Ecuador’s constitutional term limit conundrum: what future for Article 144?

In 2008 Ecuador adopted its twentieth constitution. The adoption of the Constitution, a key promise of President Rafael Correa’s ‘citizen’s revolution’ was a historic development, ushering in hopes of a better socio-economic and political order following a decade of political instability that had threatened to consume the Ecuadorian state.

Hailed as progressive due to many innovative provisions it contained, one of the key reforms of the Constitution is Article 144, which prescribes not only that the President shall remain in office for four years, but also that he or she can be ‘re-elected only once.’ In addition to the executive, it also imposed term limits for all other elective offices. These provisions mark a departure from the 1998 Constitution. While the previous Constitution imposed a single term of four years for the President, it imposed no limits on the number of times other elected officials could be re-elected, thereby leaving open the possibility of indefinite or even life terms in some cases. Article 144 can therefore be seen as an attempt by constitution makers in 2008 to democratize Ecuadorian politics by opening up space for political alternation at all levels of political office. What has been the record since the introduction of term limits?

Thus far, the implementation of Article 144 has not been smooth. In fact, in the same year of its adoption, Ecuador’s Parliament, it may be recalled, gave a different interpretation to the term limit clause  when  it was asked to bar President Correa, who had been elected in 2006 from standing for re-election in the 2009 elections. It agreed with Correa’s contention that Article 144 could not be applied retroactively as his election in 2006 was under a different constitutional dispensation. This argument technically made his election bid in 2009 a first rather than a second, under the new dispensation

As the 2017 election year approaches a new threat to Article 144 is emerging, not from manipulation and malicious interpretation by politicians but rather from efforts from efforts to completely repeal it.  On 26 June the ruling PAIS Alliance Party of President Correa drew up a package of seventeen constitutional amendments proposing reformulations of certain articles that would effectively abolish constitutional term limits on all elective offices, amendments which they stand to benefit from. Among the most controversial are proposals to delete the phrase ‘only once’ from Article 144 which regulates term limits for the President. Such a proposal, if it succeeds, will effectively repeal presidential term limits. This push came just one month after President Correa, in his 24 May annual address to the National Assembly, announced that he will support a proposal to amend the Constitution in order to allow indefinite reelection for all elected authorities.

Across Latin America, the push by incumbents to manipulate or abolish term limits provisions to extend their stay in power—a phenomenon that arisen in Africa  in recent decades—is not unique to Ecuador. As International IDEA’s Daniel Zovatto demonstrates in this piece, Venezuela, Bolivia and Nicaragua are recent examples, following earlier successful subversions of term limits by Argentina’s Menem, Brazil’s Cardoso, Colombia’s Uribe,  and Peru’s Fujimori, just to name a few. ‘Re-election fever’, he argues, without counting other questionable attempts by ex-presidents to return to power, is gripping Latin America at the expense of the democratic gains of the last few decades.

Expectedly, this development has divided opinion across Ecuador, fuelling speculation on what Correa’s motives even as he has hinted that he might not seek re-election.

Despite suffering some electoral losses at the 2014 March local elections, due in part to conflicts within the party, the President Correa still enjoys massive popularity among ordinary Ecuadorians, having kept most of his campaign promises, especially in such areas as infrastructure development, health care and education reform. According to official data, the country’s poverty rate has also seen a 10 percent decrease—from 37 percent since his coming to power in 2007 to 27 percent in 2012.This record is certainly appealing to ordinary voters, who have not seen sustained development in decades, and has provided Correa with the necessary political capital to win another popular mandate should he seek re-election.

This, perhaps, is the biggest challenge that the opposition faces as it challenges the President’s proposed reforms. At the moment the battle ground has shifted to Ecuador’s Constitutional Court, which must now rule on the question of the modality of constitutional amendment: whether by a simple parliamentary procedure or via a referendum. How the Court will decide will depend on its interpretation of a number of constitutional articles dealing with constitutional amendments, not the least of which is Article 441 of the Constitution.

Article 441 provides the option  for  an amendment to be adopted by  two-thirds of the members of the National Assembly if the said amendment ‘does not  alter the fundamental  structure or  the nature and constituent elements of the state; does not set constraints on rights and guarantees and does not change the procedure for amending the Constitution.’  Is this the case with the proposed package of amendments?

The answer varies depending on what part of the political spectrum one stands.

According to Guillermo Lasso, leader of the Creating Opportunities (CREO) and a former presidential candidate who has also added his pen to the spate of amicus briefs being filed with the Court;  the proposed changes, which also seek to expand the role of the armed forces in domestic security operations and increase government's media oversight, —in so far as they will have the combined effect of restricting the separation of powers, reduce the political participation rights of minorities and give rise to hyper presidentialism— are ‘a substitution for the constitution’ and affect a ’a structural aspect of the state’. Put otherwise, the changes are so fundamental to the founding principles of the Constitution itself that it requires a constituent process involving a Constituent Assembly, and with the proposals ultimately submitted to popular referendum.

Correa and his supporters disagree.

‘We are conducting a comprehensive review, with democratic legitimacy, with the overwhelming support given to us by the Ecuadorian people and the 100 representatives who will fulfill their historic duty in the National Assembly, [and] without fear of what will be said, to make a few more amendments to the Constitution’, the President said  in a statement this August.

Contending that the proposed changes affect neither the basic structure of the state or its constituent elements, nor affect the rights provision of the Constitution or its amendment procedure, the PAIS Alliance Party have asked the Court to allow the vote to take place exclusively in the Assembly. Of the 137 seats in the Parliament, Correa’s party controls 100. This gives him more than the two-thirds vote required by Article 441 of the Constitution to pass an amendment should the Court rule in favor of a parliamentary vote.

The current term limits debate clearly portrays the challenge Ecuador’s emerging democracy still faces. However, it also offers context for reflection. In particular, it is safer perhaps not to assume that today’s democratic reformers, including the current opposition championing the argument that Correa’s effort is a threat to Ecuadorian democracy, will not brush aside the very democratic consensus they helped forge if and when their political fortunes change downstream. This is perhaps one of the greatest shortcomings of the 2008 Constituent Assembly process. In other words, it would—in hindsight—may have been better to specifically entrench the term limits rule of the Constitution as one of the document’s immutable principles or make it amendable only via a super majority vote in a referendum process.

Now, the fate of term limits and whatever consequences might flow from there depend on whatever interpretation the Constitutional Court—whose independence has lately become an issue of concern— gives to the provisions relevant to resolving this case. That reading, for the moment, can be anyone’s guess.