THE PINK DOLPHIN 28/07/2017
“The Pink Dolphin” is the official blog of SELVA-Vida Sin Fronteras
In 2008, Ecuador passed a new constitution, which promised radical protections of human rights and environmental rights. However, these protections were soon undermined by former President Rafael Correa’s overreach of power. Following the April presidential elections in Ecuador, World Policy Journal spoke with Maria Dolores Miño, a junior attorney at the Office of the Special Rapporteur of Freedom of Expression and the Inter-American Commission on Human Rights, a faculty member at the school of Law and Political Science of Universidad de las Américas-Quito, and executive director of Observatorio de Derechos y Justicia. She discussed the constitution, human rights, and the political system in Ecuador today.
WORLD POLICY JOURNAL: What political trends led to Ecuador’s adoption of a new constitution?
MARIA DOLORES MIÑO: This happened 10 years ago already, but I’d say that it was a mixture of political, social, and economic causes. If you see Ecuador’s history for the last 25 or 30 years, you would find a trend in which right-wing political parties were usually in office, and, especially during the 90s, these right-wing governments adopted economic policies focused on revitalization and modernization, as did other countries in the region. Those liberal political decisions, usually encouraged by the World Bank and similar international bodies, took their toll on the lives of people. I think our countries were not prepared for such extreme changes in economic policy. People couldn’t compete with international commercial agreements or privatization or the redaction of subsidies. People became economically impoverished.
In the case of Ecuador in particular, I’d say that the turning point was the bank crisis in 1999. There was a massive crisis in which most private banks went bankrupt, and the state had to pull them out of the bankruptcy. Many millions of people lost their savings, and they were forced into poverty. Millions of people were also forced to emigrate to other countries, especially Spain or Italy. That created an environment in which right-wing political parties and traditional political parties were no longer trusted by the people.
Around that time, many social movements started rising in Ecuador. Until the 1990s, there was no political participation from minority groups, such as Indigenous peoples or women or gay people. But that started to change; people realized that the state should not be just a mere instrument to comply with the law. In many cases, these laws were unfair or led to social injustice, so this created an environment in which people needed a change, needed new faces in government. By this time, the government of Rafael Correa came into office, and the first thing he did was to adopt a new constitution.
This was two-sided. On one side, the constitution’s proposal regarding human rights was and still is good. The idea that the state should not serve the interest of the law, but should serve the interest of the people and their fundamental rights, is beautiful and perfect. Previously, Ecuador defined itself as a state in which the rule of law applies—just that. Now, our constitution says that we are a state of derechos y justicia—a state of rights, human rights, and justice. Our constitution is one of the best in the region because it contains a comprehensive list of fundamental rights and mechanisms for insurance and protection. So that would be the bright side of the constitution.
The not-so-bright side is that it created the system in which the president has a lot of power. Here we call it “hyperpresidentialism,” or “hiperpresidencialismo,” because many people have said that this constitution was drafted with the idea of providing the president with such broad powers that eventually it would end with choking the judiciary and the congress, and that was exactly what has happened for the last 10 years. But people were so tired and frustrated and disappointed with former political groups that they went with anything that Correa said just because he was a fresh face. At first, he seemed to consider and give voice to minority groups, so the constitution was widely accepted and approved by referendum because people were looking for a state that truly cared about them instead of its own interest or the interest of banks or private companies.
WPJ: How does the political system address the rights of minorities, and is it successful?
MDM: Reading the constitution is actually more appealing if you’re a human rights activist because you would find a very, very broad protection for almost every minority group you can think of. It has comprehensive laws regarding migrant workers, women, pregnant women, children, elderly groups, people with catastrophic diseases—you name it. Our constitution was also very novel in the sense that it provided broad mechanisms for disability and the protection of rights. We have something that’s called the Extraordinary Protection Action, which is especially designed as a constitutional mechanism to protect people from violations to their rights when such violations are committed by courts. We have habeas corpus and access to information.
What happened along the way is that the demands of certain minority groups were not politically convenient anymore. Probably the most critical case is that of the Indigenous peoples. Indigenous peoples started by strongly supporting the Correa government—I’d say they were responsible for Correa’s initial win. But then, when Correa’s government adopted strong policies regarding oil exploitation in the Amazon, these Indigenous groups were baffled because they’d been promised protection of the environment where they lived. These groups started protesting and going on strike and paralyzing roads. Instead of going by what the constitution said, the government started to persecute them and harass them and imprison them. Whatever the constitution said regarding environmental rights and the rights of Indigenous peoples was irrelevant because the government had other political and economic interests.
