—Andrés Cervantes, Pompeu Fabra University
As I write these lines, I am thinking about the complex situation that Ecuador is currently facing because of the national emergency declared over the aggressive progression of the Covid-19 pandemic. However, some of the thoughts expressed here may be also relevant to other Latin-American nations as the Global South shares some structural features: extreme poverty, weak standards on the rule of law, distrust of the political system and a growing disinterest on democracy.
For example, Philippine President Rodrigo Duterte has warned violators of coronavirus lockdown that they could be shot. In the case of Peru, the National Congress authorized the use of lethal force in order to enforce lockdown. Another concern is the use of the language of “war” and the “invisible enemy” from the Chilean president. Another illustration of the complex situation for the rule of law in Latin-American is clearly the case of El Salvador president who decided to openly disobey a ruling of habeas corpus adopted by the Constitutional judiciary as Human Rights Watch notes.
In any case, Guayaquil, one of the most important cities in Ecuador, is now sadly identified as the “Wuhan of Latin America.” The government seems incapable of managing the crisis in the death rate, the problem of Ecuadorians abroad that can’t enter the country, or the daily drama that the lockdown implies to extremely poor families.
Taking the context into account, my main concern is identifying what should be the role (if any) of constitutional justice and, when appropriate, of the Inter-American System for the Protection of Human Rights during the pandemic scourge.
It seems to me that this is a legitimate and relevant question for at least two reasons: I. Most of the States in the region have declared a national emergency, which gives presidents powers that they would not normally exercise in ordinary situations, such as suspension or limitation of fundamental rights; and, II. This global crisis does not affect everyone equally. There are people who are especially unprotected, such as medical, police, military personnel, people deprived of liberty, homeless people, poor families and the LGBT population.
One fundamental problem is that during these times of crisis it often happens that both citizens and legislative and judicial authorities adopt an extremely deferential stance in favor to the executive branch on the understanding that it has political, institutional and technical legitimacy to effectively adopt the means to stop the advance of the pandemic.
A common argument for rejecting the intervention of constitutional justice in these matters is that Constitutional Courts should be limited to a formal control of the national emergency order and that justices should not rule by invading other branch constitutional functions; in other words, that the Court should respect the principle of “separation of powers” and that it lacks an adequate epistemic position to evaluate and decide on technical questions or resolve the best way to distribute scarce economic resources. As you may note, these are the exact same arguments that are usually used to reject the justiciability of social rights.
To refute these arguments, it is best to start with the “separation of powers.” The Ecuadorian constitution of 2008 recognizes that “the institutions of the State, its organisms, dependencies, public servants or servants and the people who act by virtue of a state power…will have the duty to coordinate actions to make effective the enjoyment and exercise of the rights recognized in the Constitution.”
Similarly, the Colombian constitution of 1991 includes the “principle of harmonious collaboration” between the powers (Art. 113), which has served as basis for the Colombian Constitutional Court to declare the “unconstitutional state of affairs” in cases of a patent and a prolonged massive violation of fundamental rights by the State, mainly due to the failure of the legislature and the executive to remedy structural injustices. This doctrine has been used in cases such as the forced displacement of people, prison overcrowding, the danger faced by human rights defenders, among others.
Nothing prevents Ecuador from embracing the jurisprudential doctrine of its neighboring country, taking into consideration that the Constitutional Court of Ecuador has the obligation to carry out a control of the decrees of state of exception that extends both to the formal and the material constitutional requirements (Arts. 120-123 LOGJCC) for which it must monitor the suitability and proportionality of the measures adopted by the President. In addition to this ex officio review, a second manner to obtain a response from the Constitutional Court is a non-compliance injunction, which can be proposed by anyone, (Art. 163 LOGJCC) in case the Executive fails to comply with a ruling of the Constitutional Court on the national emergency.
A third way of accessing justice is an injunction for non-compliance with “reports from international human rights organizations” such as the Inter-American Commission and Court of Human Rights which have already issued briefings and declarations (Art. 52 LOGJCC). Finally, a fourth way – although in the current factual context inapplicable because ordinary justice has been suspended and leaving one’s home is equivalent to risking one’s life – is an acción de protección (an individual constitutional injunction) that can be proposed to protect constitutional rights against the actions or omissions of the State in relation to public policies (Art. 88 CRE).
Both from the philosophical perspective of the constitutional state and from a procedural law perspective, constitutional justice must intervene actively during the pandemic crisis. It must be borne in mind that according to the Ecuadorian constitution, procedural law is a means for justice and not an end in itself, and therefore “justice will not be sacrificed for the sole omission of formalities” (Art. 169). Also, according to the fundamental norm, any “regressive act or omission that unreasonably diminishes, impairs or annuls the exercise of rights” is unconstitutional (Art. 11.8).
I do not support a naive vision of constitutional justice, but I do support a deliberative vision in which the Constitutional Court can be the forum to listen to experts, reduce the strongest forms of governmental inertia, coordinate the action between different levels of government and public entities, request explanations about the reason for their actions or omissions, and demand – while respecting margins of appreciation – that the fundamental rights of everyone be properly guaranteed.
