CONCEPTOS, CRITERIOS Y METODOS GENERALES EN TRABAJOS DE TOPOGRAFIA VIAL

Although the process of writing a new constitution often represents an inherently

conflictual endeavor, the creation of Ecuador’s 2007 Constituent Assembly (CA) presents a vital case to review in terms of the response of regional intergovernmental organizations to crises where an executive is accused of overreaching his authority and violating the separation of powers by another branch of government. In the Ecuadorian crisis, the Supreme Electoral Tribunal (TSE) and the president sparred with Congress and the Courts over the ability of the TSE to dismiss members of Congress. However, in spite of the ongoing crisis, the response from regional IGOs was limited to press releases, most of which were supportive of the process and of the Correa government. In order to understand the responses from the OAS, it is important to give a brief background on the 2007 Ecuadorian crisis.

On the 15th of January in 2007, President Correa signed Executive Decree No. 2, which

determined that the TSE would organize a popular referendum to ask the voters if they supported the convocation of a Constituent Assembly with full powers in order to compose a new

constitution.35 On the 23rd of January, the TSE sent the decree to Congress for approval and on

February 13th, with a vote of 57-1 (out of 100 congressmen), Congress approved the popular

referendum but only after changing a portion of the electoral statutes (the signature threshold to be able to run for the CA elections). Lawmakers from the opposition parties walked out of the

35_{The full question was: “Do you approve the convocation and installation of a Constituent Assembly with full} powers, in conformity with the Electoral Statutes that are attached, in order to transform the institutional framework of the State, and to manufacture a new Constitution?”

assembly without voting. The opposition gave two major reasons for their rejection of the CA and their refusal to vote for its convocation: first, they wanted to limit the ability of the CA to have plenipotentiary powers (which would give it the ability to dissolve Congress and other institutions of government), and second, they felt that the CA was unconstitutional since, according to their interpretation of the Constitution of 1998, the only body authorized to start

reforms to the Constitution was Congress, not a special body. On February 28th, President Correa

issued Executive Decree No. 148, which reinstated the text from the electoral statutes removed by the Congress.

On March 1, the TSE established a referendum date and approved the referendum

question posed by President Correa in his decree. On the 6th of March, in response to the

establishment of the referendum date which the opposition believed was unconstitutional, 57 of the 100 members of Congress voted to dismiss four members of the TSE, including the president

of the TSE, Jorge Acosta. In response, on March 7th the TSE removed the 57 legislators in

Congress that had opposed the referendum and voted for the removal of the TSE members and replaced them with their alternates. The alternates then ratified the position of the TSE president.

On March 9th, the OAS Secretary General released a press release stating that he and the

Permanent Council were “following the ongoing developments in Ecuador.” The press release did not directly address the 57 dismissed lawmakers. However, it did mention that the Secretary General “expressed his support of President Rafael Correa’s efforts to advance the constitutional process that seeks to put an end to the chronic instability of the last decades” and that it was “crucial for all political and social sectors to participate in this process in a calm and harmonious environment” (Organization of American States Press Release E-074/07).

Despite the appeals for calm from the OAS SG, the situation escalated. On the 13th and

14th of March, the dismissed lawmakers tried to enter the Congressional building, but were

blocked by the police and protestors, some of whom violently attacked the lawmakers. A few days later, 21 of the alternates of the 57 were smuggled into Congress for a swearing-in session, which officially gave Congress a quorum. Members of the 57 attempted to enter Congress that morning to stop the session, but were blocked from entering by the police on orders from President Correa.

Noting that their attempts to enter the Congressional building had failed, the removed

lawmakers appealed to the judiciary. On the 27th of March, a judge in Guayas province ruled that

the lawmakers should be reinstated. The president of Congress, Jorge Cevallos, accepted the ruling and suspended the congressional session being held so the 57 could return. However, before the 57 were able to retake their seats, the TSE determined that the judge in Guayas “was not competent to make a ruling on the lawmakers” and fired the judge (Los Angeles Times 2007).

In spite of the repeated back-and-forth between the TSE, the 57 lawmakers, and Correa, the referendum was held on schedule and was approved by 82% of the electorate. Following the referendum, the SG of the OAS released a press statement that praised the vote and “the calm atmosphere and free participation of voters” and stated that the SG “trusts that all actors in Ecuador will know how to conduct themselves” (Organization of American States Press Release E-102/07). Again, there was no direct mention of the situation involving the 57 lawmakers or the inter-institutional conflict.

After the victory from the court in Guayas province, the 57 lawmakers appealed to the Constitutional Court for reinstatement. The Constitutional Court reinstated the 57 lawmakers,

calling their removal unconstitutional. In response to the decision by the Constitutional Court, President Correa said the decision was “shameless” and that the congressmen were dismissed for incompetence and did not deserve their jobs back (BBC News 24 April 2007). A day later, a local news channel caught the alternates of the 57 dismissed lawmakers meeting in a hotel with the Minister of Government, Gustavo Larrea. The implication was that the government was making deals with the alternates of the 57 in order to secure their support for whatever measures the Correa administration wanted from them. The alternates left the hotel meeting covering their faces with napkins and tablecloths, earning the Congress in which they participated the nickname “El Congreso de los Manteles” (the Congress of the Tablecloths).

The day after the hotel meeting with the Correa administration, the “new” Congress (with the alternates of the removed 57 lawmakers) met and dismissed the Constitutional Court Judges, asserting that their terms expired in January. Correa again instructed the police to block the 57 lawmakers from reentering Congress, stating that if any tried they would be sent to prison. The federal prosecutor, Elsa Moreno, then ordered the arrest of 24 of the 57 deputies on charges of sedition, forcing several of the lawmakers to flee to Colombia.

