Oswaldo Ruiz-Chiriboga, is an Ecuadorian legal scholar who teaches human rights and constitutional law at the Central European University in Hungary. He talked to Joe Emersberger about Ecuadorian President Lenin Moreno’s assault on human rights and judicial independence. Most of Moreno’s attacks abuses stem from a referendum of February, 2018 that was called by decree and without approval by the Constitution Court as required by the constitution. One of the seven referendum questions allowed Moreno to create a handpicked body – a so called “transitory CPCCS” – that has been empowered to make sweeping changes to the judiciary and other authorities. Among other acts, the “transitory CPCCS” recently fired all the members of the Constitutional Court. The relevance of this to the persecution of former President Rafael Correa is explained. The impunity with which Moreno has trampled the rights of Julian Assange is also discussed.
JOE EMERSBERGER: In 2008, a year after Rafael Correa first took office in Ecuador, a constituent assembly was elected to write a new constitution. Correa and his allies, riding high in the polls, won most of the seats in that assembly. The constitution that the constituent assembly drafted was then approved by voters in another referendum in 2008. In 2009, a National Assembly was elected which replaced the Congress under the previous constitution. Correa also stood for reelection even though he had just taken office in 2007. One of things that came out of this whole process that restructured Ecuador’s political system was a Citizens Participation Council (CPCCS in its Spanish acronym) that oversees the selection of various unelected authorities like the judicial council. Basically it oversees “merit based” contests for these positions that are open to the public. Could you explain more about the CPCCS? Are there other countries that have a system like this?
OSWALDO RUIZ-CHIRIBOGA: This is a novelty in the region and maybe the word. The state is usually organized in three traditional branches: the judiciary, the legislature and the executive. The 2008 constitution of Ecuador includes two other branches of government. One of them was the electoral branch. The other one was the transparency branch. The CPCCS is part of the transparency branch. The idea was to have a separate branch that appoints – after a procedure based on merit – authorities that are not elected by popular vote – high level authorities like the state prosecutor, Ombudsperson, and the members of the National Electoral Council. It was very good idea considering that in the past we didn’t have anything like that. What happened before was that the state was divided up like a pie. A piece of pie was given to one political party, another piece to another political party and everyone was happy, except the people. They parceled out the state among themselves in that way. The 2008 constitution (that was widely supported by social and political movements but also by the electorate) created this new branch to quash those awful practices from the past. But what we tried to avoid is now coming back to haunt us. This “transitory” CPCCS [created by Moreno] is once again giving away the country to different political parties and political actors from the right mostly, but also from the left – from the “old left” let’s call it – that in Ecuador has always been instrumental to the right. The exception to that was Rafael Correa, the only one in my view who managed to accomplish the most important goals of the left in the region had.
JE: Moreno ran his presidential campaign in 2017 as a total Correa loyalist promising continuity. It was his right wing opponents who claimed the CPCCS had filled the state with Correa loyalists.
ORC: During the presidential campaign of 2017 all the candidates, expect for Moreno, offered some sort of constitutional reform, whether a referendum or plebiscite, some sort of constitutional reform. The only one who did not offer any change to the constitution was Lenin Moreno. He was the only one who did not offer any change to presidential term limits; did not offer any change to the CPCCS; did not offer to quash the land speculation law that Correa introduced. All these things that were offered in the 2018 referendum were not proposed by Moreno. After he won the election he basically implemented the plan of Correa’s opponents during the campaign. That’s something quite dirty – a trick on the electorate. Moreno presented a campaign platform that he is not pursuing. He is pursuing his opponents’. That’s not democratic in any way and something we should always remember.
As for composition of these state bodies, all these people won these competitions based on merit. If there were any doubts or complaints about ties to Correa or lack of impartiality then there was a procedure to raise those concerns. I don’t recall seeing anyone presenting these complaints formally during these competitions. Another thing is the fact that if you were selected during the Correa’s administration doesn’t make you a Correista, or mean that you lack of independence. Moreover, your political views should not ban you from being selected for public office. That would be political discrimination.
