My country, Ecuador, is known among comparative law scholars for its positivistic civil law system, one of the world’s longest Constitutions, and for being legally unstable, with constitutional reforms every now and then to change it to the likings of the government [1].

But Ecuador is also known to be deeply religious and conservative, which has a notable moral influence in our laws and their interpretation.

Our oldest legal instrument still in force, our Civil Code, for example, was established in the 1860s, during the conservative government of Gabriel García Moreno [2], and his initial enforcement was influenced by his Catholic statesmanship, which, still to this day, has set precedent on its application.

Nevertheless, on 28th April 2021, my country’s Constitutional Court, established under our current leftist Constitution, decided, on a majority vote, to decriminalize abortion for rape victims [3], after two failed legislative attempts to legalize it at the National Assembly in 2019 and 2020 [4].

The Court’s nullified a particular section of the Ecuadorian Criminal Code’s article that listed the cases on which abortions were non-punishable, on unconstitutionality grounds as it considered it violated the Constitution’s principle of non-discrimination, established by article 66, section 4 [5].

The dissenting votes [6] were written by two Associate Justices, Carmen Corral and Teresa Nuques, based on textualist interpretations of article 45, that declares that “the State shall recognize and guarantee life, including care and protection from the time of conception” [7], and of article 66, section 1, that affirms that “the following rights of persons are recognized and guaranteed: […] the right to the inviolability of life” [8].

This is not the first-time the Constitutional Court has been used to impose a leftist legal agenda, since none of the legislative or referendums efforts to do so have been fruitful.

The first time was in 2019 [9], at the beginning of the current tenure of the Constitutional Court, whose liberal wing, headed by former human rights activist Associate Justice Ramiro Avila, legalized same-sex marriage in a disputed ruling, with five of the nine Justices that compose the Court pitted against the other four.

That case’s dissenting vote was written by conservative Chief Justice Hernán Salgado [10], supported by other three Justices, based on a textualist interpretation of article 67, that establishes that “marriage is the union of man and woman” [11].

As the Ecuadorian Constitutional Court has twice been used to promote a leftist agenda, one wonders how coincidental this is, or if it is deliberate delegitimization of the Constitution and its emanated legal order, since both times, the Court’s conservative wing failed to prevent favorable rulings by dissenting based on an originalist interpretation of the respective constitutional articles.

My nation, whose vast majority is Catholic (74.8%), and its largest religious minority is Protestant (15%) [12], cannot be sure the Constitutional Court will not be used again to impose a leftist agenda, since its institutional design has fashioned it as a sovereign entity.

This may feel nonsensical as the current Constitution formally remarks in its first article that “sovereignty lies with the people, whose will is the basis of all authority, and it is exercised through public bodies using direct participatory forms of government as provided for by the Constitution” [13].

This concept of sovereignty is, nonetheless, useless in a context where the Constitutional Court rules supreme, and to understand the way it truly operates, Carl Schmitt’s book Political Theology: Four Chapters on the Concept of Sovereignty provides a useful framework.

For Schmitt, “sovereign is he who decides on the exception” [14], because “the exception is more interesting than the rule. The rule proves nothing; the exception proves everything. In the exception, the power of real-life breaks through the crust of a mechanism that has become torpid by repetition” [15].

Even if Schmitt referred to executive exception, which used to be that of absolute monarchs [16], who had power to create rules, and judge according to them, his concept is clear on something: “the rule proves nothing; the exception proves everything. In the exception, the power of real-life breaks through the crust of a mechanism that has become torpid by repetition”, which means that the one person or entity that decides when or where a rule applies is, for all purposes, sovereign.

Relatedly, the Ecuadorian Constitution establishes in article 429 the Constitutional Court as a supreme, independent, and nominally non-partisan organ with national jurisdiction, separate from the National Court of Justice, a largely neutered high, non-constitutional, appeal court, to serve as a constitutional interpretation and enforcement body [17].

Moreover, sections 1 to 5 of Article 436 establishes other duties of the Court such as interpreting international human rights treaties ratified by the Ecuadorian State, nullifying on unconstitutionality grounds the norms that contradict the Constitution, and hearing and resolving public claims of unconstitutionality filed against State authority-issued regulatory and administrative acts and claims of noncompliance filed to enforce administrative regulations and acts and international human rights rulings not enforceable through regular judiciary channels [18].

Practically, these vast powers mean in that the Court can create constitutional rules by itself, only by interpreting the Constitution, without needing referendums or the installation of a national constitutional assembly to reform it, which ultimately means the Court holds constituent power by and onto itself.

