Constitutional Change in Ecuador: Improving Democratic Accountability—and Constraining a Rival
Ecuadorians approved several constitutional amendments that in combination boost horizontal accountability and democracy in after ten years of erosion. Nevertheless, the relative ease with which President Lenín Moreno (and ex-President Rafael Correa before him) was able to propose and pass the reforms suggests that more constitutional modifications are likely in the future—including the possibility of rolling back these new reforms – writes John Polga-Hecimovich.
On 4 February 2018, Ecuadorians voted overwhelmingly in favor of a constitutional referendum re-imposing presidential and legislative term limits, increasing penalties for government officials convicted of corruption, and weakening an executive agency that had usurped bureaucratic appointment functions from the legislature. The passage of these measures should help strengthen liberal democracy and accountability in the country and represents a victory for President Lenín Moreno in his power struggle against predecessor and co-partisan Rafael Correa. The most politically contentious item on the seven-question ballot asked whether presidential term limits should be reinstated into the Constitution – a constraint included in the original 2008 Constitution and removed in December 2015 under Correa. Voter endorsement of the reinstatement of term limits marks a turn away from the regional trend towards lifting limits on presidential re-election, including through judicial decisions, and ostensibly precludes Correa from running for a fourth term in 2021. However, given the country’s volatile constitutional history and proclivity for amending the constitution via both the legislature and national referendum, the permanence of the changes is uncertain.
Constitutional Changes 2007-2017
Moreno’s plebiscite is a direct response to constitutional changes under ex-president Rafael Correa. Correa is arguably the most important Ecuadorian politician since the country’s return to democracy in 1979 and the longest-serving president (2007-2017) in the country’s history. His November 2006 electoral victory and subsequent Constituent Assembly helped accelerate the collapse of the political party system, centralized political power in the office of the presidency, and formed the basis of economic and social ‘post-neoliberalism’. Through constitutional and institutional reforms, Correa’s left wing ‘Citizen’s Revolution’ sought to strengthen the state, increase its regulatory and economic planning power, and broaden its social influence as a means of promoting his government’s ambitious developmental plan of buen vivir (‘good living’). Bolstered by record international oil prices, Ecuador’s principal source of export earnings, Correa made important investments in education, health care, and infrastructure and enjoyed record public approval ratings.
Voter endorsement of the reinstatement of term limits marks a turn away from the regional trend towards lifting limits on presidential re-election.
The president used his popularity to enact far reaching constitutional changes. The first of these was the promulgation of the 2008 Constitution, the twentieth in the country’s history. The document created a strong, interventionist state that uses planning as a lynchpin in the national economy and public management system, while limiting horizontal accountability of the executive. According to the Comparative Constitutions Project, this sprawling ‘Montecristi’ Constitution (named after the city where the Constituent Assembly met) contains the highest number of constitutional rights of any of the 188 constitutions in the world, but also gives the executive the most power and endows the National Assembly with just the twenty-third weakest legislative powers. The president is only limited by a two-term limit restriction, one that Correa nonetheless circumvented in 2013 by arguing that his 2009 re-election under the new Constitution marked only his first election.
A constitutional amendment in 2015, during Correa's third term, lifted term limits beginning in 2021.
There were more changes, as Correa passed amendments in 2011 and 2015. In the first of these, on 7 May 2011, the president called a referendum on ten issues including reforms to the judicial system, limits to due process rights in criminal cases, limits to the freedom of the press, restrictions on animal cruelty, gambling, and illicit enrichment. All measures passed with more than 50% of the vote. Then during his third term, on 3 December 2015, the National Assembly passed a package of 16 constitutional modifications, including one lifting term limits on any public official, including the president, beginning in 2021. The change caused some anti-government protests by groups who believed that the vote represented an executive power grab, and Ecuador’s Freedom House democracy scores declined markedly. Nonetheless, as the 2017 elections approached, Correa endorsed Moreno, the country’s vice president from 2007 to 2013, as his successor and maintained that he was looking forward to spending the post-presidency in Belgium, his wife’s native state.
Moreno’s Ascendance and the 2018 Constitutional Referendum
Pre-election public appearances and statements revealed no hint of the political battle raging within the ruling Alianza PAIS (Country Alliance, AP) party between Moreno and Correa. However, in November 2017, one of Moreno’s closest advisors alleged on a leaked recording that Correa aspired for Moreno to lose the election. Correa purportedly provided no logistical or financial support for his chosen successor while saddling him with the deeply unpopular Jorge Glas as running mate. According to this advisor, given the high political polarization and an adverse economic situation in the country, Correa preferred for AP to lose the presidential election and instead govern through its control of the vast state bureaucracy and National Assembly—with Correa returning to the presidency in 2021. Yet by eking out a narrow victory (51.6% against Guillermo Lasso’s 48.8%), Moreno upended this plan.
It has since been a back-and-forth, with the dispute dividing the majority-party AP between morenista and correista factions. Shortly after taking office in May 2017, Moreno stripped his vice president, Glas, of all responsibilities. Glas, a close ally of the ex-president and Correa’s vice president from 2013-2017, was accused of taking $13.5 million dollars in bribes from the Brazilian construction firm Odebrecht. As part of Moreno’s public campaign against corruption, Glas was convicted, sentenced to six years in prison, and impeached by the legislature. Then, in September, Moreno announced the possibility of a national plebiscite to ‘guarantee a fully functioning democracy, without caudillismos and with transparent institutions ensuring public control’. In response, Correa quickly returned to Ecuador from Belgium in order to campaign against the referendum, and he and 28 legislative deputies formally broke from the party he founded to form what they call the ‘Citizen’s Revolution Party’.
