A Tale of Failed Reforms: the Ecuadorian Referendum and Political Fallout

Ecuadorians recently rejected eight proposed constitutional reforms that ostensibly aimed to address critical issues such as security, institutional reform, and environmental protection. President Lasso’s attempt to utilize this referendum as a mechanism to legitimate his government has therefore backfired halfway through his term. It remains to be seen what the political fallout will be, and whether other constitutional accountability mechanisms can resolve this government crisis - writes Andrés Martínez-Moscoso

Introduction

Around the world, referendum results reflect more than just public opinion on the issue at hand. This was seen in Colombia, where the peace deal lost, in the United Kingdom, when Brexit won, and in Chile, where the opportunity to replace Pinochet's constitution failed.

In the new model of constitutionalism, several Latin American presidents, including Hugo Chávez and Evo Morales, have used the referendum as a mechanism to legitimate their mandate. This is also the case in Ecuador, where referendums have been used by presidents of different ideologies to bring constitutional provisions in line with the president’s will, even if the referendum goes against the founding spirit of the constitution. Nevertheless, in some cases, referendums are more an approval (or disapproval) vote for the government, rather than a vote on the substance of the question(s) being asked.

On 5 February 2023, Ecuadorians went to the polls to decide on eight measures in three main areas: security, institutional reform, and the environment. But the citizens turned their backs on the government, even though the questions concerned fundamental issues. Despite opinion polls showing a comfortable margin of approval for most questions in advance of the referendum, the final result of the referendum and the concurrent local elections constituted a rejection of the government of Guillermo Lasso Mendoza, who was using the referendum as an attempt to buoy his struggling presidency in the face of increased security and socio-economic concerns. This episode continues the trend in the last decade of Ecuadorian presidents using referendums to make constitutional reforms, especially relating to the justice system and elections of control authorities. And, in all cases they used other topics (such as environmental issues) to camouflage the real content.

Process of constitutional reform

The current Ecuadorian Constitution is the twentieth text since independence in 1830: it is a long and generous constitution with  a wide catalog of rights. Constitutional reform in Ecuador is classified as either an ‘amendment’ or ‘partial reform’ of the constitution, each with its own distinct procedure. Neither type of reform can restrict fundamental rights nor the process for amending the constitution. However, under Article 441, ‘amendments’ also cannot modify the fundamental structure of the constitution nor change the nature and constituent elements of the state. Amendments are approved via referendum if initiated by the President or by a citizens’ initiative, or by parliament if proposed in parliament. Partial reforms, on the other hand, must always be passed by parliament and undergo a referendum regardless of the initiator, as stipulated under Article 442.  

The Constitutional Court plays a key role of control and interpretation in the constitutional arena.

The Constitutional Court therefore plays a key role of control and interpretation in the constitutional arena. So, in a referendum process it acts at two different moments. First, when it studies the content of the referendum question and determines the appropriate way forward: amendment, partial reform, or a new constituent assembly. And then, it controls the content of the question to ensure its compliance with the Constitution.

For this referendum in Ecuador, the Constitutional Court concluded in November 2022 the process of qualifying the eight questions (Ruling Nos. 4-22-RC/22A and 6-22-RC/22A). Only one polemic question, about the possible collaboration of the army with police to improve internal security, did not pass constitutional control because the Constitutional Court ruled it a partial reform requiring a different amendment process.

The ‘politically correct’ reforms that failed to win support

The current Ecuadorian president, Guillermo Lasso Mendoza, started his term in office in 2021 during the Covid-19 pandemic. His top priority was to vaccinate the population, which he achieved in an ambitious timeframe, floating on an approval rating of 73.5 per cent. However, his popularity declined dramatically due to internal conflicts with the National Assembly, economic issues such as increased taxes, and reports of low quality public services. In an attempt to improve his popularity and gain breathing room for his political agenda, the President adopted the same strategy of former presidents Correa and Moreno by introducing reforms on two of the most important issues in the country: security (Guayaquil, the ‘second city’ of Ecuador, is one of the most dangerous in Latin America), and institutional reform topics (targeting the perceived corruption of political parties, assembly members, and judges). And to appeal to young voters, Lasso included two questions about the environment, using the same strategy of his predecessors Correa, who included a ban on bullfighting and other blood sports in a 2011 referendum, and Moreno, who proposed increasing the protected area of an emblematic National Park, Yasuní, in 2018. The Constitutional Court qualified eight questions, divided into three different topics: security, institutionalism, and the environment.

The ‘warhorse’ of Lasso’s electoral campaign was to amend the Constitution to allow extradition of nationals in cases of transnational organized crime . . .

The ‘warhorse’ of Lasso’s electoral campaign was to amend the Constitution to allow extradition of nationals in cases of transnational organized crime as part of his campaign to combat drug trafficking. The other question in this ‘security’ block was to promote the independence of the Attorney General’s office through creating a Prosecutorial/Fiscal Council that would evaluate, train, promote, and sanction prosecutors, taking over this role from the Judicial Council.