Its most powerful application, granted by Article 166, proves its sovereignty, as the Court can invalidate the declaration of a State of exception decreed by the President [19], meaning it effectively has more power than the executive itself [20].

Its powers can overcome those of the Executive branch, constitutionally allowed to decide on the exception, as established in Articles 164 and 165 [21], those of the Legislative branch, whose powers include “to participate in the constitutional reform process” [22] and “to expedite, codify, reform and repeal laws and interpret them, with a generally mandatory nature” as described in Article 120, sections 5 and 6 [23].

Ultimately, as the Court can declare the unconstitutionality of any rule in the Ecuadorian legal order, this means it can decide on the exception, with its Justices deciding which rules apply, which do not, and how to apply or not apply them, and as such that it is a Sovereign entity and that it probably is the most powerful institution established by the Constitution.

On his dissenting vote on the legalization of same-sex marriage, Chief Justice Hernán Salgado already warned about the dangers of a sovereign Constitutional Court, calling it “a new form of constitutional illusionism, […] A process of arbitrary mutation that destroys the supremacy of the Fundamental Law […] that could lead to a fraud against the Constitution, […] since the constitutional justices are not constituent legislators, let alone legislators themselves” [24], but I think he did not see the point of the intentional design of a particularly powerful Constitutional Court.

This sovereign quality of the Court could clarify why it has been used twice to rule favorably on a leftist agenda, as article 439 allows for “constitutional proceedings [to be] be filed by a citizen individually or collectively” [25], which means that any interested party can file consultation lawsuits to the Court asking for the nullification of any rule in the Ecuadorian legal order, pushing ideological agendas that way.

I do think this is well understood by leftist legal activists, as they have engaged in lawfare campaigns against the established legal order, using the Constitution and laws themselves as tools to subvert it.

This is a little understood concept, but the definition set forth by Brooke Goldstein [26] might be the most exhaustive one can find for it.

For him, lawfare “is about the abuse of the law and our judicial systems to undermine the very principles they stand for: the rule of law, the sanctity of innocent human life, […] Lawfare is not something in which persons engage in the pursuit of justice; it is a negative undertaking and must be defined as such to have any real meaning.

Otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law, on the one hand, and what is lawfare, on the other. Because that is the essence of the issue here, how do we distinguish between that which constitutes a constructive, legitimate legal battle (even if the legal battle is against us and inconvenient) from that which is a counterproductive perversion of the law, which should be allocated no precedent? […]

Now, the question is not ‘who is the target’, but ‘what is the intention’ behind the legal action: is it to pursue justice, to apply the law in the interests of freedom and democracy, or is the intent to undermine the system of laws being manipulated?”

Since the Ecuadorian Constitution protects life from conception and the traditional definition of marriage, and since it can only be reformed in the ways it allows for itself, no legislative proposal could have been constitutionally effective to legalize same sex-marriage or abortion.

However, given it allows the Constitutional Court to be a sovereign entity with power to decide on the exception, determining which rules apply or do not, as well as with constituent power to create rules on its own and enforce them liberally, the Court was the perfect tool to engage in lawfare against the Constitution and its right to life from conception and its definition of marriage.

In both cases, the Court was used to weaken the articles that protected these rights and institutions, with activists filing for counsel and engaging in processes to pervert the Constitution, allowing for precedent to be made on their basis.

Both times, the intentions behind the legal actions were not to pursue justice, nor to apply the Constitution in the interests of common good, but to undermine its emanated legal system.

In the same-sex marriage case, Associate Justice Ramiro Avila had filed an amicus curiae [27] on this very case before he was sworn in, and coincidentally, was selected to hand it, guiding the Court to unilaterally adopt the Interamerican Human Rights Court Legal Counsel Decision OC-24/17 [28], ruled for a non-binding Costa Rican case which promoted a liberal interpretation on the Pacto de San Jose that declared same-sex marriage as a human right.

Moreover, a lesbian couple that publicly campaigned for 6 years for same-sex marriage legalization, marrying the same day it was declared constitutional by the Constitutional Court, filed for divorce two weeks after, proving their relationship was a stunt to challenge the constitutional status of marriage [29].

On the decriminalization of abortion case, it should not be a surprise that one of the sitting Justices, Daniela Salazar, had already espoused a pro-abortion stance since her days as vice-dean of the nationally top-ranked USFQ Law School [30].

