Blog of the International Journal of Constitutional Law

In Ecuador, Autocracy by Referendum

A frustrated Simon Bolivar is said to have once complained of his empire that Colombia was a university, Venezuela a barracks, and Ecuador a convent. This assessment seemed surprisingly prescient last week, with a Colombian education minister appointed emergency mayor of Bogota, Venezuela accused by the IISS of arming FARC rebels, and Ecuadorians passing a ten-question constitutional referendum which, among other things, set up a “Regulatory Council” to prohibit “violent, sexual, or discriminating” content in the printed news, radio, and television.

The last decade has witnessed the rise of autocracy by referendum in Latin America. Ecuador’s Correa has followed the lead of his political allies Venezuela’s Hugo Chavez, and Bolivia’s Evo Morales, in using personal popularity to undermine institutional independence and limit personal freedoms. Yet while the latter factor may raise more eyebrows, and indeed the potential censorship ramifications of the new Regulatory Council’s authority have received a fair amount of international press coverage, the former is significantly more destructive in that it is the hardest to undo.

Under the new constitutional restructuring, the current members of the Ecuadorian Judicial Council will be dismissed and replaced with a three member “Transition Council” charged with reforming the entire judicial system over the next 18 months. President Correa will personally appoint one of the three transitional judges. The servile Ecuatorian congress, dominated by his party, will appoint another.The last spot will be chosen by the “Transparency and Social Control” authority; an executive appendage created when Correa had the Ecuadorian Constitution entirely rewritten in 2008.

So why amend the judicial structure of your own constitution a mere three years after its ratification?

Rumor has it that the 2010 police rebellion against Correa, during which he was temporarily held captive, left the self-styled “Warrior President” nervous. Through the resonance of his anti-establishment message in a country with a large population of rural poor, Correa can win referendum votes. However, as Hugo Chavez learned last October, personal popularity can fall short of securing a parliamentary election for one’s party and Ecuador is due for a legislative election next year. Chavez was able to overcome securing less than half of the popular vote through considerable gerrymandering and having the lame-duck National Assembly grant him emergency authority, ostensibly for the duration of the next congressional session. Contingency hijinks of this nature often require Supreme Court complicity, however, and the fate of Honduras’ Manuel Zelaya in 2009 provided a vivid example of what an independent Judiciary can accomplish when it bares its teeth… A result which was likely not lost on Rafael Correa.

The tragedy in cases such as this one, is that institutions take time to achieve relevance in a new democracy. Concrete institutional relationships must replace easily corrupted personal ones, and roles must be carefully defined within the spectrum of governance or else much authority is deferred to the presidency by default. Constitutional shenanigans like the one in Ecuador effectively reset the clock on developing this structured independence, and reinforce a self-perpetuating cycle of governmental adhocracy and presidential control.

To draw on an example from American history, In 1832, Andrew Jackson ignored a ruling of the US Supreme Court so as to allow the State of Georgia to expel the Cherokee Tribe from their land. In doing, so he is supposed to have quipped: “(Chief Justice) Marshall has made his decision, now let him enforce it.” If, after 50 years of institutional history, the US Supreme Court could not keep a populist president from doing exactly what he wanted, what hope is there in Latin America where no non-presidential institution is given leave to exist for anywhere near that long?

Daniel Lansberg-Rodriguez, May, 2011


7 responses to “In Ecuador, Autocracy by Referendum”

  1. JIC Avatar

    Referring to what Hondura’s courts did in the case of President Zelaya as an example of what an “independent Judiciary can accomplish when it bares its teeth” is so far from reality that it makes one wonder about the other claims made in the post.

  2. Daniel Lansberg-Rodriguez Avatar

    This comment has been removed by the author.

  3. Daniel Lansberg-Rodriguez Avatar

    Hi JIC, What part of the claim that the Honduran Judiciary was complicit in the Zelaya ouster and that this added to its perceived legality do you find fault with? For more information, I would refer to the US Embassy assessment Wiki-leaked from Teguchigalpa during the crisis:

  4. JIC Avatar

    If that was your point then I agree. My problem was with the characterization of the Honduran Judiciary as an “independent Judiciary” (as if its decisions about Zelaya were free from any political motivations).

  5. Daniel Lansberg-Rodriguez Avatar

    No, I meant only that it was independent from the executive. Which is why there is now a scramble to tuck judiciaries safely under the presidential wing in other Latin American Countries. Pragmatically, they are a good deal easier to control in the long term than are legislatures.

  6. JIC Avatar

    Okay, I see the point now. Thanks for the clarification.

  7. Yeah Right Avatar
    Yeah Right

    I am very glad that your biased opinions of Rafael Correa, are simply that, your biased opinions. All you writers that criticize “leftists” presidents write alike. Blah blah blah, Hugo Chavez, blah blah blah, Evo Morales, blah blah blah, Correa, blah blah, Iran. Correa will win and his party will gain control of the parliament, and then I will laugh and think of how inconsequential this article, and your opinions were.

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