My practical concern, in the Ecuadorian case, is that at least since the 2008 Ecuadorian constitution a state of emergency has never been declared unconstitutional. More specifically, in the case of Covid-19, the Constitutional Court has limited itself to giving suggestions to the government that would appear not to be judicially enforceable.
Specifically, the Constitutional Court of Ecuador limited the constitutionality of the state of emergency as long it respected some guidelines. Among others: that the State has the duty to protect homeless people and vulnerable groups and people who labor in essential areas, such as policemen and health service personnel. Additionally, the Court affirmed the state duty consistent in allowing the return of Ecuadorian nationals that are impeded from entering the country by the lockdown of airports and borders.
Taking this in consideration, two non-compliance injunctions were filed by groups of citizens asking the Court to order the National Government not to pay sovereign debt but rather to invest those $300 million dollars in the safeguard of the medical personnel, homeless people and the national health system (case 29-20-IS). The other injunction required the Court to order the national government to allow and coordinate charter flights from around the world for Ecuadorians to come back home (28-20-IS).
Of course, these cases are of those extremely difficult to solve. However, it is legitimate to criticize the fact that the Constitutional Court ruled over these cases in favor of the national government without waiting for it to appear in front of the Court and give formal response to the citizens claims. This is contrary to basic a basic principle of equal treatment under the law and the due process rights. It seems obvious that it is not the Court business to allocate resources but it is the legitimate Court duty to ensure national government is protecting fundamental rights. Similarly, the Court could have asked the government what are the specific actions enforced in order to bring nationals back to Ecuadorian soil. In sum, the main claim is that even when the Court should not adopt decisions that would be ignored, it could legitimately become a forum for deliberation and effective call to action.
Meanwhile, the government does not comply with guaranteeing the minimum biosecurity standards for “front-line” personnel and citizens are condemned to die before a collapsed health system in which there is also no extraordinary economic investment to face the crisis.
From an international perspective, the Inter-American Commission on Human Rights has already expressed its concern about the general situation in Latin America regarding the coronavirus in its Resolution 1/2020, which reveals a way to overcome inertia at the national level: precautionary measures requested by the Commission. In conclusion, it is worth remembering that all rights have costs, as Cass Sunstein notes, but this is not a valid excuse for infringing the constitution. On the contrary, it forces us to think of ingenious ways to make constitutional promises come true because, as Ronald Dworkin notes, we must take rights seriously.
Suggested citation: Andrés Cervantes, The Role of Constitutional Justice in Times of Crisis: The Case of Ecuador, Int’l J. Const. L. Blog, Apr. 22, 2020, at: http://www.iconnectblog.com/2020/04/the-role-of-constitutional-justice-in-times-of-crisis-the-case-of-ecuador/
 CNBC. ‘Shoot them dead’ — Philippine leader says won’t tolerate lockdown violators: https://www.cnbc.com/2020/04/02/philippines-duterte-threatens-to-shoot-lockdown-violators.html
 Europapress. Perú aprueba una ley que exime de responsabilidad penal a militares y policías: https://www.europapress.es/internacional/noticia-peru-aprueba-ley-exime-responsabilidad-penal-militares-policias-20200329133416.html
 EFE, Chile supera los 7.200 casos y Piñera habla de una “guerra mundial” por los ventiladores: https://www.efe.com/efe/america/sociedad/chile-supera-los-7-200-casos-y-pinera-habla-de-una-guerra-mundial-por-ventiladores/20000013-4219380
 Cfr. El País, El coronavirus desborda Ecuador y abruma a su población por la acumulación de cadáveres en casas: https://elpais.com/sociedad/2020-04-01/el-coronavirus-desborda-ecuador-y-abruma-a-su-poblacion-por-la-acumulacion-de-cadaveres-en-casas.html
 For example, “The IACHR calls on Member States to adopt a gender perspective in the response to the COVID-19 pandemic and to combat sexual and domestic violence in this context”, April 11, 2020: https://www.oas.org/en/iachr/media_center/PReleases/2020/074.asp
 On departmentalism, see Tushnet, Mark. “Alternative forms of judicial review.” Mich. L. Rev. 101 (2002): 2781.
 On deferential judicial review, Young, Katharine G. “A typology of economic and social rights adjudication: Exploring the catalytic function of judicial review.” International journal of constitutional law 8.3 (2010): 392-395.
 Landau, David. “Political Institutions and Judicial Role in Comparative Constitutional Law.” Harvard International Law Journal, 51.2 (2010): 357-362.
 Ley orgánica de Garantías Jurisdiccionales y Control Constitucional.
 I/A Court HR. Covid-19 and human rights: the problems and challenges must be addressed from a human rights perspective and with respect for international obligations: http://www.corteidh.or.cr/docs/comunicados/cp_27_2020_eng.pdf
 The Judiciary Council, and administrative body, has suspended by a memorandum (DP17-2020-0178-MC) the possibility to file any type of constitutional injunction with the exception of habeas corpus.
 Dixon, Rosalind. “Creating dialogue about socioeconomic rights: Strong-form versus weak-form judicial review revisited.” International Journal of Constitutional Law 5.3 (2007): 407.