"The Mandates of the Constituent Assembly of Ecuad (go back »)

 

The approval of the new Political Constitution of Ecuador on September 28^th, 2008 marked the end of a rather controversial process that reformed the country’s legal and institutional structure. Particularly, the broadness of the powers given to the Constituent Assembly to perform such duty is still matter of heated debate, both nationally and internationally.

This paper explores the nature of the normative powers given to the Constituent Assembly under the scope of the rights to a fair trial and judicial protection enshrined in the American Convention of Human Rights[1] and addresses the problem of defenselessness that such powers have brought upon individuals subject to the Assembly’s jurisdiction. Finally, it presents the mechanisms available within the Inter-American System for the protection of fundamental rights in such context, and the expectations on the Judiciary in the aftermath of the reformatory process.

 

BACKGROUND: A CONSTITUENT ASSEMBLY WITH ABSOLUTE POWERS:

In April 2007, the people of Ecuador agreed to call on a Constituent Assembly to draft a new Political Constitution[2], and to entitle it with absolute powers to transform the institutional structure of the State[3].

As soon as it was installed in November 2007, the Assembly passed on Mandate No. 1[4], under which it dissolved the National Congress and assumed the powers and duties of the Legislative Branch for itself[5]. The legal basis for this action was Article 1 of the Assembly' Rules of Procedure[6].

 

MANDATE No. 1: A SHIELD AGAINST JUDICIAL PROTECTION:

 

Mandate Nº1 further established that:

 

 

            The aforementioned dispositions pose a serious problem under the scope of International Human Rights Law, since they violate the rights of individuals to a fair trial and judicial protection. Even when the Assembly’s powers are of a materially jurisdictional nature[8], they cannot be subject to judicial control, regardless if they impose illegitimate restrictions to fundamental rights or gravely threat their exercise. Furthermore, Mandate No.1 establishes sanctions for judges that, ex officio, provide such protection[9], in contradiction with international standards that enshrine the independence of the judiciary[10]. The self- executing nature of Mandate No.1, also violates per se Article 2[11] of the American Convention[12].

 

THE INTER-AMERICAN SYSTEM: A POSSIBILITY FOR PROTECTION:

 

            However, individuals affected by the Assembly´s Mandates can seek just reparations in the Inter-American System of Protection of Human Rights. Actually, the prohibitions under Mandate No. 1 constitute an exception to the rule of exhaustion of domestic remedies, a requisite that has to be met before an individual petition is lodged in the Inter-American System[15]. In this case, the exception applies since domestic remedies exist in Ecuadorian legislation but cannot be exhausted because they are not available by virtue of such Mandate[16]. Therefore, petitions may be presented directly to the Inter- American Commission, avoiding the long internal procedures within domestic courts.  Furthermore, when dealing with self executing norms, and to prevent violations from occurring, the Convention provides for provisional measures”[17] under the Court’s jurisdiction. Also, precautionary measures can be requested to the Commission[18]. Both are swift and effective mechanisms to prevent States from executing decisions that might gravely threat the exercise of fundamental rights.

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