Regarding women, the constitution said that women’s rights should be respected and ensured in accordance with international human rights legislation. A couple of years ago when the criminal code was being discussed in the assembly, we had debate about decriminalizing abortion in cases of rape. The president—not the congressmen or women—made a very strong statement and threat against his own assemblywomen, telling them, “If you vote in favor of abortion due to rape, you will be sanctioned and expelled from the party.”
The constitution is beautiful, but the actions that the government ultimately carried out were totally inconsistent with it. Additionally, during the past 10 years, Correa’s government took control of both local courts and the constitutional court. This has been very strongly criticized by NGOs and international human rights bodies. When citizens tried to activate judicial mechanisms to protect their rights, the executive had enough control of the judges that these processes became ineffective. They didn’t serve their purpose. Moreover, the government used the judiciary and the courts to persecute whoever tried to criticize or openly oppose it. We have a lot of cases, especially those regarding freedom of expression, in which the president himself activates the system in criminal courts to incarcerate opposition members or incarcerate or demand large sums of money from journalists that have criticized him.
The constitutional model right now is kind of hypocritical. The contents of the constitution have not been put into practice over the last 10 years. It’s important to stress that if you listen to the former president or any other public official, they say that Ecuador has the most protective constitution in terms of fundamental rights. It’s true. The thing is that the executive can control the judiciary in such a way that whatever mechanism the constitution and the law provided for protecting and ensuring fundamental rights is not effective in practice. At this point, many people don’t bother trying to go through the courts. For those of us that work in human rights, we encourage people to activate these mechanisms because you should force the courts to say something. If they say something bad, it gives us grounds internationally to make our case.
WPJ: Ecuador is the first country to enshrine the rights of nature in its constitution. Why did Ecuador take this approach to environmental rights, and what has been the impact of the laws?
MDM: I’d say that back in 2008, everything was a political maneuver from Correa’s newly elected government. He wanted to make everybody happy as a strategic move, because former governments didn’t care about minority rights or environmental rights or women’s rights or any people’s rights. When Correa came and said, “all your needs and all your claims will be listened to, and they will be enshrined in the constitution,” everybody was clapping and everybody was laughing, and everybody loved him. Very few of us didn’t buy it. I always thought this was very ambitious. For a state to make such huge promises from one day to another and expect to change 300 years of history with one constitution shows good intentions, but it’s not very likely in practice. What happened was exactly that: When he got enough power to control everything, he forgot about all these groups. He had promised a lot of things, and environmental rights suffered the same way. Ecuador’s constitution was very novel in enshrining the rights of nature, but when you, as a government, recognize the rights of a certain group—or toward nature, in this case—you automatically impose obligations on yourself. If nature has rights, that would mean that the state has obligations to protect and ensure those rights.
For instance, there were very strong impositions regarding oil exploitation in territories of uncontacted Indigenous peoples, and those norms eventually were not respected. Why? Because this is a state that, due to its changing policy, needed to spend a lot of money. Correa promised fancy schools? Fine, but you need a lot of money to run those fancy schools. You need to modernize the judiciary? Fine, but you need a lot of money for that, too. The only source of income Ecuador has is oil exploitation and oil exportation. Ultimately, whatever served the purpose of oil exploitation for the government to get more money to spend or steal—lately a lot of the money has been linked to corruption—was the course that was taken. What the constitution said on environmental rights didn’t matter. The same happened with mining companies. There are a lot of projects in mining that would seriously damage the environment of certain places in the Andean region, like rivers, which also belong to Indigenous communities of the Andean region of Ecuador. These communities have fought for nearly 10 years to stop these mining concessions to Chinese or American or Canadian companies. These people were fighting for something that was enshrined in the constitution—environmental rights and nature rights—and they were systematically harassed and imprisoned.
