—Patricia Sotomayor Valarezo, Pontificia Universidad Católica de Chile, X: @PatySValarezo
The notion of the judiciary’s inherent weakness, as proposed in The Federalist Papers number 78, along with Tsebelis’s idea (Tsebellis 2002) of judges as veto players ultimately absorbed by other political actors, can now be questioned in light of the many judicial decisions with significant political and social impact, particularly those issued by high courts. These courts have increasingly demonstrated the capacity to challenge ruling powers. Therefore, when the judicial function is manipulated through formal institutional means—such as legislation—serious concerns should arise regarding judicial independence, the separation of powers, and, ultimately, the threats posed to the democratic regime.
On June 26, 2025, Ecuador enacted the Organic Law of Public Integrity, a legislative initiative proposed by President Daniel Noboa. The stated purpose of this law is to “regulate all aspects of integrity in public administration, with the aim of eradicating violence; eliminating corruption across all public offices and functions; and improving the efficiency of the public sector.” Despite significant criticism—particularly that it violates the constitutional principle of unidad de materia (requiring that a law address only one subject)—the bill was approved thanks to the ruling party’s legislative majority, thereby enacting a series of legal reforms. Among these, the sixteenth reform provision amends the Organic Code of the Judicial Function, granting the President of the Judicial Council the authority to declare a state of emergency within the judiciary. What does this entail? During such an emergency, a special expedited regime may be implemented for entry into the judicial career, the reassignment and allocation of extraordinary budgetary resources, the early evaluation of judges and prosecutors, and emergency-based contracting as needed.
In this essay, I argue that the reform enacted through the Public Integrity Law constitutes a veiled and institutionally formalized intrusion into the judiciary—a phenomenon that, it should be noted, is neither new in Ecuador nor in the broader region. The dangers are manifold, and in the following pages, I will outline only some of them, seeking to demonstrate how the erosion of judicial institutions is currently being obscured through legal norms that ostensibly aim to address structural problems such as corruption and the infiltration of organized crime into the judicial system. To this end, the essay is structured as follows. The first section offers a brief overview of prior instances of judicial interference in Ecuador, showing that rather than being a novel occurrence, the phenomenon merely assumes new forms. I then analyze the Public Integrity Law, focusing on the provisions that allow the judiciary to be declared in a state of emergency, and illustrating how this constitutes a mechanism of judicial manipulation, the risks it poses to judicial independence, and ultimately, its implications for the democratic regime. The essay concludes with some final reflections.
Since the return to democracy in 1979 attempts at judicial manipulation—and those that were successfully carried out—have been a recurring story in Ecuador, one that has changed only in terms of its actors. Early on, with the installation of the new legislature under the democratic regime, political pacts to distribute nominations to the Supreme Court of Justice emerged quickly. The Conservative Party (PCE) secured 31.25% of the judges (Basabe-Serrano and Llanos Escobar, 2013). The next highest judicial body was likewise not spared from political persecution. Following the 1983 constitutional reform, which altered the length of judicial terms, Congress prematurely terminated the appointments of all justices. In response, President León Febres Cordero, a right-wing leader, staged one of the most grotesque episodes of judicial interference. Considering the early termination of the judges’ appointments unconstitutional, he ordered military tanks to surround the Court building to prevent the newly appointed judges from taking office.
The subsequent years brought only apparent judicial stability, as persistent criticisms of informal pacts to co-opt Supreme Court appointments never subsided. In 1992, a new constitutional reform profoundly altered both the competencies and the composition of the Supreme Court of Justice, creating specialized chambers by subject matter and expanding its membership from 16 to 31 judges. This was followed by the 1997 reform, which established that Supreme Court justices would no longer serve fixed terms but would instead remain in office through a system of co-optation. This change allowed the legislature to remove all sitting justices of the Supreme Court, unleashing yet another attack on judicial institutionalism. This episode of judicial “packing” was merely a prelude to two more: the first in 2004, when President Lucio Gutiérrez, in exchange for avoiding impeachment, supported a legislative resolution that purged the Court; and the second in 2007, when, after several months of political conflict, all members of the Constitutional Tribunal were dismissed (Ríos Figueroa and Sotomayor Valarezo, 2024). It is worth noting that several of these incidents were brought before the Inter-American Court of Human Rights (IACtHR), and as a result, the Ecuadorian state was found to have violated judicial independence and the stability of magistrates (See here for an example)
Four years later, another—though more concealed—intervention in the judiciary took place, this time through a Popular Referendum approved by citizens in May 2011. Then-President Rafael Correa proposed a constitutional reform that, among other measures, terminated the functions of the Judicial Council and created a transitional council tasked with restructuring the judiciary over an 18-month period. The reform also altered the selection mechanism for this body, replacing the merit- and examination-based system with the appointment of shortlists submitted by the country’s principal political powers. Presented as an urgent initiative to strengthen the judicial system, the reform attracted both supporters and detractors (Guerrero, 2015). However, with a president holding a legislative majority and most veto players aligned, judicial autonomy and the courts’ capacity to check potential abuses were significantly undermined. Currently, the Judicial Council is composed of five members selected from shortlists submitted by the executive, the legislature, and other authorities. This institutional design fosters widespread distrust regarding the potential political ties between those responsible for administering justice and the powers currently in office.
