Positive vote for the new Ecuadorian Constitution confirmed – a brief review

On October 13th, the Highest Electoral Tribunal of Ecuador announced that the new Ecuadorian Constitution has been approved in the referendum held on September 28th.  With 63.93 per cent of the votes in favor compared to 28.1 per cent of the votes against the new constitution was clearly endorsed by the people. With the official confirmation of the election results by the Electoral Tribunal the decisive steps for the entry into force of the new constitution have been taken (for the text of the new constitution see here).

The new constitution was elaborated and negotiated by a constitutional assembly and is with 444 articles a quite comprehensive text. It provides for a number of significant changes, some of the most prominent of which are outlined below (we reported earlier on the environmental dimension of the new Ecuadorian Constitution).

First and foremost, the new text enhances the social rights catalogue of the constitution making it one of the most socially advanced constitutions on the continent. Among other things, the constitution prohibits child labour of minors under 15 and makes school attendance mandatory until graduation from high school. It furthermore recognizes the right to emigrate and guarantees a set of minimum rights for Ecuadorian migrant workers working abroad as well as certain minimum rights for foreign migrant workers coming to Ecuador. Perhaps even more noteworthy are the new provisions regarding the status of the family. The new constitution takes into consideration the family “in its diverse types”. This means in practice that all factual partnerships will benefit from the same protection as married couples regardless of whether they are of a homosexual or heterosexual nature. This is manifestly a landmark in the history of the rights of homosexuals in Ecuador. Finally, certain provisions enhancing medical protection and educational rights are introduced. However, critics remain sceptical as to whether these ambitious constitutional standards may be financed and implemented in practice.

In addition, special regard is had to the rights and interests of the indigenous communities of the countries that make up 20 per cent of the 14 million inhabitants of the country. This is apparent from the preamble of the constitution which proclaims Ecuador to be a plurinational state (“Estado plurinacional”). More specifically, Article 257 of the Constitution enables indigenous communities to form territorial administrative districts that exercise the competences of an autonomous government. Many Ecuadorian lawyers expect that this provision may provide considerable support for the longstanding claims of indigenous communities regarding land distribution and the use and protection of natural resources. In this respect, the new constitution is likely to give rise to conflicts between the indigenous communities and the central government as well as with certain multinational companies that are active in the areas concerned. It remains to be seen whether the practical application of Article 257 and the policy of the government will allow for a noticeable improvement of the situation of the indigenous communities in the country.

Criticism on the new constitution focuses, in particular, on the new balance between the different constitutional institutions. Many have claimed that the Ecuadorian president, Rafael Correa, used the new constitution to entrench the presidential prerogatives and to prolong his term of office. Indeed, the new constitution would allow the president to stay in office until 2017. According to Franklin Ramirez, social scientist at the Facultad Latinoamericana de Ciencias Sociales, the new constitution accords as much power to the executives as the former ones. However, he argues that the prerogatives of the executives may be mitigated by certain checks and balances the new constitution provides for. He attributes special importance to the right of parliament to initiate investigations against specific members of the government and the possibility of the legislature to depose the government (and vice versa) with a subsequent call for general elections. In Ramiréz’ view, the problem with the new constitution is rather that it converts the state into a central development and investment agency with an overly strong influence on the national economy.

The new Ecuadorian constitution is – after the adoption of the new constitutions in Venezuela and Bolivia – the third constitutional revision by a left government in the last years with a strong social impetus. It remains to be seen whether Ecuador will be able to keep the promises the new constitution makes to its citizens.