Both cases’ decisions follow the same pattern [31][32], referring to article 11, section 8, of the Constitution, which mandates that “the exercise of rights shall be governed by the following principles: […] The contents of rights shall be developed progressively by means of standards, case law, and public policies. […] Any deed or omission of a regressive nature that diminishes, undermines or annuls without justification the exercise of rights shall be deemed unconstitutional” [33].

The current constitutional doctrine considers this as a principle of fundamental rights’ progressiveness, meaning no newly recognized right can be overruled by legislation or jurisprudence, which, in accordance with article 440, that dictates that “the rulings and decisions by the Constitutional Court shall be final and without recourse to appeal” [34], makes reform on them impossible.

As if the already numerous problems set by its positivism were not enough, the Court’s own rules, set in the infra-constitutional Law of Jurisdictional Guarantees and Constitutional Control, make it even worse.

Said law establishes the methods for constitutional interpretation in article 3, mandating that “the Constitutional shall be interpreted in the sense that best adjusts to the Constitution in its entirety, in case of doubt, it will be interpreted in the sense that most favors the full validity of the rights recognized in the Constitution and that best respects the will of the constituent” [35], the last part codifying originalism for constitutional interpretation.

It also allows for discretionary interpretation, “without prejudice to the fact that one or more of them are used in a case” [36], meaning cases can be decided in whatever way the justices want, without considering the legal order or the common good.

Two cases ruled on activist interpretations of the Constitution, with dissenting votes expressing textualist and originalist interpretations are proof enough that the mere application of the law as written is no protection against progressive militants using the Court to enforce their agenda, since the law itself is the one that allows liberal justices to impose their ideological biases in their decisions, which are secured from overruling.

If I were to analyze this as a libertarian, I would say my country’s Constitutional Court’s rulings expressing accumulated empirical knowledge as emergent order, manifesting nomos from trial and error, as F. A. Hayek’s conceived jurisprudence in his book Law, Legislation and Liberty [37], but they are not.

The constitutional design of the Court allows for lawfare to be part of its workings and for a leftist agenda to be imposed as some ‘conquest’ of rights, which makes me think it was planned from the very ideological leanings of the Constitution itself.

I had researched on local conservative takes on constitutionalism since at least the Court first favorable ruling on openly leftist policies back in 2019, as they reminded me of the ruling on Roe v. Wade in 1973 and judicial activism in the United States Supreme Court, but I realized no jurist in Ecuador was seeing the Constitutional Court as a sovereign entity, deciding on the exception favorably for any leftist policy it was proposed to rule on, I decided to write about this on my own.

Two times the conservative wing of the Court had failed to protect the rights and institutions in the Constitution, naively thinking a textualist interpretative approach would prevent the liberal wing’s judicial activism to undermine its meaning.

Twice, the dissenting votes declaring that the Constitution’s meaning is clear and should be applied as written have demonstrated the failure of originalism, proving power is actively exercised by a liberal elite that does not care about the literal meaning of rules, and when it does, it has them in their favor.

Textualism and originalism are not enough against Constitutional Lawfare, and my country’s experiences prove it. Two times are not enough to undermine the common good in the name of liberty, and they will not be the last, as my country progresses towards entropy.

Harvard Law Professor Adrian Vermeule has already called for an end of originalism, as it has “outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation” [38], as it may have done good work for conservatives on the Anglosphere, but for us in the South, it is already proving to be counterproductive in its few years of use, which sadly proves he was right, not only in American constitutional jurisprudence, but on foreign constitutional jurisprudence as well.

Sources:

[1] Fuentes, Juan Andres. “The Basic Structure of the Ecuadorian Legal System and Legal Research”, NYU School of Law Hauser Global Law School Program Globalex Tool, March/April 2021, http://www.thedigitalshift.com/2013/12/k-12/steal-infographic/

[2] MacLeod, M. J., Knapp, Gregory W. and Pozo Vélez, Homero. “The regime of García Moreno (1860–75)”, in “Ecuador”, Encyclopedia Britannica, March 17, 2020, https://www.britannica.com/place/Ecuador/The-regime-of-Garcia-Moreno-1860-75

[3] Ecuadorian Constitutional Court Press Department, “Acción de inconstitucionalidad de los artículos 149 y 150 del Código Orgánico Integral Penal”, Ecuadorian Constitutional Court News Bulletin, April 29, 2021, https://www.corteconstitucional.gob.ec/index.php/boletines-de-prensa/item/911-acci%C3%B3n-de-inconstitucionalidad-de-los-art%C3%ADculos-149-y-150-del-c%C3%B3digo-org%C3%A1nico-integral-penal.html

