Chronicle of an Amendment Foretold: eliminating presidential term limits in Ecuador

On 3 December 2015 the National Assembly of Ecuador (Congress), with a vote of 100 to eight, approved a package of 16 constitutional amendments that touch on a wide variety of controversial subjects, including eliminating presidential term limits. The amendments were voted in the 137-seat National Assembly, in which Correa’s Alianza Pais or PAIS party has a two-thirds majority. The amendments were approved, but raised several questions about the ability of the Ecuadorian political institutions to protect term limits as a cornerstone of a constitutional democracy. 

Writing the Constitution, changing the Constitution

Correa, a US-educated economist who campaigned on a platform of socialism for the 21^st century, was elected president in 2006 on a progressive leftist political agenda broadly supported by social movements and an electorate disappointed in traditional party politics. Correa criticized the neoliberal policies of prior decades promising instead to reorient the country toward alternative models of development. He formed PAIS, a new political coalition that incorporated the promise of constitutional reform that would change the political system through a broad participatory process. The new constitution was to be the product of a “citizens’ revolution,” as Correa called his participatory project.

During the past eight years, under Rafael Correa’s government, Ecuadorians were asked to vote more than five times in order to be part of the citizens’ revolution. Either to approve a new constitution, change it, or elect the politicians who will do so, Correa provided the Ecuadorian people with the most important tool to make a democratic revolution real: their vote. Since 2006, the citizens’ revolution won every election and referendum with vast majorities. People were given a powerful and decisive voice after the economic crisis in the 2000s, when the Constitution of 1998 sank into a largely dysfunctional political system and vicious cycle of political instability.

In 2007, over 80 percent of the Ecuadorian electorate approved to convoke a Constituent Assembly, and a few months later, PAIS won a majority of seats in the Assembly elections. One year later, 64 percent of the electorate approved the 444 articles of the new Constitution of 2008 in a referendum.

The new Constitution was considered to be socially transformative  and expectations ran high among the supporters of the government. Still, only three years after its approval, President Correa sought various amendments to the Constitution through 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. In Ecuador, voting is mandatory, and Ecuadorians approved the reforms in 2011 by using a ballot under the title of “Referendum and Popular Consultation”. Several opposition leaders mourned the expansion of direct democracy as a means to consolidate Correa’s populist and autocratic style of government. They argued that the Constitution of 2008 was designed to increase the capacity of the electorate to limit presidential powers not to diminish it.

President Correa, however, was not the first president to make use of constitutional referendums in Ecuador. In 1997, a referendum was held in the context of a severe constitutional crisis to legitimate the decision of Congress to oust President Bucaram and declare Fabian Alarcon, as the new President. Ecuadorians also voted on such other complex issues as the de-politization of the judicial system. Likewise, many other countries of Latin America have introduced referendums into their legislation since the 1990s.

In 2014, three years after the first amendments to the 2008 Constitution were approved, PAIS announced again that the party was considering a constitutional amendment to allow the reelection of President Correa for his third term in 2017. It was clear that the party decided it was time to make a new adjustment to the supreme norm to favour Correa, since it provided that the president could serve only two consecutive terms.

Shortly after these declarations were made, PAIS presented a proposal to the National Assembly in order to amend the Constitution in 17 different areas, including the elimination of presidential term limits, granting the Armed Forces the power to provide support for the integral security of the State, and declaring communication a public service, among others. 

The draft was submitted to the Constitutional Court to decide the appropriate method to process the amendments proposed by PAIS. The question here was, referendum or extraordinary legislative process? It was expected that all these reforms were going to be decided directly by the people. After all, they have been the protagonists of every single electoral victory of the citizens’ revolution since the very beginning of Correa’s government.

Amendments vs. Reforms

The Ecuadorian Constitution establishes a system, known as a constitutional ‘padlock’, to reform its content. The padlock consists of procedures for constitutional amendment and either partial or total constitutional reform.

The padlock locks the content of the Constitution by regulating the difference between amendments and reforms (substantive), and by establishing the procedures for each of them (procedural). Amendments and reforms may be approved or denied by referendum, by a legislative process, or by a combination of the two. The most radical possibility is a total reform of the Constitution, which means writing a new one in a Constituent Assembly. In all these cases, the president has the power to propose either amendment, or partial or total reforms.

The Constitution, however, also sets parameters to differentiate matters for amendment from matters for partial reforms. Article 441 establishes that an amendment may not be used to a) alter the fundamental structure of the Constitution; b) alter the nature and constituent elements of the State; c) set constraints on constitutional rights; and d) change the procedure for reforming the Constitution. Article 442, on the other hand, ascertains that a partial reform may not be used to a) set constraints on rights or guarantees, and b) change the procedure for amending or reforming the Constitution.

Amendments may be approved either by a referendum, when they are proposed by the president or by the citizenry, or through a legislative process, when they are proposed by members of the Assembly. Reforms, in contrast, always have to be processed through a legislative process at the National Assembly first, and then approved in a national referendum.

The Constitutional Court, according to Article 443, had to establish which of these procedures pertained to each of the 17 proposed constitutional modifications. In the case of the elimination of the presidential term limits, the question was whether it requires an amendment or a partial reform? If it was considered an amendment, since it was proposed by the legislators, it would have to be approved by the National Assembly. If it was considered a partial reform, then it would have to be approved both by the Assembly and in a national referendum.

