No such thing as a coup d'etat

October 1 2010, 3:14 PM

As a way of thanking the many gestures of interest and simpathy for the events that occured in my country yesterday, I feel it is my responsibility as an Ecuadorean to clarify some of the facts that have been terribly misunderstood by international media.
 
First and foremost,  there was never a coup d`etat or even a slight attempt to overthrow the Government. The police members that were protesting demanded a very specific thing: the annulment of a Law that was approved a couple of days before, under which some of the bennefits for public servants (including members of the Police and Armed Forces) were removed. If you listened to the interviews made during the first hours yesterday, you might have notticed that not a single one of the rioting police men mentioned anything about taking over power or demanding Mr. Correa to leave his post.
 
If the rioting police members had had a real intention to kill the President (as he repeated after his rescue last night), they would have done so. Especially when Correa himself ripped off his tie and challenged the mob to do it, instead of using that first approach with the police to dialogue and open a path to conciliation. Later on, he took shelter in the nearby Police Hospital under his own will. He was never kidnapped, nor forced to stay there. Even more, many Ministers and State officials met with him and came in and out the building without any restriction.
 
After noon, the events that took place had a deep impact in the appreciation of the crisis by the international community. Alleging the existence of a coup, President Correa declared a state of emergency, under which it demanded all independent media to broadcast the official signal of the State Channel. The Decree under which the state of Emergency was declared never stated that any rights would be restricted, therefore, the limitation to the right to freedom of expression and information was, to say the least, out of line.  The Government´s version was therefore, the only one broadcasted to Ecuadorians and abroad. Regrettably, international media and many NGO´s followed this biased version, and the idea that Ecuador was under a coup was rapidly disseminated.
Please not that international bodies like the Permanent Council of the OAS, and the Inter- American Commission on Human Rights strictly refrained from using the expression ¨coup d`etat¨ when addressing the situation in Ecuador. They just mentioned the existence of a threat to democracy and stability, but nothing was said on an actual attempt to overthrow Mr. Correa because there was none. As many people have manifested, categorizing yeterday´s events as a coup was an irresponsible act of missinformed media that deeply contributed to the raise of panic and chaos.
 
At night, Ecuador witnessed how President Correa was rescued by over 700 members of the special forces (700!!!!!) who engaged on a shooting with the rioting police men in an area where two hospitals are located. Two persons died and other 44 are badly injured, due to this excesive use of force.
President Correa rushed to Carondelet (Ecuador´s  Presidential House), where his supporters had gathered. It was surprising to see how fast the President´s assistants had set a stage, a giant screen, speakers, and music for the people that gathered in the Independece Plaza. It seems that he was pretty confident that he would be free. Strangely enough, he repeatedly stated after his rescue, that his life was in danger and that there was a plot to kill him.
 
What was even more heartbreaking, was that after an hour of intense shooting between the armed forces and the rioting police members  (which was bravely covered by some journalists after the media was allowed to broadcast again), Correa´s followers celebrated his release,  as if the killing among Ecuadorians was something worth celebrating. Even worst, President Correa addressed the people with a belligerent speech, in which he assured that "it shall be no pardon, no forgetting". He accused members of the opposition without any proof of his affirmations. Once again, he used his speech to provoque, to challenge and to foster the division between Ecuadorians, instead of promoting peace, dialogue and forgiveness.
 
As an Ecuadorian citizen, I now wonder who is this person that now has control of my country. What can we expect from a President that celebrates the killing between Ecuadorians as a personal success? What can we expect from a person that acts on vengeance, looking for ways to make any conflict deeper instead of looking for a solution that may satisfy all parties involved?  I am convinced that misinformation was the reason why Correa was able to manipulate yesterday´s events. Therefore, it is very important that everybody knows what really happened. Please forward this to everyone that might be interested.
 
Support Ecuadorians, because we are not the people that are unfortunatedly are ruling our country today.

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"The Mandates of the Constituent Assembly of Ecuad

September 30 2008, 1:04 PM

“Legal Shields against Judicial Protection: The Mandates of the Constituent Assembly of Ecuador”
                                        By Maria Dolores Mino B.
(Word Count: 726)
 
The approval of the new Political Constitution of Ecuador on September 28th, 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 decisions of the Constituent Assembly are above any other norm within the juridical system, and must be obeyed by every citizen or public authority with no exceptions. No decision of the Assembly can be subject to control or appeal by any public authority. The judges and courts that process any action against the decisions of the Assembly will be removed from their functions and immediately prosecuted. So will be sanctioned any other public officer that disobeys such decisions, or foster their non-compliance”[7].
 
           
            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].
            Certainly, some individuals were left in a situation of defenselessness against Constituent Mandates that arguably restricted rights such as property and freedom of expression[13]. In spite of the protests raised nationally and internationally[14], it was impossible to seek for judicial protection, due to the “legal shield” created under Mandate No.1 within Ecuadorian Jurisdiction.
 
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.
            Even when the Assembly can no longer pass any more Mandates, those that were previously approved still generate legal effects. Hopefully, the changes brought by the new Political Constitution will strengthen the Judicial Branch with real independence to conduct its decisions in accordance with Ecuador’s international obligations under Human Rights Law. Meanwhile, adequate protection must be pursued exclusively through the international mechanisms of protection of Human Rights.

