—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
Soon after winning the presidential election, new President Lenin Moreno announced a referendum to amend Ecuador’s Constitution. The proposal is the centerpiece of a so-far successful scheme to prevent former three-term president Rafael Correa from running for President again and to remove his remaining allies from critical positions of power. The seven-question referendum proposes to reincorporate presidential term limits and create a mechanism to remove all authorities designated by the “Council for Citizen’s Participation” which for the past decade has appointed all control and judicial authorities in Ecuador.
The referendum faced serious political obstacles. First, the Constitutional Court had to authorize it, and all the Court’s judges had strong ties to President Correa’s regime. Second, the Constitutional Court had previously ruled that the elimination of terms limits was an expansion of the people’s right to choose, and the same Court could well have concluded that the reincorporation of terms limits thus required the strictest constitutional procedure: a Constituent Assembly.
In our previous post we focused on the Court’s then forthcoming decision and its potential to cause a constitutional crisis. Considering that the referendum had significant popular support, the Court had the three choices: 1) to switch sides and authorize the referendum; 2) to prohibit the referendum and risk the President’s defiance; or 3) to make a “Solomonic” decision that authorizes the referendum but rules that its results would not apply to former Presidents in the next elections, i.e., that they would only apply to future presidents but not to past presidents like Correa. 
Now, more than a month after our previous post, President Lenin Moreno has decided to move forward with the referendum without the Constitutional Court’s explicit authorization. The President’s official announcement said: “Because it is The People’s right, I have submitted to the National Electoral Council the decrees calling for a constitutional referendum.” Hours later the Chairman of the National Electoral Council resigned, and a new Chairman aligned to President Lenin Moreno took his place.
The decision was certainly triggered by a draft judgment of the Court rejecting the two central questions of the referendum. The full Court had still not voted on that draft-opinion; however, if the Court’s past judgments are any indication of its future ones, we can understand why President Moreno thought he was likely to lose.
Correa denounced the decrees as a coup d’état. The Constitution, he argued, always requires a Constitutional Court decision before a constitutional referendum can be held: “Article 104.-…. In all cases, a previous ruling by the Constitutional Court on the constitutionality of the proposed question is required.” “Article 438.- The Constitutional Court shall issue a prior and binding ruling of constitutionality in the following cases: 2) Calls to referendum…” “Article 443.- the Constitutional Court shall rule which of the procedures provided for in the present chapter [constitutional amendments] pertains to each case.”
President Moreno conceded this point, but replied that the Court had to make that decision within a certain period of time, and the Court had failed to do so. The law requires the Court to issue a judgment in twenty days, and its failure to do so is presumed as an implicit authorization of the referendum. President Rafael Correa himself applied this law in previous referendums in the same manner.
It is not clear how those twenty days should be counted. The term could be interpreted to start at different stages of the procedure and thus each interpretation could produce a different deadline. For supporters of the referendum, the term started from the moment the President submitted the questions to the Court. For its opponents, it started after procedural formalities were exhausted and the full Court was ready to deliberate on the decision. No matter how the terms are counted, the twenty days have now passed. There are some challenges coming, but we doubt these will succeed.
Still, there is great ambiguity in the legal significance of the expiration of the 20 day-term. For that reason, even if the referendum wins, the manner in which was passed could produce serious repercussions in the future. For some, the fact that the Court never made a judgment is the clearest proof that the term did expire and the Court’s favorable judgment can be presumed. But for others a closer look at the timeline tells a different story. The decrees calling for the referendum were issued on November 29th. Three days afterward, on December 2nd, the National Electoral Council set the date for the referendum’s vote. If by December 2nd the Court’s time to make a judgment had not expired, President Moreno and the National Electoral Council proceeded without the Constitutional Court’s authorization. Thus, if the Court did not make a judgment it was not because it was implicitly approving the referendum, but because its opportunity to make a judgment had already passed. The Constitution requires the Court’s “prior and binding” ruling, and there is no way to make such “prior and binding” judgment on a referendum that had already been called.
A judgment after the referendum had already been called could also have put the Constitutional Court at serious political risk. On December 2, the National Electoral Council set the vote for February 4. That same day, the Council’s Chairman announced that the electoral process had started and that the referendum was now unstoppable. “Now, nothing and nobody can prevent the referendum from happening”. The Council’s President was certainly referring to a provision in the electoral law that allows the National Council to remove “any authority that interferes with an electoral process.” In the past, this provision had been used to remove administrative and judicial authorities. The last time it was applied in similar circumstances was in 2007 when the National Electoral Tribunal removed 57 Congressmen for their opposition to President Correa’s referendum to call Constituent Assembly. Thus, the announcement that “nothing and nobody” can stop the referendum could be interpreted as a veiled threat to the Constitutional Court.
