The death cross and the Self-restraint of the judicial review in Ecuador 

José Ignacio Hernández G. / 21-05-2023
Fuente: BBC

On May 17, 2023, the President of Ecuador signed Executive Decree No. 741, by which he dissolved  the National Assembly, invoking a “serious political crisis and internal commotion.” According to Article 148 of the Constitution, this decision not only dissolved the Assembly but also caused the early termination of the presidential mandate since the National Electoral Council must call presidential and parliamentary elections for the rest of the respective periods. 

In Ecuador, this faculty is usually called “death cross”.  The origin of such an expression is not clear.  In July 2010, amid a political crisis with the National Assembly, the then President of Ecuador, Rafael Correa, “challenged” the opposition to a “death cross”, that is, with the dissolution of the Assembly, which would imply the call for presidential and parliamentary elections.  It seems that the expression refers to the fact that,  as a result of the dissolution, both the mandates of the Assembly and the President expire. 

In any event, the expression does not reflect the meaning of Article 148 of the Constitution.  While the “cross death” involves a violent narrative -describing the annihilation of adversaries amidst political conflicts between the Executive and Legislative- Article 148 contemplates institutional, peaceful, and electoral mechanisms to resolve this crisis. 

Indeed, presidentialism in Latin America (sometimes classified as hyper-presidentialism) is usually characterized not only by the concentration of functions in the Presidency but by an imbalance between the Branches of the Government, especially concerning the Legislative.  The Constitution of Ecuador introduced an exciting formula to promote a more outstanding balance while recognizing the Legislative and Executive Branches the authority to terminate the popular mandate of the other Branch, following the specific causes established in the Constitution, including in cases of “serious political crisis and internal commotion“.  Thus, the National Assembly can remove the President on that ground, according to Article 130.2 of the Constitution.  Paragraph 1 also authorizes the removal when the President exerts “functions that do not fall within his constitutional competence, subject to a favorable ruling by the Constitutional Court“.  The Assembly had initiated a “political trial” precisely to deliberate on the removal of the President. 

For its part, the aforementioned article 148 allows the President to dissolve the Assembly for these two reasons, as well as when the Legislative Branch “repeatedly and unjustifiably” obstructs the implementation of the National Development Plan.  The Presidency requires the prior and favorable opinion of the Constitutional Court to dissolve the National Assembly based on the abusive exercise of functions. 

Articles 130 and 148 regulate the same consequence after dismissal or dissolution, providing that “the National Electoral Council shall convene legislative and presidential elections for the remainder of the respective periods on the same date.” 

The Constitution has attributed, in similar terms, the power of dissolution to both the Legislative and the Executive, thus seeking a balance between the two Branches.  Likewise, the Constitution favors an electoral solution to these conflicts through the early election, which allows renewing of the popular mandate and seeking an electoral solution to the political crisis.  As can be seen, rather than an attribution that exacerbates presidentialism, the commented articles design a political solution based on the balance of powers.  Such a solution, moreover, must be based on the values of political pluralism and tolerance, which derive not only from the Constitution but also from the Inter-American Democratic Charter.  Nothing could be further from the supposed “death cross”. 

Regarding Executive Decree No. 741, several claims for annulment were filed before the Constitutional Court, which is responsible for the judicial review and the control of acts adopted in direct application of the Constitution.  These lawsuits raised a dilemma of particular interest in Latin America: the scope of judicial review. 

In the region, judicial review has expanded from the concentrated control of Laws to an ambitious menu of claims, covering aspects such as reviewing rulings adopted by other courts, requests for interpretation, and judicial protection before legislative omissions.  As a result, the formidable power of judicial review has been greatly strengthened.  Although this expansion could be considered a good institutional design to favor constitutional supremacy, it must be remembered that such an expansion also implies what we have called the authoritarian temptation of judicial review in Latin America. 

Indeed, as Francisco Rubio Llorente recalled, judicializing political conflicts generate the risk of politicizing justice.  In reality, although the positions of  Hans Kelsen and Carl Schmitt have been considered contradictory, they are complementary: the Constitution’s control must be legal and political.  It is a mistake to think that judicial review must always resolve every constitutional controversy.  Such a path may lead to the politicization of constitutional courts and tribunals, thereby weakening the foundations of constitutional democracy. 

Precisely, on May 18, 2023, the Pre-Trial Chamber of the Constitutional Court ruled about the lawsuits, which were declared inadmissible.  The Chamber considered that the substance of Executive Decree No. 741, in terms of “serious political crisis and internal commotion“, is not subject to the control of the judicial review due to its political nature. 

Thus, as stated in one of the judgments, the dissolution of the National Assembly “due to a serious political crisis and internal upheaval allows the sovereign people to arbitrate on the discrepancies between the main Branches  of the democratic system: the Legislative and Executive, through the election of their representatives for the rest of the terms.” That is, the control is not legal, but political, or as the Chamber pointed out, the “democratic control that must be exercised by citizens through their vote at the polls, over judicial control.” 

Under a positivist reading of the judicial review and considering the paradigm of the universality of control (according to which all the Government’s decisions must be subject to judicial review), perhaps the Court could have analyzed the merits of the claims, for instance, to assess whether the decree is arbitrary or if it incurs in abuse of power.  Such control, far from demonstrating the strength of the constitutional system, would have highlighted its fragility by tending to the judicial settlements of political conflicts. 

Therefore, in Latin America, the precedent of the Executive Decree No. 741 judicial review should lead to the debate on the risks of expanding the scope of constitutional courts and tribunals and the convenience of introducing elements of moderation and self-restraint that allow, together with the judicial review of legal issues, the citizen’s control of political issues.  As Thomas Jefferson once observed, the absolute supremacy of judicial control is “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”