The second block of questions, on “institutionalism”, was divided into two items: reducing the number of seats in the National Assembly and changing the method of election of the control institutions.

Citizens hold a very negative perception of politicians and the parliament, so this initiative was an opportunity for reform. The first suggestion was to reduce the number of members of parliament (currently 137) to 100. The second was to tighten the registration requirements for political movements, obliging them to have a minimum number of members equivalent to 1.5 per cent of the electoral registry in their jurisdiction and to keep a registry of their members available for auditing by the National Electoral Council. Lasso maintained that the reforms could improve the quality of Ecuadorian democracy, but the opposition interpreted the move as potentially reducing representative democracy, especially in several provinces where the number of deputies would decrease.

Another proposal in the second block would have changed the rules for the selection of members of accountability institutions, currently entrusted to the Council of Citizen Participation and Social Control (an institution created by the 2008 Constitution as part of the "fifth branch of the state"). This directly elected Council, among other things, plays a key role in the appointment of 77 authorities and the heads of a variety of state accountability mechanisms, including the state prosecutor, the attorney general, the human rights ombudsman, and comptroller general. The reform intended to return this power of appointment to the National Assembly. The other intended modification was to change the election method of the representatives of the Council for Citizen Participation and Social Control to indirect elections that would be controlled by the National Assembly. In both cases, the opposition, academics and unions contended that the President wanted more political control by bypassing the constitutional mechanism to intervene in other state powers.

The environmental reforms targeted young voters (in Ecuador, voting is mandatory for those aged 18-65, but optional for people aged 16-18). There were two environmental questions on the ballot: the first was a question on whether to change the designation of water protection areas to elevate their status under the National System of Protected Areas managed by the state. The last question on the ballot was whether to economically compensate individuals, communities, and Indigenous peoples for their support in generating revenue from natural resources. These proposals were interpreted as ‘decorations’ to make the referendum more attractive, and some social movements criticized it as a neoliberal form of commodifying environmental protection.

Divided positions during the campaign

To promote the reforms, the government decided to use a ‘fresh’ campaign and replaced their regular spokesman with a young constitutional attorney named Karen Sichel. The focus was on engaging in debates with constitutional arguments and ideas. Lasso put particular emphasis on his star question, the topic of extradition. The 2023 referendum coincided with local elections for 5656 local authorities, and Lasso’s center-right political party, CREO, was facing challenges at the time, so the opposition used this opportunity to launch a campaign against the President’s proposed constitutional reforms.

Social movements, political parties, Indigenous peoples, and unions, among others, called for a vote against Lasso’s proposal . . .

Social movements (such as feminists and ecologists), political parties (especially UNES, former president Correa’s political movement), Indigenous peoples, and unions, among others, called for a vote against Lasso’s proposal. They characterized their vote as a punishment against Lasso’s government and agenda. Rather than engaging in debates on the reforms and their content, the official spokesman responded by trying to explain each question, and used rhetoric that presented opposition to the official position as being on the ‘bad side of the story’, insinuating that critics might have ties to drug trafficking or the mafia. This enraged the public, who expressed their dissatisfaction with Lasso and his proposed reforms at the polls.

Each question in the referendum was defeated. In the aftermath, the President’s government team resigned, and Guillermo Lasso accepted defeat. He called on the political parties and social movements to initiate a new agreement for the benefit of the country. However, immediately afterwards digital media outlets published a report on corruption in public companies, with the main suspects being the President’s brothers-in-law and very close associates of the regime. Currently, the National Assembly has initiated impeachment proceedings that must pass two stages: approval from the Constitutional Court and then a legislative vote requiring approval by two-thirds of the National Assembly.

Conclusion

The Ecuadorian Constitution designed the referendum as a mechanism of direct democracy, while reforms of the Constitution have their own process. But in fact, presidents have used it in various ways, such as to legitimate their government or as a political thermometer to measure their popularity. It is clear that Guillermo Lasso tried to use the same logic, but it was probably mistimed: if he had held the referendum after the Covid-19 vaccination campaign, the referendum might have had a better chance of passing. Politicians, social movements, and the rest of the Ecuadorian citizens saw the referendum results as a plebiscite on Lasso’s government, which is the reason why some called for his resignation.

The current scenario is unclear, but the 2008 Constitution provides different ways to hold the government accountable, including impeachment, dissolution of parliament, and recall. There is, therefore, hope that the constitutional mechanisms themselves could resolve this government crisis.

Professor Andrés Martínez-Moscoso is a professor of Constitutional Law at Universidad San Francisco de Quito, Ecuador. He holds a PhD in Constitutional Law from Alicante University, Spain. He is a member of the Ecuadorian chapter of the Ibero-American Institute of Constitutional Law.

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Suggested citation: Andrés Martínez-Moscoso, ‘A Tale of Failed Reforms: the Ecuadorian Referendum and Political Fallout’, ConstitutionNet, International IDEA, 28 March 2023, https://constitutionnet.org/news/failed-reforms-ecuadorian-referendum

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