The proper thing to do was to study each case but also following the proper procedures. So for example if there are doubts about a member of the Judicial Council., the proper way to proceed would be for the National Assembly to impeach that member. During that process the Assembly would have to decide. That would be the proper constitutional way to proceed. So the constitution and national law of Ecuador had a procedure to do that.
Now with this “transformation” of the CPCCS because of the referendum, that completely ignored all these constitutional procedures and handed everything to this “transitory” CPCCS which is not independent because it was handpicked by President Moreno. It is not impartial because its president [Julio Cesar Trujillo] has been publicly insulting the people he is supposedly “evaluating”. It is not competent (another requirement of due process) because the proper body is the National Assembly. The “transitory CPCCS is also a de facto tribunal – created after the facts it was investigating. If you check international human rights treaties, these kinds of de facto tribunals are against international human rights law. This whole procedure to purge “Correistas” from the state is not proper in any way. The proper way would have been impeachment procedures if they had a case against specific people.
JE: So they should have, on a case by case basis, impeached unelected authorities through the National Assembly if they had a case against specific authorities. If they wanted much a more sweeping overhaul then they needed to elect a constituent assembly following the process the constitution specifies for doing that. What you explained in a paper was that they are essentially using this unelected “transitory” CPCCS as if it were an elected constituent assembly. Calling it a “transitory” CPCCS is misleading because the actual CPCCS isn’t remotely as powerful.
ORC: Correct. The key thing is that if a referendum creates a body that takes over powers that belong to another branch of government then that is a change in the structure of the state and you cannot do that with a referendum. That’s only possible through a constituent assembly, or through a mechanism called “reforma parcial” that requires the National Assembly to decide on the issue in two consecutive sessions and then call for a referendum. Neither of these procedures were followed by Moreno.
Democracy also entails separation of powers. This “transitory” CPCCS cannot legally terminate members of the judicial council which belongs to the judiciary. The “transitory” CPCCS cannot legally and constitutionally, as it just has, terminate the constitutional terms of the Constitutional Court. These kinds of things could only be done through a constituent assembly, not a referendum. That’s a clear violation of constitutional procedure and judicial independence.
The proper way to correct these violations would have been for the Constitutional Court to do an a priori constitutional review. That did not happen because Moreno by-passed the constitutional review by sending the call for a referendum without waiting for the Constitutional Court to decide. There was also the possibility for a posteriori constitutional control. That’s now impossible because we now have no Constitutional Court and the new Constitutional Court will be appointed by these “transitional” bodies. It is all a chain of arbitrariness and unlawfulness that is just unbelievable.
JE: In your paper you mention that the legal procedure to get rid of Constitutional Court members is even more difficult than it is for other judges. If judges are easy to get rid of then they obviously can’t be independent. It’s especially glaring how the “transitory” CPCCS has had to assume powers it was not given, and could not have been legally given, in a referendum in order to fire the Constitutional Court – powers like those of an elected constituent assembly.
ORC: They used a decision of a previous Constitutional Court that said the Transitory Regime has the same value and standard of hierarchy as the constitution. They are right that the Constitutional Court in 2008 ruled that the Transitory Regime had the same authority as the constitution, but, and here is the big difference, a big “but”. The Transitory Regime in 2008 was approved by the same body that approved the constitution, namely the Constituent Assembly. So the same body that approved the constitution approved the Transitory Regime at the same times, and they were published together in the official bulletin.
That’s very different from 2018 because this “transitory” CPCCS is not a body that approved the constitution. It is not at the same level as a constituent assembly, and its members were not elected by the people. They were handpicked by Moreno. This is a big, big difference but they think they have all powers and can do whatever they want and that’s just wrong from a legal and constitutional point of view.
JE: Moreno also bullied the Constitutional Court into not ruling on the referendum questions as they were supposed to do. They wrote a very lengthy report that I’ve read. It would have substantially edited questions 2 (which proposed re-imposing term limits) and 3. Question 3 is the one we’ve focused on that created this “transitory” CPCCS.
