A series of maneuvers by Ecuador’s Constitutional Court and the National Assembly—both controlled by allies of President Rafael Correa—have paved the way for a package of amendments to the constitution. Those changes will expand the president’s grip over the state, permit Correa’s indefinite re-election and quite possibly threaten freedom of expression.
On November 6, Ecuador’s Constitutional Court ruled that constitutional amendments could be adopted by legislative vote without a popular referendum—itself a violation of the constitution’s original intent. From there it was only a short step to their approval.
Correa’s party, Alianza Pais, controls two-thirds of the legislature, giving it the numbers necessary—now under the Constitutional Court’s ruling—to amend the constitution. On December 3, the National Assembly debated and approved the package of 15 amendments by a 100 to 8 vote—without any changes and with less than ten hours of debate before the vote.
Most of the media and public attention has been focused on the amendment that lifts all term limits for popularly elected government posts, paving the way for Mr. Correa’s re-election in 2021, as well as those lucky Alianza Pais legislators that voted for the change. Mr. Correa, who was already re-elected once in 2013, joins a number of the region’s leaders who have rewritten election laws to prolong their mandate.
But civil society organizations have argued that the real risk to Ecuador’s already-fragile democracy may come from the other reforms.
One of these amendments allows the military to “complement” the police force’s duty to maintain internal security. This is particularly troublesome given the Ecuadorian government’s harsh response to recent protests. On the same day the amendments were approved, riot police used tear gas to disperse a group of protesters that had gathered in front of the National Assembly. At least two journalists and an unknown number of protesters sustained injuries after police charged against protesters with batons. The incident resulted in at least 50 arrests and 21 convictions for “issuing expressions of discredit and dishonor against policemen.” The protesters were sentenced to 15 days in jail for allegedly insulting police. The addition of the military now only ups the stakes and raises the threat of even greater use of force against demonstrators.
The other worrying amendment classifies communications as a “public service.” Government officials lauded the amendment as a progressive step to democratize the media and promote responsible journalism. Among other benefits, the government claims that it will engage more Ecuadorians in disseminating and gathering news by creating incentives for lower income communities to open radio stations and ensuring that indigenous groups can access information in their native tongues, undeniably laudable goals.
Critics, however, have warned of the amendment’s potential for abuse. The government could use its constitutional authority to regulate public services as a pretext to expand its control over the media. Certainly in the past, Correa’s government has been far from a proponent of free media. Mr. Correa’s party used similar arguments to justify the Organic Communications Law (OCL) in 2013. Two years after its adoption, the Committee to Protect Journalists labeled the OCL “one of the most restrictive communications laws in the hemisphere.”
The OCL created the Superintendency of Information and Communications (SUPERCOM), an extrajudicial body, appointed by the executive, with the sole authority to interpret its provisions and impose sanctions that cannot be appealed. Critics argue that the wide discretion granted to SUPERCOM has resulted in disproportionate penalties and discriminatory interpretations of the OCL’s ambiguous provisions.
In one case, SUPERCOM gave Xavier Bonilla, an editorial cartoonist, 72 hours to correct one of his drawings. The drawing depicted police officers confiscating Fernando Villavicencio’s computers and documents after Villavicencio published an investigative report on government corruption. The caption read “Police and officials raid Fernando Villavicencio’s home and take away documentation of denunciations of corruption.” SUPERCOM imposed sanctions because the cartoon was “incorrect” and it “stigmatized” and “delegitimized” the government officials that carried out the raid. In addition, it imposed a $95,000 penalty on El Universo, the privately owned newspaper that published the cartoon.
The OCL also provides that sanctions imposed by SUPERCOM in no way limit the aggrieved party’s right to file criminal complaints in ordinary courts. Even before the OCL was adopted, Mr. Correa was already using criminal defamation suits to intimidate journalists and private media outlets.
In 2011, President Correa filed a criminal defamation suit against three board members of El Universo and Emilio Palacio, the director of its opinion section. The subject of the suit was an editorial column in which Palacio suggested that Correa could be prosecuted by his predecessor for crimes against humanity for ordering a police raid on a civilian hospital. The defendants were sentenced to three years in prison and ordered to pay $40 million in damages to Mr. Correa. The four defendants and the newspaper would later be pardoned by the president, placing the case outside of the jurisdiction of the Inter-American Court of Human Rights.
Correa’s efforts to muzzle critics have had a chilling effect on freedom of expression. The constant threat of criminal and civil penalties has turned Ecuadorian journalism into a purely descriptive exercise. For many journalists, self-censorship is steadily becoming the only means of self-preservation.
The new amendments will likely extend the government’s control over the media. Critics warn they may be used to adopt new regulations for online publications and social media platforms. Instead of insulating freedom of expression from government intrusion, categorizing communications as a public service places a duty on the government to regulate and monitor the exercise of a fundamental right.
“Perfectly constitutional” but not perfectly democratic
Mr. Correa defended the amendments as “perfectly constitutional, democratic, and an effort to increase rights.”
He is technically correct because the Constitutional Court, which he has appointed, decided in its November 6th ruling that the proposed changes were constitutional amendments not constitutional reforms, thus requiring only two-thirds legislative approval; his party’s rubberstamp legislature approved them by the required two-thirds majority; and the process was democratic because the legislature and the executive were elected through popular elections.
However, Mr. Correa is wrong about how democratic the changes are. In a democracy, the power of the majority is not absolute. Constitutions place fundamental rights outside the will of the majority to protect minorities.
That is precisely why Ecuador’s Constitution makes a distinction between constitutional amendments and constitutional reforms. Amendments are constitutional changes that do not amount to additional constraints on fundamental rights or democratic guarantees. As such, they can be adopted by two-thirds of the legislature, unlike reforms, which require approval by popular referendum.
Critics have argued that the Constitutional Court erred when it decided that the proposed changes were amendments. Amendments that open the door to further disproportionate use of police force to suppress public demonstrations and establish new regulations over the internet and the media are reforms, not mere amendments, that go to the heart of a constitution’s purpose of protecting political and civil rights. In allowing the reform to proceed, the Constitutional Court violated the very constitution it was created to protect.
Gustavo Alvira Gomez is a former Cyrus R. Vance Center for International Justice Human Rights Fellow. He is a lawyer with a background in international human rights and comparative law.