The Yasuní example is probably the most dramatic. The Bloc de Yasuní is an extension of territory in the Amazon region of Ecuador that has a lot of oil underneath it. A few years ago, this region was declared a special nature reserve, not only because of its biodiversity, but also because it is the home of Indigenous groups. These are groups of Indigenous peoples that have never been in contact with Western civilization. For that reason, they’re especially protected. In 2006, the Inter-American Commission issued precautionary measures to protect the Tagaeri and Taromenane people against whatever act of exploitation—such as oil exploitation—that would endanger their uncontacted status. In 2010, when oil exploitation and concessions toward Chinese companies began, the state made a whole new story in which these people didn’t exist because nobody had seen them. One minister actually said this: “These people—nobody has seen them.” They even drafted a new map in which the location of the Indigenous peoples was somewhere else, and 10 different versions of this map were drafted. The purpose was that the state wanted to exploit the oil in the Yasuní quarter, and they didn’t want to be responsible under the constitution and under international law. Now, people are saying that this is ethnocide, because if oil companies go to this territory, Indigenous, uncontacted groups will automatically and forcefully be contacted, and they will lose this status, and by losing this status, the group itself will not exist with this very particular characteristic of being uncontacted. There was even a case was brought before the International Criminal Court under genocide grounds. I don’t think this will be effective because genocide is a very specific kind of crime, but many people are saying this is ethnocide.
Again, it was very novel that nature’s rights are enshrined in the constitution, but I think it’s very rhetorical. As long as there aren’t effective mechanisms to ensure that those rights can be respected, if any state agency trespasses them, it’s as good as nothing.
WPJ: Where might there be room for improvement in Ecuador’s constitution?
WPJ: Are there people advocating for this change?
MDM: Yes, of course. On April 2, we elected a new president, and this was a very controversial election because it was the first time in 10 years that an opposition candidate could actually compete against Correa’s government. Correa’s government had won every single prior election by a landslide. Opposition parties did not have a chance. Ten years later, this other candidate came: Guillermo Lasso. Most of us didn’t love Lasso, because he belongs to a very conservative party. He doesn’t like gay rights, he doesn’t like sexual/reproductive rights. He wouldn’t be our first choice, but at this point, he was what got Correa out of government. In the end, we had a very controversial election process. Many people allege that fraud had been committed so that the official candidate could win. Due to a constitutional prohibition against serving more than two terms, Correa couldn’t be in office anymore. The candidate from his political party ultimately won, and we have serious doubts that it was a fair election, regardless of what the Organization of American States says—they couldn’t see electoral fraud if it hit them in the face.
Correa’s party is again in office, and many people were hoping that, if the other candidate won, they could draft another constitution, though this is not the best solution. We’ve had 13-15 constitutions in our history. The problem with the constitution in Ecuador is that it’s not really understood as a foundational norm on which you build a state, but rather as a political document that serves the interest of the government that’s currently in office. There are only so many times that you can re-found the country. That is one of the reasons we are not moving forward—we are reinventing ourselves every 10 years. The current constitution, of course, has mechanisms that are dangerous for democracy because it gives the president so much power, but we shouldn’t create a whole different country out of scratch. For instance, the American constitution has existed for more than 300 years. The constitution serves for Obama as it serves for Trump.
I don’t think that we have to change the constitution as much as the judicial mechanisms to make sure those norms are respected. You can change the constitution 1,000 times if you like, but if you don’t have independent courts, it’s as good as nothing. The only change in the actual drafting of the constitution might be to limit executive power. After that, I would work more on ensuring that the judiciary is independent from the executive.
There’s a bureau of the state called Judiciary Counsel that belongs to the executive branch and enforces sanctions against judges. The law that applies to the work of the judiciary has a very controversial norm that’s called the inexcusable mistake—error inexcusable. Under the inexcusable mistake, a judge can be removed from his post, and in the past few years, this broad norm has been used by the Judiciary Counsel to remove judges that have decided in emblematic cases against state or against the president himself. As long as these norms are enforced, there’s very little we can do with the constitution.
The problem is not the constitution. The constitution is beautiful. The constitution has very interesting things that no other country has, but unfortunately it’s worthless and it’s useless because our courts are not independent. We advocated for a constitution that could actually enshrine our rights, and, by approving this constitution, we approved also other norms that made the executive so powerful. Now we’re seeing the consequences, and it’s too late because, with the judiciary in control and the official party holding a majority in the assembly, there is nothing we can do.
Source: World Policy Blog
Gustavo López Ospina
Editor: Pieter Jan Brouwer
All Title photographs of the Amazon Pink fresh water Dolphin are the creation of Kevin Schafer.