Several opposition movements argued that eliminating presidential term limits was altering the ‘nature and constituent elements of the State’ and consequently, it should be treated as a partial reform and not as an amendment. PAIS, on the other hand rejected this argument on the basis that elections and not presidential term limits were a constituent element of the State structure, and consequently, eliminating them was only an amendment to the Constitution and not a partial reform. The lack of presidential term limits per se, they argued, will not automatically perpetuate presidential power, as Presidents will still have to win elections.

To limit or not to limit

In the case of Ecuador, concentration of executive power has already been severely criticized due to the decisive vote of the President in the nomination of independent state institutions; for example, the nomination of members of the Constitutional Court (Art. 434), and for having a representative in the Judicial Council (Art. 179). Looking at similar cases in the region, the Colombian Constitutional Court took a different approach when denying a request to call for a constitutional referendum to allow the re-election of Alvaro Uribe in 2010. The Court established that limiting the reelection of an elected authority amounts to limiting power. Unlimited power may blur divisions between branches of government. Moreover, if there are no term limits, alternation of power is affected and “the voice of the people cannot be appropriated by one group of citizens”.

Despite the arguments presented by opposition groups, the Constitutional Court of Ecuador approved the petition of the Assembly to treat 16 of the 17 proposals, including abolishing presidential term limits, as ‘amendments’ - thus excluding the possibility of a referendum. After that, the National Assembly initiated a ‘dialogue’ in which PAIS legislators travelled around the country to increase public awareness of the content of the reforms. The dialogue, according to PAIS, took place in every single province of Ecuador and more than 124 sub-commissions had meetings with grassroots organizations.

However, by June 2015 widespread protests broke out across the country, mainly due to Correa’s plans to increase taxes, that ultimately led to demands for a ‘real dialogue’ and Correa’s resignation. Meanwhile, Correa reiterated that he stood ready to run again but only if no other PAIS candidate emerged to replace him. However, in November 2015, Correa announced that he will not run for re-election, in an effort to silence his critics who accused him of seeking to extend his time in power, and confident that another candidate from his party can win in the 2017 general elections.

On 3 December 2015 the amendments were approved by the National Assembly in the midst of social confrontation and divisive positions about their social and constitutional legitimacy. Following Correa’s declaration, the legislators included a transitional provision that prevents President Correa from seeking a third term in 2017.

The lessons at the end of the road (or until the next amendment proposals)

The danger to democracy of eliminating presidential term limits was obfuscated by the regime using electoral arguments that claimed that it is the people (not the Constitution), who should implement presidential term limits, when they decide whether or not to re-elect a president. Despite this apparent ‘transfer’ of power to the people, and past experiences of heavily relying on their voters, this time the mandatory constitutional referendum was avoided by PAIS. Why? Did PAIS consider that there was a chance of losing the referendum?

First, when it comes to deciding whether referendums are the appropriate mechanism to overturn term limits, there are several intrinsic limitations to consider, including the potential manipulation of this mechanism by authoritarian leaders. Referendums may be used as a populist device to stay in office rather than a mechanism of making politics more responsive.

In the case of Ecuador, the constitutional design providing for the mechanisms of direct democracy was meant to ensure the electorate the possibility to exercise a “bottom-up” vertical control. In search for an institutional solution to the accountability deficit of the presidential system of the country, the Constitution stipulated a mandatory referendum to reform the Constitution. In this context, the voter becomes a veto player of both the Executive and the Legislative Branch. Avoiding the mandatory referendum this time, translated into avoiding vertical control ‘from below.’

In this situation, it fell to the Constitutional Court that could set a precedent and rule in favor of vertical control. However, the Court ended up approving the decision already made by PAIS, as many other times before. For example, in 2013 the Court ratified the constitutionality of the Organic Law on Communication that the regime used to systematically crack down on press freedom and create a climate of self-censorship. Events like this, led renowned academics and human rights activists to write a public letter in 2015 emphatically rejecting the nomination of Patricio Pazmiño, then president of the Constitutional Court, to be elected Justice of the Inter-American Court on Human Rights due to his ‘closeness’ to the regime and Correa.

Finally, the fact that Correa will be impeded from running for President does not change the fact that the amendments will allow his party to have more control over several institutions. Besides the removal of presidential term limits, there are three further outcomes of the reforms with important repercussions. First, the armed forces will be able to collaborate with the police on matters of state security. Second, the Executive strengthened its control over education and health policies, thus local governments will not be able to decide on these issues without the permission of the Executive. And third, communication is declared to be a public service. Opponents claim that declaring communication a public service opens the door for regulation of the media and the utilization of the press as a propaganda tool. Government officials argue that the proposed amendment will democratize the media, which they claim is controlled by private interests, and consequently will make journalism more accountable and accessible.

All in all, these three sets of policies have significant implications for the future of the country both short- and long-term. Security, communication, health and education are now more in the hands of the Executive than before. Instead of strengthening a system of checks and balances between the different branches and levels of government, the reforms represent institutional changes that undermine the possibility of limiting the Executive power.

The entire process of amending the constitution appears to be decided from the very beginning. Correa’s decision not to run for elections in 2017 seems to conceal a smart move to pave the way for winning elections in the future. At the end, Ecuador’s recent Constitutional amendment process resembles in a way the suspense novel of Gabriel García Marquez, Chronicles of a death foretold, where we get caught in the plot even though we already know its outcome from the very beginning.

Carolina Silva-Portero is a Science of Juridical Doctor Candidate (SJD) at Harvard Law School. Her doctoral dissertation project is a cross-national comparison of the relationship between constitution-making processes and ethno-national diversity in Latin America.