—Patricia Sotomayor Valarezo, Pontificia Universidad Católica de Chile, Research Associate, CRISPOL; X= @PatySValarezo
It may seem obvious that political institutions and constitutions reflect the preferences of the veto players who hold power at a given moment. When the design and approval of constitutional reforms result from plural agreements among political elites with diverse social base support, the chances of “tailor-made” institutional arrangements to favor a particular political agenda diminish. Under such conditions, institutional safeguards are more likely to emerge, protecting the opposition and citizens from arbitrary executive action and thereby increasing the prospects for strengthening liberal democracy (Negretto and Sánchez Talanquer, 2021). However, in democracies experiencing stagnation (Mainwaring, 2021), marked by structural problems such as inequality and persistent deficiencies in state performance, the assumption of a broad and plural support base becomes far less convincing. In these contexts, it appears more plausible that those in power will choose to implement an institutional architecture that serves the short-term interests of the incumbent, paying limited attention to “minor issues” such as checks and balances or the unrestricted respect for the rule of law.
Ecuador is all too familiar with these dynamics. Institutional instability has been one of the country’s persistent challenges, reflected in the fact that it has adopted twenty constitutions throughout its history (Guapizaca, 2025). Unfortunately, the current moment is no exception. In June 2025, the “Organic Law on Public Integrity”—a bill introduced by the President—was approved. This law, part of the so-called “Efficiency Plan,” aimed, among other things, to reduce the size of the state and enable the executive to declare the judiciary in a state of emergency (Sotomayor, 2025). It remained in force for only three months before being struck down by the Constitutional Court. The decision followed nearly thirty citizen-initiated constitutional challenges. In practice, however, the Court did not even address the numerous substantive claims regarding potential rights violations. Instead, it declared the law unconstitutional on procedural grounds.
This ruling, along with several others responding to executive-led attempts at constitutional reform, has been interpreted by the occupant of Carondelet (the Government Palace) as a direct challenge to presidential authority—even though these decisions fall squarely within the Court’s constitutional mandate. In response, the executive adopted a strategy of radical confrontation. Following a series of episodes that included public statements by the president and several ministers attacking the Court, as well as the display of constitutional judges’ faces on public streets as supposed culprits of the security crisis that the country has experienced since 2021, the government called for a national referendum to determine whether citizens wished to replace the 2008 Constitution. In light of these developments, this essay outlines potential scenarios and implications for the future of the Constitutional Court, based on the outcomes of the direct democracy exercise undertaken by Ecuadorian voters.
Scenario One: Conflictual Stability
Direct consultations with citizens should not serve as a barometer of a government’s popularity or as evidence of public support for its performance. Yet in weakly institutionalized systems, they are often used precisely for those purposes. Referendums and plebiscites become mechanisms through which executives transfer politically costly decisions to the electorate or seek ongoing legitimation through repeated electoral exercises (Gargarella, 2017). When the results do not align with the executive’s expectations, presidents are often compelled to adjust their strategies. In this sense, the outcomes of Ecuador’s 2025 popular consultation prompt several reflections regarding the future of relations between the incumbent administration and the judiciary—particularly the Constitutional Court.
In what follows, and for the sake of analytical clarity, I treat the possibility of constitutional reform as a dichotomous variable within a simplified unidimensional political framework. From this perspective, the first scenario—drawing on a taxonomic classification of political outcomes (Sartori, 1994)—is one of conflictual stability. In this case, as occurred in Ecuador, a majority of voters rejected the executive’s proposal, thereby keeping the 2008 Constitution in force. If the persistence of the status quo is taken as a proxy for political stability (Tsebelis, 2002), this scenario appears to be the least disruptive. However, the situation is far from straightforward. The current administration still has more than three years left in its term, meaning that the likelihood of repeated interactions with the Constitutional Court remains high. This opens the door to potential conflicts between a political authority resistant to a model of constitutionalism in which judicial review is an inherent component (Couso, 2011) and a Constitutional Court that appears willing to exercise its full constitutional powers.
Another challenge inherent in this scenario concerns the full renewal of constitutional judges scheduled to begin around August 2028. Given Ecuador’s mechanism for selecting members of the Constitutional Court, much of the outcome depends on the “selection commission,” whose members are appointed by the executive, the legislature, and the Transparency and Social Control branch. Under the current legislative configuration, largely aligned with the executive, the upcoming selection process raises serious concerns regarding judicial autonomy (Brinks and Blass, 2018). This situation illustrates how institutional designs that ostensibly seek to safeguard the separation of powers can produce the opposite effect in political systems with weak incentives for the exercise of horizontal accountability.