In spite of the support the dismissed lawmakers received from the courts, the inability to secure a solid, irreversible outcome prevented the lawmakers from taking their seats in Congress. The elections for the CA, which were monitored by the OAS and The Carter Center, were held in September 2007. The party of President Correa, Alianza País, won 74 out of 130 of the seats in the CA. In November of 2007, the CA convened and one of its first acts of business was to dismiss Congress on charges that it was corrupt. 110 of the 129 delegates present voted for the dismissal of Congress and on November 30, Jorge Cevallos agreed to the dismissal of the

Congress. The new constitution was approved in a referendum on September 28, 2008, winning approval from 69% of the voters.

It is important to note two key discrepancies between the government and the opposition in this crisis that reflect a major difference in how the disparate groups viewed the crisis. The major question in the crisis resolved around whether either group, and if so, which one, was behaving unconstitutionally. The opposition members of Congress claimed that President Correa and the TSE were behaving unconstitutionally, as the 1998 Constitution stipulated that only Congress is authorized to undertake reforms to the constitution. They also argued that the TSE did not have the authority to remove members of Congress and as a result, the executive and the TSE had essentially overreached their authority by removing those members from their seats in Congress. For the opposition, the removal of the 57 lawmakers was a violation of their

democratic rights and the rights of those who elected them into office. On the other hand, the President and the TSE claimed the opposition was behaving unconstitutionally, as they had no right to vote to remove the president of the TSE from office and, although part of the fault lied with the TSE in “erroneously interpreting the Constitution”, the Congress did not have the constitutional right to approve the referendum question nor did they have the right to reform content in the Executive Order (Ecuador Embassy Report 2007).

Second, the opposition parties to Correa were the dominant part of Congress, and their concern was that if the CA was given plenipotentiary powers, the CA would dissolve Congress and, as a result, the dissolution of Congress would limit the ability of the Congress to act as a “check” on the Correa administration. However, for many of the pro-Correa politicians, the idea of full powers for the Constituent Assembly was an indisputable and foregone conclusion. In a personal interview, Alberto Acosta, the President of the CA remarked “Of course the CA should

have plenipotentiary powers. They are fundamental” (Acosta 2014). With regards to the process being a crisis, Maria Paula Romo, a representative of the CA and political leader, stated that “the removal of the 57 was a crisis, but it was because when an electoral tribunal removes half of the Congress, it is an institutional crisis” (Romo 2014). However, Romo also made the point that the TSE had the ability to make the decision based on the electoral laws.

The dispute over which actor had behaved undemocratically meant the situation was less clear in terms of whether there was a violation of the constitution and how to respond as a result. However, this lack of clarity could have been addressed by the OAS, but it was not, primarily because the Secretary General of the OAS and the member states paid deference to the executive of Ecuador as opposed to the opposition, only reviewing documents from the opposition outside of structured meetings. A similar lack of clarity in response to the impeachment and removal of President Lugo in Paraguay led to multiple meetings of the OAS Permanent Council, a fact- finding mission headed by the SG of the OAS, and the suspension of Paraguay from UNASUR and Mercosur- a drastically more in-depth and comprehensive response to crises with similar levels of constitutional and democratic ambiguity.

The response from the OAS to the conflict between the institutions in Ecuador was mostly limited to press releases from the Secretary General urging the parties in the conflict to behave democratically and praising the Correa government for his movements towards a CA. Representatives from the group of the 57 legislators traveled to Washington D.C. to meet with the Secretary General, but according to one of the members, Luis Fernando Torres, the meeting with the SG “didn’t produce any results” and the “OAS and SG Insulza legitimized the

unconstitutional behavior of the electoral tribunal instead of defending democracy” (Personal Interview 17 June 2014).

The issue of the 57 was very briefly mentioned during a report regarding the OAS

observation of the 15th of April CA referendum vote. The ambassador from Guatemala stated

that the Permanent Council member states had been “following with great interest the situation of Ecuador” and asked the SG to share his impressions regarding the conversation he had with the 57 lawmakers the day before. The SG responded that he was reviewing the materials presented by the 57 lawmakers after meeting with them the day before and all of the materials the 57 had presented would be available to the other member states if they requested. The Ecuadorian delegate mentioned that the government of Ecuador had already delivered a document regarding the situation in Ecuador with the 57 lawmakers and that any delegations wishing to understand more could read the document to understand the “legal situation” of the 57 lawmakers (13). After that discussion, the topic was not broached again in the OAS, despite the request by the 57 lawmakers to look into the case.

A majority of the lawmakers did appeal to the Inter-American Commission on Human

Rights to look into their case, submitting a request for review on the 16th of October in 2007.

However, as of 2013 the IACHR had not ruled on the admissibility of the case (El Mercurio 14 November 2013).

The Ecuadorian Constituent Assembly crisis represents an illustrative case of a failure of the international community to look more deeply into events in a crisis state, even though a request from the embattled opposition members to review the case and comment publicly on it was made. Representatives of the 57 lawmakers actively petitioned the international community, including the OAS, for assistance in responding to what they perceived to be the unconstitutional dissolution of their positions. Despite the requests from the opposition, the OAS failed to look more deeply into the crisis, limiting the response to broadly worded press releases regarding the

Constituent Assembly process. Since either the SG of the organization or a member state is required to request a meeting of the Permanent Council or General Assembly, the lawmakers were not able to secure a response in the form of a meeting or the invocation of the democracy clauses from the OAS. Based on the statement from the Ecuadorian ambassador to the OAS regarding the documentation already provided to the OAS discussing the situation with the 57, it is highly unlikely that the government of President Correa would have authorized additional actions looking into the crisis in Ecuador. In effect, the procedural norms and structure of the OAS gave deference to the President of Ecuador, and the potentially unconstitutional behavior of President Correa and institutions allied with the government were not examined in more detail.