Instead of trying to push them through established institutional channels staffed with correistas, like the National Assembly or the courts, Moreno turned directly to the public to give the measures legality and public legitimacy.
The plebiscite, composed of five referendum questions concerning constitutional alterations as well as two ‘popular consult’ questions that modify statutes, was a smart gambit. Instead of trying to push them through established institutional channels staffed with correistas, like the National Assembly or the courts, Moreno turned directly to the public to give the measures legality and public legitimacy. In terms of content, the referenda questions reverse unpopular constitutional changes taken during Correa’s rule, while the two accompanying popular consult items are ‘feel good’ topics that enjoy broad popular support. The measures not only prevent Correa from running for president again and weaken some of his policies but the high support for them gave Moreno a public relations victory over his predecessor as well.
The constitutional amendments limit all elected officials, including the president and parliamentarians, to a single re-election, whether consecutive or not; prohibit any citizen with a criminal record for embezzlement, illicit enrichment, bribery or money laundering from running for political office or serving as a public official; change the organization and function of the Consejo de Participación Ciudadana y Control Social (Council of Citizen Participation and Social Control, CPCCS), an unelected executive body that has usurped authority from the National Assembly; eliminate the statute of limitations for sexual offenses committed against children; and outlaw mining in environmentally sensitive, urban, and historic areas. The two reforms under the public consult rescind the Ley de Plusvalía (Capital Gains Tax Law), a law intended to prevent land speculation that applies capital gains tax rates as high as 75% to real estate sales, and limit where oil extraction is permitted in Yasuní National Park.
The changes took effect immediately, despite controversially lacking any pronouncement from the Constitutional Court.
The changes took effect immediately, despite controversially lacking any pronouncement from the Constitutional Court (Tribunal Constitucional). This Court should have approved the constitutionality of the proposed referendum and public consult questions when Moreno first approved the process in late 2017. However, the Court exceeded its 20-day window to issue a ruling, after which Moreno convened the vote via two executive decrees in late November 2017.
Implications for democracy
Moreno’s focus on the popular valence issues of corruption and re-election –about which citizens will usually share a common preference regardless of ideology– has unquestionably weakened his political rivals within AP. However, by re-imposing presidential and legislative term limits, increasing penalties for government officials convicted of corruption, and weakening an executive agency that had usurped bureaucratic appointment functions from the legislature, these measures should also help strengthen democracy and accountability.
The presidential term limit change is particularly important. As John Carey has pointed out, there are at least three arguments in favor of presidential re-election: it may enhance responsiveness and vertical accountability by giving voters the opportunity to punish or reward politicians at the ballot box; it could increase choice and the retention of a competent or popular incumbent, and; it lengthens the president’s time horizon to pursue policy. Of course, the danger with immediate and unlimited re-election is that politicians could abuse their powers to ensure their continuation in office. In a 2018 report on the subject, the Venice Commission argued that, ‘in presidential and semi-presidential systems, term-limits on the office of the President… are a check against the danger of abuse of power by the head of the executive branch. As such, they pursue the legitimate aims to protect human rights, democracy and the rule of law’. Given these conflicting interpretations, the possibility of only limited presidential re-election borrows advantages from both extremes: it allows for a degree of political responsiveness to voters, possible retention of a popular incumbent, and a longer time horizon, while also establishing a clear check on presidential power. Interestingly, voter endorsement of this question represents a turn away from the regional trend towards extending presidential term limits.
The constitutional reforms should help strengthen democracy and accountability.
Likewise, reorganizing the CPCCS is an unequivocally good step for Ecuadorian democracy. The administrative body was created by the 2008 Constitution as a public entity responsible for judicial and non-partisan political appointments, including the attorney general, comptroller general, banking superintendent, and media regulator. Furthermore, it was designed to act as an anti-corruption oversight body. Nonetheless, under Correa, its directorate was comprised of officials who had previously served in his administrations and opposition politicians and independent analysts accused the body of being a politicized extension of the president’s office. Its reorganization, which includes selecting new members and reviewing past judicial confirmations, is likely to reflect greater agency autonomy and should represent an improvement to the democratic environment.
There is no guarantee that these reforms, even the ones that most affect democratic quality, will be long lasting. Ecuador has undergone a great deal of constitutional reform over the past 190 years, including new constitutions in 1967, 1978, 1998, and 2008, and constant amendment and reform processes. The relative ease with which Moreno (and Correa before him) was able to propose and pass referendum and national consult questions suggests that more constitutional modifications are likely in the future—including the possibility of rolling back these new reforms.
To make possible reversals less likely, Moreno would have had to designate these changes as ‘partial constitutional reforms’.
To make possible reversals less likely, Moreno would have had to designate these changes as ‘partial constitutional reforms’, a substantively different qualification from constitutional amendments and one whose distinction must first be decided by the Constitutional Court. Whereas amendments may be approved either by referendum or legislative vote, partial reforms require a higher threshold for adoption. Partial reforms must first pass through the National Assembly before their submission for approval through popular referendum.
The fact that Moreno did not pursue this option perhaps owes to his relative weakness in parliament and the reality that there were no guarantees that the ruling party would support him over Correa in a floor vote. In may also reflect his concern with expediency at changing the status quo over the durability of those changes. Still, regardless of their long-term viability, these amendments represent a boost to horizontal accountability and democracy in Ecuador after ten years of erosion.
John Polga-Hecimovich is an Assistant Professor of Political Science at the US Naval Academy and a specialist in political institutions and Latin America. The views expressed in this article are solely those of the author and do not represent the views of or endorsement by the Naval Academy, the Department of the Navy, the Department of Defense, or the US government.