This scenario, which, incidentally, appears to be the most probable, would also involve renewed efforts to influence the judiciary through legal reforms, such as those pursued via the now-unconstitutional Public Integrity Law. That law would have enabled the executive to declare a judicial emergency, remove sitting judges, and appoint ad hoc judicial authorities. Although this mechanism can no longer be invoked, the likelihood of future efforts of this kind remains high, particularly in contexts where the executive commands a legislative majority and can therefore shape legal reforms to suit its immediate political interests. In such circumstances, the Constitutional Court emerges as the primary institutional check, capable of halting initiatives that, at the very least, risk violating the procedural requirements of the legislative process.
Another dimension of this scenario concerns the oversight of states of emergency, which the executive will likely continue to declare in response to the country’s ongoing security crisis. Since January 2024, the president has designated the situation as a non-international armed conflict, leading to a steady stream of emergency declarations across multiple provinces. In this context, the Constitutional Court has repeatedly issued rulings limiting the scope and permissible actions under these decrees, while admonishing the executive for its failure to adopt structural measures. The government’s response has been consistent: persisting in the use of emergency powers and portraying the Court as an “enemy of the people” for allegedly obstructing effective action against crime. The executive will probably maintain its reliance on emergency declarations as a tool to address public security challenges, despite the negligible results achieved in practice. Consequently, the Constitutional Court faces a complex and fraught relationship with the current political authorities.
Scenario Two: Peaceful Stability
Had Ecuador moved toward adopting its twenty-first constitution, it is highly likely, based on historical precedent, that the executive would have sought to reshape the structure of the current Constitutional Court. Possible reforms could have included altering the number of judges, modifying their terms in office, or changing the mechanisms for their selection and renewal. Another option might have been to maintain the Court’s institutional form while attempting to limit its existing competencies. All of this, however, remains in the realm of counterfactuals, as Ecuador has, for now, closed off that avenue. With constitutional replacement no longer viable and relations with the Court already strained, the incumbent administration faces another strategic option. Under this scenario, the executive concludes that portraying the Constitutional Court as an adversary no longer yields the desired political benefits. It therefore decides to halt both open confrontations and legal reforms aimed at co-opting the judiciary. This shift would pave the way for a more cooperative relationship in which constitutional review is not interpreted as an attack or a challenge, but rather as an inherent element of institutional checks and balances.
A scenario of this sort carries several important implications. First, although an executive with a legislative majority faces fewer incentives to negotiate, a strategic shift toward a more cooperative relationship with the Constitutional Court would require the government to proceed correctly within Congress. In practical terms, this means little more than adhering to the rules of the legislative process. It is worth recalling that many of the Court’s recent rulings of unconstitutionality did not even address the substantive claims raised by citizens; it was sufficient for the Court to verify that laws passed by the executive’s majority failed to comply with procedural requirements to strike them down. Accepting the rules of the democratic game—and all that this entails—would therefore lead to more careful and procedurally sound lawmaking. This development would certainly be welcomed within an already fragile political regime.
Another implication of abandoning the strategy of portraying the Court as an adversary concerns the executive’s systematic reliance on emergency decrees in response to rising insecurity. If the government were to recognize that the Court, in exercising constitutional review over these measures, is merely fulfilling its institutional role, it would have reason to scale back a practice that has clearly proven ineffective. The Constitutional Court has repeatedly urged the executive to adopt alternative policies to address pressing issues such as the prison crisis and organized crime. Thus, if the administration seeks a different kind of relationship with the Court, it might consider abandoning the frequent use of emergency declarations altogether.
The path ahead is now clearer. Faced with two options, a decisive majority has effectively ruled out the possibility of constitutional change and, with it, any attempt to alter the structure or formal powers of the Constitutional Court. As a result, at least for the time being, the Court remains intact—and potentially strengthened in the eyes of the public, which may act as a form of “citizen shield” against future governmental assaults (Brinks and Blass, 2018). What remains to be seen is which course of action the executive chooses to pursue. One possibility is a strategic shift away from confrontation: the government could decide that three years is too long to sustain an ongoing conflict with the Court, particularly now that the prospects for co-opting it appear increasingly remote. The second path is a continuation of recent behavior, in which the Court’s exercises of constitutional review are met with hostility from the executive. Unfortunately, given the weak incentives within the political system to discourage actions that verge on democratic erosion, this latter scenario seems like the more plausible one.
Suggested citation: Patricia Sotomayor Valarezo, The People Said “NO”: Now What? The Constitutional Court in Ecuador in the Aftermath of Noboa’s Failed Referendum, Int’l J. Const. L. Blog, Nov. 21, 2025, at: https://www.iconnectblog.com/the-people-said-no-now-what-the-constitutional-court-in-ecuador-in-the-aftermath-of-noboas-failed-referendum/