Contemporary challenges of the Constitutional Court of Ecuador

How do politics shape which judges are confirmed to constitutional court in Ecuador? While there is ample evidence that judges are chosen for their political backgrounds or preferences, little is known about how they are selected from a slate of possible candidates. This study focuses on the politics of nomination and confirmation across different selection systems in Ecuador. As such, the paper delves into how these institutions mould the internal composition of courts, ultimately influencing behaviour of constitutional judges. Using an original dataset on the attributes of the winners and losers of the selection process, roll call votes, and variables related to the political context and the confirmation procedure, I find that differences in the institutions that initially select the judges play a role in who wins the confirmation. The nominators‘ advantage has important implications for our understanding of the role of judicial selection on decision-making.

In a constitutional democracy, the state of exception gives way to a regime that legally suspends rights and concentrates powers in the executive. For this reason, Ecuador‘s Constitution includes an automatic judicial review of states of exception with strict formal and material limits. This thesis explores the response of the CCE to the decrees that established an exceptional regime during the COVID-19 pandemic. Problems such as the lack of definition of the notion of public calamity as a justification for the decree and its motivational deficiencies gave way to rulings that reviewed their constitutionality and were forced to correct those shortcomings and allowed the extension of the exceptional regime. The pandemic demanded an emergent action in its beginnings, but also the implementation of ordinary measures that allowed a return to normality. After the first renewal of the state of exception, the process of judicial review became deficient and permissive of the exceptional regime.

This paper analyzes the scope and limits of the control of constitutionality of the mechanisms of direct democracy. After evidencing the dilemmas posed by direct democracy for a strong constitutional control system, I describe the Ecuadorian context and I further examine, based on jurisprudential analysis, the way in which the Constitutional Court has developed formal and material control of various mechanisms of democracy. Finally, I explain how constitutional control has been possible in a fragile and unstable democracy and the effects that stem from such an environment.