his only options are to either defy the Court or call a constituent assembly. Both cases could cause a constitutional crisis in Ecuador.
Suggested citation: Mauricio Guim & Augusto Verduga, Is Ecuador Heading Towards a Constitutional Crisis, Int’l J. Const. L. Blog, Nov. 1, 2017, at: http://www.iconnectblog.com/2017/11/is-ecuador-heading-towards-a-constitutional-crisis/
 Stephan Keuffner, Ecuador’s Lenin Moreno Declared Winner of Presidential Election, Bloomberg Politics, Apr. 4, 2017, https://www.bloomberg.com/news/articles/2017-04-04/ecuador-s-lenin-moreno-declared-winner-of-presidential-election.
 Ernesto Londoño, Ecuador Elects World’s Only Head of State in a Wheelchair, N.Y. Times, Apr. 7, 2017, https://www.nytimes.com/2017/04/07/opinion/ecuador-elects-worlds-only-head-of-state-in-a-wheelchair.html.
 Nicholas Casey, Ecuador’s Vice President is Jailed in Bribery Investigation, N.Y. Times, Oct. 3, 2017, https://www.nytimes.com/2017/10/03/world/americas/jorge-glas-ecuador.html.
 Article 114 of the Constitution said: “The authorities elected by the people can be reelected only once, whether consecutively or not, to the same office. The authorities elected by the people who submit their candidates for a different office shall resign from the one they are currently holding.” In addition, Article 144 said: “The President of the Republic shall remain four years in office and can be reelected only once.”
 In their current versions the same provisions say: “Article 114. – The authorities elected by the people can be eligible for reelection. The authorities elected by the people who submit their candidature for a different office shall resign from the one they are currently holding; Article 144. – The President of the Republic shall remain four years in office and can be eligible for reelection.”
 Article 441 of the Constitution of Ecuador prescribes:
The amendment of one or various articles of the Constitution that does not alter the fundamental structure or the nature and constituent elements of the State, does not set constraints on rights and guarantees, and does not change the procedure for amending the Constitution shall be carried out as follows: 1) By means of a referendum requested by the President of the Republic or by the citizenry with the backing of at least eight percent (8%) of the persons registered in the voter registration list; 2) At the initiative of a number accounting for no less than one third of the members of the National Assembly. The bill of amendment shall be processed in two discussions; the second discussion shall be held, without delay, no later than thirty days after a year has elapsed since the start of the first debate. The amendment shall only be adopted if it is supported by two thirds of the members of the National Assembly.
 Corte Constitucional del Ecuador, Dictamen No. 001-14-DRC-CC, Oct. 31, 2014, available at https://www.corteconstitucional.gob.ec/sentencias/relatoria/relatoria/fichas/001-14-DRC-CC.pdf.
 Alianza País negó en Asamblea Nacional apoyo a consulta de Lenín Moreno, El Universo, Sept. 9, 2017, http://www.eluniverso.com/noticias/2017/09/09/nota/6371614/ap-nego-apoyo-consulta-lenin.
 Cedatos: Casi un 85% encuestados “aprueba la convocatoria a consulta popular”, El Universo, Oct. 13, 2017, available at http://www.eluniverso.com/noticias/2017/10/13/nota/6428611/cedatos-casi-85-encuestados-aprueba-convocatoria-consulta-popular.
 The Court could approve the questions explicitly or by not making a decision in 20 days.
 Ecuador, ahora sin Tribunal Constitucional, BBC Mundo, Apr. 24, 2007, http://news.bbc.co.uk/hi/spanish/latin_america/newsid_6589000/6589863.stm.
 The President of the Electoral Tribunal also has close ties with Rafael Correa. He was recently honored by the President with the prestigious “Orden Nacional al Mérito en Grado de Gran Cruz.
 See generally Michael A. Bailey & Forrest Maltzman, The Constrained Court: Law, Politics and the Decisions Justices Make (2011).