The establishment of a term for the Court’s decision and the presumption of an implicit authorization of the referendum is a reasonable regulation of the Court’s constitutional obligation to issue a “prior and binding” judgment. The establishment of a term in which decisions must be issued creates an incentive to avoid carelessness or negligence by the part of the Court, and creates greater legal certainty on the part of political and social actors. On the other hand, the presumption of a favorable judgment allows the Court to avoid a decision where deliberation and democracy are better served by deferring to other constitutional interpreters. In these circumstances, however, we doubt the Court failed to make a judgment for either of these two reasons. The Court had a draft-opinion ready for deliberation and had called for a public hearing for December 5. If it did not make a judgment it was not because of carelessness or deference to other constitutional interpreters, but because, after the referendum had already been called, the case was moot. The power to make a “prior and binding” ruling had already been challenged. There is no way to make such “prior and binding” judgment on a referendum that had already been called.
So what now? Several Constitutional Courts around the world have developed a doctrine called the unconstitutional constitutional amendment doctrine. The doctrine holds that some constitutional amendments are unconstitutional because they undermine core principles of the existing constitutional order. This judge-made doctrine has been applied in countries like India and Colombia mainly to protect substantive constitutional principles against arguably anti-democratic reforms. The literature conceptualizes the unconstitutional constitutional amendment doctrine as mutually exclusive with a tiered amendment rule. However, the doctrine is so indeterminate that nothing prevents the Court from using it to protect procedural requirements serving a substantive constitutional principle. If the literature has showed us something it is that, as the doctrine has “migrated” across countries, it has also assumed different characteristics and purposes. Recent cases in Honduras, Nicaragua, Costa Rica and Bolivia illustrate this point. Thus, even if the referendum is passed, a future Court could well argue that its process violated a substantive principle like the requirement of counter-majoritarian checks on referendum initiatives.
Ecuador is entering a new era of politics. The party that governed the country for more than a decade is breaking apart. As the country enters a new era of political fragmentation, the power of previously dominated institutions will grow. One of these institutions is the judiciary. The majority of the Constitutional Court’s justices still have several years of service ahead. The process in which this referendum was passed might come up again in a different political scenario. What will the Justices then do? In different political circumstances, and given the Judge’s close ties to President Correa, the Court could well use the doctrine of unconstitutional constitutional amendment to do what this time could not do. If that is the case, even if the referendum wins, it is hard to conclude that the amendment will be a done deal.
Suggested citation: Mauricio Guim & Augusto Verduga, Ecuador’s “Unstoppable” Constitutional Referendum, Int’l J. Const. L. Blog, Dec. 16, 2017, at: http://www.iconnectblog.com/2017/12/ecuadors-unstoppable-constitutional-referendum
 We thank David Landau and Patricio Alvarado for helpful comments.
 Ecuador’s president: Term limit needed to restore constitution, Washington Post, Nov. 29, 2017, https://www.washingtonpost.com/world/the_americas/ecuador-president-referendum-needed-to-restore-constitution/2017/11/29/d58e0272-d545-11e7-9ad9-ca0619edfa05_story.html?utm_term=.ed04406f8277.
 Cuáles son las siete preguntas de la consulta popular y referendum en Ecuador? El Universo, Oct. 3, 2017, https://www.eluniverso.com/noticias/2017/10/03/nota/6413752/cuales-son-siete-preguntas-consulta-popular-referendum-ecuador.
 De Ganar el Sí, un Consejo Transitorio tomará funciones del Consejo de Participación Ciudadana, El Universo, Oct. 4, 2017, https://www.eluniverso.com/noticias/2017/10/04/nota/6415099/ganar-si-consejo-transitorio-tomara-funciones-consejo-participacion.
 Tatiana Ordeñana Sierra decidirá sobre consulta popular, El Universo, Oct. 21, 2017, https://www.eluniverso.com/noticias/2017/10/21/nota/6440956/activista-decidira-sobre-consulta.
 Ecuador has a tiered system of constitutional amendments. See Rosalind Dixon and David Landau, Tiered Constitutional Design, 86 G.W. L. Rev __ (forthcoming 2018). Amendments that restrict constitutional rights can only be approved by a Constituent Assembly. See Articles 441-444 of the Constitution of Ecuador.
 If the sole purpose of term limits were to protect democracy from incumbent advantage, the rationale would not apply former Presidents, particularly to former Presidents in the political opposition or minority.
 Adriana Noboa, Lenín Moreno Envía a CNE la Convocatoria a Consulta Popular, El Comercio, Nov. 29, 2017, http://www.elcomercio.com/actualidad/presidente-leninmoreno-convocatoria-consultapopular-cne.html.
 Adriana Noboa, Juan Pablo Pozo se Despide del CNE a Puertas de la Convocatoria a Consulta Popular, El Comercio, Nov. 29, 2017, http://www.elcomercio.com/actualidad/juanpablopozo-salida-cne-convocatoria-consulta.html.