ORC: That’s why he ignored the Constitutional Court and just by-passed it.
JE: They also weren’t very good “Correa loyalists” or they would have quickly asked for the edits to questions 2 and 3. Instead they stayed quiet after Moreno publicly lashed out at them to quickly approve all the questions.
ORC: According Moreno the entire judiciary were Correa loyalists, were not independent, or had ties to Correa in different ways. If that had been true then Correa would not have all the problems he is having now.
JE: Correa didn’t do a good job of stacking them with loyalists because they weren’t very loyal.
ORC: I do have to say I am not happy with the Constitutional Court and how they behaved, especially with the (now former) president of the Constitutional Court, Alfredo Ruiz. He is the one to blame for allowing what happened in the country. He was supposed to tell President Moreno “Listen. We have to decide the case and we are going to have our plenary session on the scheduled date, the fifth of December (2017). We are going to decide the case no matter what you say.” But he yielded and allowed this to happen, and now he is out. He was kicked out along with his fellow judges.
The very same thing could be said of the National Electoral Council. They allowed Moreno to go ahead with the referendum. They should have said to Moreno “According to the law, we have to wait for the Constitutional Court to decide”, but they didn’t, and now they are out as well, so the Devil doesn’t pay his followers very well.
JE: I listened to that leaked recording of the meeting of the Constitutional Court where they discussed the report that called for editing questions 2 and 3, but put off making a final decision until December 5 of 2017. The judges sounded very nervous because of the intense pressure on them from both public and private media to give Moreno what he openly demanded of the court. Had Correa done that he’d have been condemned all over the world not just by the private media in Ecuador. Nobody batted an eye when Moreno bullied the court. Anyway, the one judge who didn’t sound nervous was Alfredo Ruiz whom you mentioned. He was basically saying “Don’t worry. We have time. etc..”
ORC: Yes, there was huge media pressure and you can hear the judges in this recording asking the president of the court [Ruiz] let’s close this off as soon as possible, if possible today.
JE: The 300 page report was already written.
ORC: Exactly, but then Ruiz said let’s wait, but the meeting was set for December 5, and according to their own calculations they had until December 7. It would have been better to if they had decided earlier but they did have time to decide.
JE: Unbelievably, Moreno said a referendum Correa called by decree in 2011 in La Condcordia (a small town) to settle a provincial boundary dispute (a vote that involved 20,000 people at most) was the precedent that allowed him to call this national level referendum that changed the constitution.
ORC: That precedent is not applicable for several reasons. First, the rules and procedures of the constitutional court that explain how the time limit [that the Constitutional Court has to rule before the President is allowed to take a non-decision by the court as a “yes” and call a referendum by decree] must be counted were updated in 2015. That’s after the La Concordia vote of 2011. Second, the 2011 referendum was not about rights and was not about the structure of the state. It was regarding territorial divisions, something completely different than the 2018 referendum.
JE: So what was the thinking of these constitutional court judges who bowed to Moreno, and were fired anyway just like the National Electoral Council?
ORC: I can only speculate that they were just afraid of losing their jobs and assumed that satisfying Moreno would save them. However a recent event is important. All the judges of the Supreme Court appeared together to say that they will not tolerate being “evaluated” by the “transitory” Judicial Council. The Constitutional Court could have done the same thing. It was very weak in defending its own rights and of course our rights as citizens.
JE: Some people argue for elected judges. Wouldn’t that offer better protection against arbitrary dismissal?
ORC: Judges should be protected. That’s not only a requirement you will find in any democratic constitution, but also because judicial independence is a human right. That’s something all states should do: protected their judges and that is precisely what is not happening in Ecuador. We have no Constitutional Court. We have a “transitory” Judicial Council that wanted to start “evaluating” judges of the Supreme Court but (only due to internal disputes within the council) the “transitory” CPCCS removed the “transitory” Judicial Council’s jurisdiction over the Supreme Court, so it is not only arbitrarily appointing and dismissing authorities but also arbitrarily deciding jurisdiction which is unbelievable.