[1] American Convention on Human Rights; Article 8. Right to a Fair Trial: 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. Article 25. Right to Judicial Protection:1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.2. The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;b. to develop the possibilities of judicial remedy; andc. to ensure that the competent authorities shall enforce such remedies when granted. See the full text of the American Convention at http://www.oas.org/juridico/English/treaties/b-32.html.
[2] The Consultation was held on April 15, 2007. See: Political Database of the Americas: “Republic of Ecuador: Electoral Results”. Available at: http://pdba.georgetown.edu/Elecdata/Ecuador/consultapop_asconst2007.html.
[3] Article 1 of the Rules of Procedure of the Constituent Assembly establishes:” The Constituents Assembly is summoned by the people of Ecuador and it is entitled with full powers to transform the institutional structure of the State, and to draft a new Constitution […]”.See the Executive Decree No. 148 published on the Supplement No. II to Official Diary No.33, March 5th 2007. Available at:http://www.sigob.gov.ec/decretos/Default.aspx.
[4] Constituent Mandate No. 1, adopted on November 29th 2007 and published in the Supplement to the Official Diary No. 223, November 30th, 2007. View the full text of the Mandate on http://www.historico.asambleaconstituyente.gov.ec/documentos/mandato1.pdf.
[5] Article 7 of Mandate No.1 establishes: “The Constituent Assembly takes over the duties and attributions of the Legislative Branch. Therefore, it ceases in office the Congressmen and Congresswomen elected on October 15th, 2006, as well as their replacements, until the results of the approbatory referendum are published […]”. See also, BBC News: “Ecuador forum dissolves Congress”. Published on November 30th, 2008, available at http://news.bbc.co.uk/2/hi/americas/7119373.stm; The New York Times: “Ecuador Congress is Dissolved in Vote”. Published on November 30th 2007, available athttp://www.nytimes.com/2007/11/30/world/americas/30ecuador.html?_r=1&pagewanted=print&oref=slogin
[6] Supra, Note 4.
[7] Constituent Mandate No. 1, adopted on November 29th 2007 and published in the Supplement to the Official Diary No. 223, November 30th, 2007; Articles 2 and 3. View the full text of the Mandate on http://www.historico.asambleaconstituyente.gov.ec/documentos/mandato1.pdf
[8] The Inter- American Court established that: “when the Convention refers to the right of everyone to be heard by a competent judge or court to “determine his rights”, this expression refers to any public authority, whether administrative, legislative or judicial, which, through its decisions determines individual rights and obligations. For that reason,[…] any State organ that exercises functions of a materially jurisdictional nature has the obligation to adopt decisions that are in consonance with the guarantees of due legal process in the terms of Article 8 of the American Convention”. See I/A Court H.R., Case of the Constitutional Court v. Peru. Merits, Reparations and Costs. Judgment of January 31, 2001. Series C No. 71, para. 71.
[9] The Ecuadorian Constitution of 1998, still in force at that time, gave the Judiciary the power to enforce an “indirect constitutional control”, under which judges or tribunals could refuse to apply any norm that contravened the Constitution or other International Treaties.. See Article 273 of the Political Constitution of Ecuador; approved on June 5th, 1998. Available at http://www.ecuanex.net.ec/constitucion/titulo13.html#1.
[10] Basic Principles on the Independence of the Judiciary; Article 2: “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”. Available at http://www.unhchr.ch/html/menu3/b/h_comp50.htm.
[11] Article 2 of the American Convention establishes: “Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.”
                [12] The Inter- American Court has so defined such norms that violate the Convention upon their sole promulgation. In the Suarez Rosero case, in which an article of the Ecuadorian Criminal Code prohibited the writ of habeas corpus for people detained for crimes under the Law on Narcotic Drugs and Psychotropic Substances, the Court held that “this exception deprives a part of the prison population of a fundamental right, on the basis of the crime of which it is accused and, hence, intrinsically injures everyone in that category. This rule has been applied in the specific case of Mr. Suárez-Rosero and has caused him undue harm. The Court further observes that, in its opinion, his law violates per se Article 2 of the American Convention, whether or not it was enforced in the instant case”. See I/A Court H.R., Case of Suárez-Rosero v. Ecuador. Merits. Judgment of November 12, 1997. Series C No. 35, para 98. See also I/A Court H.R., International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights). Advisory Opinion OC-14/94 of December 9, 1994. Series A No. 14, para. 42-43.
[13] The most relevant case is Mandate 13, under which the Assembly ordered the Agency of Guarranty of Desposits the seizure of two TV stations property of former bank owners that owed the State large sums of money due to the 1999 Bank Crisis. The controversy arose when the News Editors of both stations were removed, and State officials spoke about changing the station’s editorial line. See Mandate No. 13, available at http://www.historico.asambleaconstituyente.gov.ec/documentos/mandato_13_agd.pdf.
[14] In regard of the seized TV stations, many argued that this constituted a violations to the right of freedom of expression. See CPJ: “ECUADOR: Government seizes two TV outlets  and closes a radio station”. Published on July 8th, 2008; available at: http://www.cpj.org/news/2008/americas/ecuador08jul08na.html.; BBC News: “Ecuador state seizes TV stations”. Published on July 8th, 2008. Available at: http://news.bbc.co.uk/1/hi/world/americas/7495929.stm
[15]Article 46 (1) (a) of the Convention provides that, in order for a petition or communication lodged with the Commission in accordance with Articles 44 or 45 to be admissible, it is necessary that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law. The same article, in the second paragraph, provides that this requirement shall not be applicable when the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.
[16] The Inter-American court held that “Article 46(2) is applicable to situations, in which the domestic law does provide for remedies, but such remedies are either denied the affected individual or he is otherwise prevented from exhausting them. These provisions thus apply to situations where domestic remedies cannot be exhausted because they are not available either as a matter of law or as a matter of fact”. See I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights). Advisory Opinion OC-11/90 of August 10, 1990. Series A No. 11, para. 17.
[17] I/A Court H.R., International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights). Advisory Opinion OC-14/94 of December 9, 1994. Series A No. 14, para. 44.
 
[18] Article 25 off the Rules of Procedure of the Inter-American Commission state that “In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons”.
 

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