The Key Constitutional Reforms Approved In Ecuador

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The project proposed in June 2014 by Alianza País, the political party of President Rafael Correa, originally included 17 amendments to Ecuador’s Constitution, which was adopted in 2008 by the same Government. After passing through the Constitutional Court, 16 proposed changes remained.

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Despite massive protests and calls for the reforms to be decided via referendum, on December 3, 2015, the amendments were approved by the National Assembly, where the ruling party has an absolute majority.

The package of reforms would directly affect the rights and powers of citizens and autonomous governments. The following is an analysis of the main amendments and their possible impact.

Term limits: Allow all elected officials to be reelected indefinitely (Article 114)
Elected officials may be reelected. Elected officials who apply for a different office must resign from their current position.

The President of the Republic will remain in office for four years and may be reelected. Although the Government presents this as an advantageous reform to extend the rights of those who cannot currently run for office, having already been re-elected once, the initiative arose from Rafael Correa’s initial wish to stay in power.

In an attempt to dampen the protests which followed the announcement of this reform, a provision has since been adopted which prevents Correa from running in the 2017 election.

This provision does not change the underlying problem of indefinite re-election in Ecuador but only postpones, for strategic purposes, Rafael Correa’s plans to remain in power.

A reduction of the minimum age for presidential candidates from 35 to 30 years (Article 142)
The Government presents this reform as a way to “promote greater participation and inclusion of young people in the arena of public power.”

This reform reduces the minimum age for presidential candidates, but does not change the age limit or other requirements for lower ranking official offices. This absurd constitutional amendment can only be explained by the political machinations of the ruling party that proposed it.

One possible direct beneficiary of this reform is the President of the Assembly, Gabriela Rivadeneira, who is 32 and a potential presidential candidate. Furthermore, lowering the minimum age for presidential candidates could be a strategy to capture the sympathies of the youth.

State-guaranteed payment of military and police retirement pensions (Article 370)
This phrase is to be added to Article 370 of the current Constitution and elevates to a constitutional precept the legal obligation which applies to the special social security status assigned to the military and police.

This reform marks an important difference between police and military pensions and those of other citizens. Social security for military and police is embodied in the Constitution, while IESS pensions are only guaranteed by law.

Public sector workers remain outside the labor code (Article 229)
The reform eliminates the existing provision that public sector workers are subject to the Labor Code.

The Government’s justification for this reform is to eliminate discrimination between blue and white collar public sector workers, who are currently subject to different laws.

With this reform, all public sector employees are to be governed by a single law: the Organic Law of Public Service.

The Government claims that this reform grants blue collar workers their rights. But labor leaders say the opposite. The President of the Federation of Civil Servants of Ecuador, Miguel García, stated “we cannot allow this to happen because the workers remaining within the Labor Code lose their benefits and security, such as the formation of unions and thus the signing of collective bargaining agreements; and the right to profits. Also they would be exposed to the potential purchase of mandatory resignations.”

For Diego Cano, leader of the Trade Union of the Ecuadorian Public Sector, the amendments mean that workers must comply with public sector pay scales and, without collective bargaining, will be unable to negotiate their salaries.

“The worst of all is the inability to form unions, which would be totally eliminated.”

Additional functions for the armed forces: to support State security (Article 158)
The role of the armed forces will undergo a major change which, according to some interpretations, could lead to the political use of the military by the Government.

This reform replaces the existing second paragraph of Article 158 of the Constitution (“The fundamental mission of the armed forces is the defense of sovereignty and territorial integrity”) with the following: “The fundamental mission of the armed forces is the defense of sovereignty and territorial integrity and, additionally, to support the integral security of the State in accordance with the law.”

The former head of the Joint Command of the Armed Forces, Paco Moncayo, sees a clear intention with this reform, which “seeks to give missions to the military as part of a dark integral security which is undefined”.

On the pretext of improving State security, the Government could use the armed forces, now with constitutional support, as a shield against civil unrest.

Limitations to consultations with citizens and sectional bodies (Article 104)
Until now, decentralized autonomous governments, i.e. municipalities and prefectures, with the backing of 75% of their constituents, have had the power to call a referendum on any topic of interest to their jurisdiction.  With this reform, this possibility is limited to issues “that fall within the jurisdiction of the corresponding level of government.”

The fourth paragraph of the same article directly affects citizens’ ability to request a referendum. Currently, the Constitution provides that “citizens can request the convening of a referendum on any issue”. The Correa-ist reform eliminates the phrase “on any issue,” leaving only the possibility of requesting a referendum, without making clear whether there will be any restriction or embargo on the issues which arise.

Less power and control to the Comptroller (Article 211)
The Government’s proposal is to reduce the existing powers of the Comptroller General, which currently include “monitoring the use of state resources and the achievement of the objectives of State institutions.”

With this reform, the task of controlling “the achievement of the objectives of State institutions” is eliminated. The amendment has been rejected by the Comptroller Carlos Polit, who sees a clear reduction in in his office’s remit and announced that he would file a claim of unconstitutionality if the change is approved.

Less power to municipal governments (Articles 261 and 264)
The government intends to remove the powers of municipal governments to build and maintain infrastructure in education and health.

This reform sees the elimination of those powers currently contained in Section 264, leaving only that “local governments will have the following exclusive powers, without prejudice to others specified by law: to plan, build and maintain physical infrastructure and equipment in public spaces for social, cultural and sports development, according to the law.”

There has been little reaction to this reduction in powers from those most affected by it, Ecuador’s mayors. The exception is the Mayor of Guayaquil, Jaime Nebot, who has already announced that he will not comply with the reform, stating that his municipality will allocate funds to education and health sectors, in open rebellion against any decision of the Assembly.

Communication as a public service: increased control (Article 384)
The amendment to this article is procedural and substantive. The current Article 384 states that “the system of social communication will assure the exercise of rights of communication, information and freedom of expression and will strengthen citizen participation.”

Under the package of reforms, this statement is to be preceded by a paragraph: “Communication as a public service will be provided through public, private and community media.”

This intends to declare, on a constitutional level, communication as a public service, with the same status as water, electricity, etc., which are regulated and controlled by the State. In some cases, these services are outsourced, i.e. provided by a third party with the permission of the Government.

At stake is the loss of a fundamental human right, freedom of expression.

This basic element of communication could disappear in the face of regulations, prohibitions and even sanctions if the State detects violations to its established standards for what it considers proper communication.

At risk are, for example, the new technology platforms that have emerged in recent years as the bastions of free speech.

Declared communication as a public service and removed its concept of fundamental right from the Constitution, citizens who now exercise private communication would be accountable to a government interested in the standardizing information.

Autonomous regions: an offering with no deadline for compliance (Article 17 of the constitutional amendment request).
This reform eliminates the deadline of eight years for the establishment of autonomous regions, an old offering from the Government with which it has failed to comply. The amendment states that such autonomous regions will be established in an unspecified timeframe, leaving in limbo an issue that has caused much inconvenience and resistance in regions which the Government has failed to restructure as promised.

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