 Mario Alexis González, Jueza Tatiana Ordeñana Presentó el Proyecto del Dictamen Sobre Cinco Preguntas de la Consulta Popular, El Comercio, Nov. 27, 2017, http://www.elcomercio.com/actualidad/jueza-tatianaordenana-proyecto-consulta-corteconstitucional.html.
 Marcos José Miranda Burgos, Balance Constitucional I, El Universo, https://www.eluniverso.com/opinion/2015/05/03/nota/4831146/balance-constitucional-i (last visited Dec. 11, 2017); Marcos José Miranda Burgos, Balance Constitucional II, El Universo, https://www.eluniverso.com/opinion/2015/06/23/nota/4979917/balance-constitucional-ii (last visited Dec. 11, 2017).
 Correa dice que llamado a Consulta Popular es un “Golpe de Estado”, La Republica, Nov. 29, 2017, http://www.larepublica.ec/blog/politica/2017/11/29/correa-dice-llamado-consulta-popular-golpe-estado/.
“Article 105.-… If the Court does rule on the referendum in the term of 20 days after initiating the constitutional control, it will be presumed that is has issued a favorable judgment.” Artículo 105 de la Ley Orgánica de Garantías Jurisdiccionales y Control Constitucional. See also Tal como Rafael Correa en el 2011, Lenín Moreno llamó a Consulta Popular ante el Silencio de la Corte Constitucional, El Universo, Nov. 29, 2017, https://www.eluniverso.com/noticias/2017/11/29/nota/6504040/tal-como-rafael-correa-2011-lenin-moreno-llamo-consulta-popular. President Correa distinguishes his past decision from President Moreno’s the present one on the fact that his referendums were not proposing constitutional reforms and the Constitutional Court’s procedural rules regulating the 20-day term did not existed at that time.
 Rafael Correa y Ricardo Patiño impugnarán el llamado a Consulta Popular, El Universo, Nov. 29, 2017, https://www.eluniverso.com/noticias/2017/11/29/nota/6503965/rafael-correa-ricardo-patino-impugnaran-llamado-consulta-popular.
 Llamado a consulta popular en Ecuador provoca apoyos y cuestionamiento sobre su legalidad, Andes, Nov. 29, 2017, http://andes.info.ec/es/noticias/actualidad/1/procedimiento-de-llamar-a-consulta-del-presidente-moreno-provoca-apoyos-y-cuestionamientos-sobre-legalidad.
 La Consulta Popular de Lenin Moreno ya tiene papeleta y un calendario fijo, El Universo, Dec. 2, 2017, https://www.eluniverso.com/noticias/2017/12/02/nota/6507265/consulta-popular-ya-tiene-papeleta-calendario-fijo.
 CNE asegura que “nada ni nadie” detendrá la consulta popular de 4 de febrero de 2018, Ecuavisa, Dec. 1, 2017, http://www.ecuavisa.com/articulo/noticias/actualidad/342521-cne-asegura-que-nada-ni-nadie-detendra-consulta-popular-del-4
 TSE destituye a 57 legisladores de Ecuador, El Tiempo, March 8, 2007, http://www.eltiempo.com/archivo/documento/MAM-2409606
 Alexander Bickel, The Passive Virtues, 75 Harv. L. Rev. 40 (1961).
 En la Corte ya no consta audiencia por referendum, El Universo, Dic. 3, 2017, https://www.eluniverso.com/noticias/2017/12/03/nota/6508642/corte-ya-no-consta-audiencia-referendum.
 Ecuador does not explicitly contemplate a doctrine of unconstitutional constitutional amendment. However, article 127 of the Law of Constitutional Guarantees provides that “The juridical provisions approved in referendum are subject to the general regime of constitutional review.” The provision is ambiguous, because the expression “juridical provisions” is extremely generic. However, the fact that is so generic could be interpreted as having the intent to encompass the whole universe of legal provisions.
 Rosalind Dixon & David Landau, Transnational Constitutionalism and Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int. J. Const. L. 606, 608 (2015).
 Id. at 614.
 Yaniv Roznai, Unconstitutional Constitutional Amendments- The Migration and Success of a Constitutional Idea, 61 Am. J. Comp. L. 657 (2013).
 David Landau, Presidential Term Limits in Latin American and the Limits of Transnational Constitutional Dialogue, Law & Ethics of Human Rights (forthcoming); Sergio Verdugo, How the Bolivian Constitutional Court Helped the Morales Regime Break the Political Insurance of the Bolivian Constitution, Int’l J. Const. L. Blog, Dec. 10, 2017.
 See in general Gretchen Helmke & Julio Ríos-Figueroa, Courts in Latin America (2014).