The stories of political bargaining and power struggles to capture the judiciary—briefly outlined above—illustrate that the recently approved law authorizing, among other measures, the removal of judges is merely the continuation of a long-standing pattern. As Kosar and Šipulová (2023) observe, many political leaders simply cannot resist the temptation of securing judges loyal to their interests, regardless of the cost. When faced with “unreceptive” judges, the executive typically has at least two options. The first, politically costly, is to ignore judicial decisions. In cases where courts enjoy significant legitimacy, such as the Colombian Constitutional Court, this path is less likely to be chosen. The second, more common, may take various forms: influencing the substance of judicial decisions, formally or informally (Hayo and Voigt, 2014); limiting their jurisdiction and competences (Taylor, 2014); or altering the composition of the bench (Castagnola, 2018). The problem in weakly institutionalized democracies such as Ecuador’s is that there is no need to choose only one of these strategies; political actors can effectively deploy the entire toolkit. The 2025 declaration of a judicial emergency epitomizes this dynamic—essentially a potpourri of potential manipulations of the courts. And I stress “potential,” as the measure has not yet been implemented; it is, however, only a matter of time.
What are the main concerns surrounding this law? First, the ambiguity of the provision authorizing the restructuring of the judiciary is deeply troubling. The law states that “in the event that, following an analysis by the President of the Judicial Council, the Judiciary requires immediate and urgent actions to address problems in the public administration of justice and to implement essential improvements to guarantee citizens’ effective judicial protection, a state of emergency shall be declared in the Judiciary.” It further requires that such analysis be “reasoned.” In practice, however, a single report may suffice to destabilize the third branch of government. Let us pause here. The notion of emergency powers in constitutional law can be traced back to the Roman model, under which, in times of crisis, the Senate could order the consuls to appoint a dictator for up to six months. Modern constitutions have institutionalized a “neo-Roman” model, whereby, in case of emergency, the law itself authorizes the president to adopt exceptional measures. In both the original Roman system and its neo-Roman adaptation, the underlying idea is to restore the situation altered by the emergency, after which the exceptional powers are revoked (Ferejohn and Pasquino, 2004). Granting emergency powers to the President of a body whose primary role is to administer the judiciary is not only arbitrary but also represents a profound erosion of judicial independence—an independence increasingly necessary yet ever more elusive.
Second, the scope of measures that may be undertaken as a result of declaring a judicial emergency is alarming. Based on a report whose requirements appear rather minimal, early evaluations may be carried out and new personnel—whose eventual functions remain unclear—may be hired to address the emergency, while budgetary resources may be reassigned or requested. Particularly concerning at this point is the range of actions that could follow from such evaluations. Could judges and prosecutors be removed from office? Would those who fail the evaluation be permanently excluded from the judiciary? Would there be administrative remedies available to challenge dismissals of affected officials? When a law that presents itself as the savior of the judiciary raises more questions than it provides certainties, the outlook is undeniably bleak. Third, the absence of any time limits on the duration of the emergency is deeply troubling, as the reform is so lax that it sets no boundaries on how long early evaluations of judicial personnel or ad hoc appointments of new judges and prosecutors may continue (Expreso, 2025). Finally, doubts about the law’s true objectives are heightened by the lack of clear parameters for conducting evaluations, given the absence of prior, transparent procedures to ensure impartiality.
The executive has played its hand. Faced with the choice between adhering to the rules of democratic governance or reshaping them to its own advantage, it opted for the latter—echoing leadership styles that govern at the margins of institutional limits and aligning with the logic of delegative democracy (O’Donnell, 1991). The situation is further complicated by the absence of a legislature capable of providing a counterweight to the executive’s ambitions. Hopes now rest with the Constitutional Court, whose composition was recently altered and which, as of July 2025, had yet to rule on 19 constitutional challenges submitted by various social organizations, professional associations, and unions. Although the first of these challenges was filed just days after the law’s enactment, the Court has not yet issued a substantive decision. However, its temporary suspension of several articles of the law triggered a controversial response: the President of the Republic called for a public march against the Court, labeling it an “enemy of the people.” With this political climate, the executive branch appears to have cleared the way for its agenda. The only thing left is the formal declaration of emergency—then we will see how far judicial manipulation can go this time. Might this be the beginning of a new state of emergency?
Suggested citation: Patricia Sotomayor, A Convenient Emergency: Perilous Times for Judicial Independence in Ecuador, Int’l J. Const. L. Blog, Aug 21, 2025, at: http://www.iconnectblog.com/a-convenient-emergency-perilous-times-for-judicial-independence-in-ecuador/
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