JE: It shouldn’t be easy to fire a judge. You should have to prove corruption or bias and follow a clear legal procedure, not make it up as you go along because the mass media is behind you.
ORC: Of course that is something that any civilized society provides.
JE: Part of question 3 proposed that a new CPCCS be elected after the “transitory” CPCCS gets done with its work. I think it was actually a mistake not to make the CPCCS an elected body in 2008 when it was created in the constitution. Wouldn’t that have deterred Moreno’s power grab?
ORC: I think elections for these positions would have been wrong because you are then you are making the CPPCS into a mini-Congress. I agree that maybe we should have improved the type and efficiency of the merit-based competitions.
JE: You’ve been dismayed by how human rights groups have responded to Moreno’s power grabs.
ORC: I’m a human rights specialist. I’ve worked in the human rights field for quite a long time. What surprises me is how human rights organizations are reacting to what is happening in Ecuador. There are organizations that I considered to be serious in the past but they are now supporting Moreno. I am talking specifically about Human Rights Watch (the Americas division). The Americas head [Jose Miguel Vivanco] is applauding Moreno for what he is doing. Same with the Special Rapporteur for Freedom of Expression of the Inter-American Commission. He is applauding Moreno. I just can’t believe it. This Special Rapporteur was in Ecuador and I don’t think he even talked about the Assange case when he met Moreno, and then he appeared in the national media to say Moreno is doing things very well, Vivanco said that Moreno is a democrat. I don’t get it.
JE: I’ve followed the big “human rights” NGOs in many revealing cases: Haiti for example (after US troops kidnapped the democratically elected president in 2004) and I’m not at all surprised.
ORC: I was very disappointed. I would have expected them to say something, or maybe stay quiet, but not to applaud Moreno.
JE: You mentioned Assange. Has Moreno’s government even attempted to give a legal justification for cutting off his access to internet, phone calls and even most visits (expect for his lawyers) in the Embassy in London? Assange is an Ecuadorian citizen after all.
ORC: I have no idea what legal basis they are using. I believe there is none, or none that is public for us to discuss. The fact that Assange is a citizen is kind of irrelevant on this point because Assange is under Ecuadorian jurisdiction. A person under the jurisdiction of a state has the same rights as any other citizen except of course for political rights. But the freedom of expression for Assange should be protected because he is a person, not because he is Ecuadorian. The Ecuadorian government is not doing that. And these messages that Moreno has been delivering in the media that “well we only care about the right to life of Assange” – insinuating that he could be released to UK authorities – that’s also quite disturbing. The right to life is not the only right that counts in these cases: due process also counts, the right to humane treatment also counts but it seems like Moreno doesn’t care about them.
JE: Being an Ecuadorian citizen should give him even stronger legal protection shouldn’t it?
ORC: It depends what rights you are talking about. If we are talking about freedom of expression (and Assange presently has no access to internet or public communication) regarding that particular right there is no difference between an Ecuadorian citizen and foreigners because the individuals under the jurisdiction of the state have the same rights. The relevance of citizenship in this case has to do with extradition – Ecuador’s government potentially handing him over to UK authorities. In that way he has stronger protection as an Ecuadorian citizen.
JE: Is there any nation-level media in Ecuador, who complained so much about Correa, saying anything about Moreno trampling Assange’s tight to free expression, or about the firing of the Constitutional Court?
ORC: Small independent media, but not the big corporations – the newspapers and TV. We don’t have free media right now. The political, social and economic elites control everything, not just media but banking and the productive system. These elites were the ones who suffered under Correa because of his policies that redistributed wealth, but now they control the country again.
JE: Moving onto the Balda case, Fernando Balda, an Ecuadorian politician, was kidnapped for a few hours in 2012 while he was in Colombia.
ORC: It was a few minutes. I believe less than twenty minutes.
JE: Ok it was botched kidnapping in Colombia. Some Ecuadorian police were implicated and convicted if I am not mistaken in Colombia.