[4] El Universo, “El tema del aborto llega por segunda vez al gobierno de Lenín Moreno y por un proyecto de ley”, September 6, 2020, https://www.eluniverso.com/noticias/2020/09/04/nota/7966114/aborto-veto-codigo-organico-salud-gobierno/

[5] [6] [31] Ecuadorian Constitutional Court Decision No. 34-19-IN/21 for Case No. 34-19-IN, and its Dissenting Vote, April 28, 2021, http://esacc.corteconstitucional.gob.ec/storage/api/v1/10_DWL_FL/e2NhcnBldGE6J3RyYW1pdGUnLCB1dWlkOidiZGE2NDE0YS1jNDI1LTQzMGMtYWViNi1jYjY0ODQ1YTQ2NWUucGRmJ30=

[7] [8] [11] [13] [17] [18] [19] [21] [22] [23] [25] [33] [34] Republic of Ecuador, Constitution of 2008, translated into English, Georgetown University Edmund A. Walsh School of Foreign Service Center for Latin American Studies Political Database for the Americas Online Tool, January 31, 2011, https://pdba.georgetown.edu/Constitutions/Ecuador/english08.html  

[9] Ecuadorian Constitutional Court Press Department, “Extracto Sentencia N° 11-18-CN (matrimonio igualitario)”, Ecuadorian Constitutional Court News Bulletin, July 1, 2020, https://www.corteconstitucional.gob.ec/index.php/boletines-de-prensa/item/47-extracto-sentencia-n-11-18-cn-matrimonio-igualitario.html

[10] [24] [28] [32] Ecuadorian Constitutional Court Decision No. 11-18-CN/19 for Case No. 11-18-CN, and its Dissenting Vote,  June 12, 2019, http://doc.corteconstitucional.gob.ec:8080/alfresco/d/d/workspace/SpacesStore/1bfa3cb4-82be-4b2e-8120-418fcaeb3b51/0011-18-cn-sen.pdf?guest=true

[12] Pasquali, Marina. “Religion affiliation in Ecuador as of 2018, by type”, Statista.com, Apr 29, 2020, https://www.statista.com/statistics/1067057/religious-affiliation-in-ecuador/

[14] [15] [16] Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab. (2005).

[20] Ecuadorian Constitutional Court Decision No. 7-20-EE/20 for Case No. 7-20-EE/20, and its Dissenting Vote, December 27, 2020, http://esacc.corteconstitucional.gob.ec/storage/api/v1/10_DWL_FL/e2NhcnBldGE6J3RyYW1pdGUnLCB1dWlkOicyYzM2ZDg1NC1iZDFjLTRkMWQtYjBkZS0xZGJjYWNmYjc3ZTcucGRmJ30=

[26] Goldstein, Brooke. Lawfare: Real Threat or Illusion? Speech Delivered at The Princeton Club, New York City, on November 5, 2010, https://www.thelawfareproject.org/analysis/2010/11/5/ilawfare-real-threat-or-illusionibrthe-lawfare-project

[27] La República, “Alberto Acosta y Ramiro Ávila promueven matrimonio gay”, March 12, 2015, https://www.larepublica.ec/blog/2015/03/02/alberto-acosta-y-ramiro-avila-promueven-matrimonio-igualitario/

[29] Plan V, “El primer divorcio igualitario”, September 28, 2020, https://www.planv.com.ec/confidenciales/sociedad/el-primer-divorcio-igualitario.

[30] Center for Justice and International Law, “Carta abierta a los Estados miembro de la Organización de los Estados Americanos”, Center for Justice and International Law News Bulletin, May 25, 2016, https://cejil.org/comunicado-de-prensa/carta-abierta-a-los-estados-miembro-de-la-organizacion-de-los-estados-americanos/

[35] [36] Republic of Ecuador, Law of Jurisdictional Guarantees and Constitutional Control, translated into English by the author, https://www.defensa.gob.ec/wp-content/uploads/downloads/2020/03/Ley-Organica-de-Garantias-Jurisdiccionales-y-Control-Constitucional_act_marzo_2020.pdf

[37] Hayek, Friedrich August. “Nomos: The Law of Liberty”, on Law, Legislation and Liberty (1973).

[38] Vermeule, Adrian. “Beyond Originalism”, The Atlantic, March 31, 2020, https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/