ORC: No. The ones convicted in Colombia were the Colombian kidnappers but not the Ecuadorian officials.
JE: Ok but there were Ecuadorian officials implicated. How strong was the evidence?
ORC: Well one of the [Ecuadorian] police officers, according to his own testimony, participated is this kidnapping – a Mr. Chicaiza. He said “I did it”. Regarding his involvement I should not dispute that.
JE: But are there recordings or documents where Correa says “we’re going to kidnap this guy”.
ORC: No. There is nothing.
JE: That kind of makes sense because Balda was very minor political figure.
ORC: Yes of course but imagine this. According to Chiciaza he did what he did because Correa told him to. He said that Correa called him – I believe three times. He said that at the beginning. Then he said that he met with Correa one or two times. Then Chiciaza’s lawyer said that Chicaiza was lying when he said he met with Correa. So he is lying about meeting with Correa but telling the truth about Correa calling him? This witness is not reliable. So what proof does Chicaiza have that Correa called him? There is no proof of that. And when Chicaiza’s lawyer is asked “do you have any proof your client was called by Correa?” he said “no”. It is basically the word of Chicaiza (whose own lawyer has recognized him as a liar) that is the evidence against Correa. That’s unbelievably weak.
JE: It’s a flimsy case for sure, and it is striking that they are even pursing it.
ORC: The acting prosecutor in this case was appointed b the “transitory” CPCCS. Are we talking about a fair trial here or political persecution?
JE: It all traces back to this trampling of the constitution that created the “transitory” CPCCS. The judge handling the Balda case, Daniela Camacho, formally requested that the Nation Assembly vote whether or not to take away Correa immunity. Her interpretation, as a judge, of the constitution was that since the alleged kidnaping took place while Correa was president, his immunity would have to be taken away by the National Assembly for the case to proceed. They needed 2/3 to approve that and could not get it, so, by simple majority, they voted on a reply to her that said removing Correa’s immunity wasn’t necessary.
ORC: And without opening the debate in the assembly. There was not even a debate where legislators could explain themselves over this resolution that was passed. Democratic debate in the parliament was not allowed.
JE: But then the judge accepted the National Assembly defying her request and kept moving the case forward. She received a lot of abuse just for making the request.
ORC: She also said something very important. She said she was going to decide on this issue in a pre-trial hearing – hopefully this week. In my opinion the judge could have said something before, but she still has time to rule that this is not a proper trial because there is no authorization from the assembly. I hope she does.
JE: But sitting over top all the judges is this super body – the “transitory” CPCCS
ORC: It is not directly over judges of the Supreme Court. The “transitory” CPCCS appointed the “transitory” Judicial Council which sits over them. That creates doubts. What will happen to judge Camacho if she decides in favor of Correa? Will she be dismissed?
JE: But the “transitory” CPCCS just fired all the Constitutional Court judges who are (on paper) even more protected than judge Camacho right?
ORC: Yes and also the judge in a case involving one of Moreno’s former ministers, Ivan Espinel, released him on bail or using some other precautionary measure like an ankle bracelet. The “transitory” Judicial Council suspended the judge for 60 days. What does that tell you? If they don’t like the way you rule you will be punished. That’s not a proper guarantee of judicial independence.
So judge Camacho must decide soon if she has authorization from the National Assembly. Another issue she will decide on is double jeopardy because Correa has already been cleared of these allegations in Colombia. There are various other allegations Correa’s legal team has made of procedural irregularities that she will need to address. The judge will also have to decide if Correa will have to face trial. Right now we are still in the pre-trial phase.
JE: Could you talk a bit about the international push back against the persecution of Correa. I understand Interpol canceled an arrest warrant against Correa, and that some international observers have also pushed back.
ORC: I cannot comment on that because I have no access to the Interpol files. They are not available to the public. But I saw an interview [about 20:30 point] in which Correa’s Belgian lawyer, Christophe Marchand, explained that the Interpol proceedings were stopped.
