Democracy and Constitutional Justice (Panel Moved Online)

This paper examines the way the Ecuadorian Constitutional Court has interpreted and exercised the attribution stated in article 436 (3) of its Constitution. The provision allows the Court “[to declare related norms unconstitutional ex officio, when it concludes that, in the cases under its consideration, one or many of them are contrary to the Constitution]“. The Court has understood that the aforementioned provision grants it the power to review the constitutionality any legal norm –in a broad sense– regardless of whether the plaintiff has expressly challenged its constitutionality, or the issue came to be as a part of a controversy in a concrete case. While many Ecuadorian scholars and lawyers regard this as exceeding the constitutional power of the Court, we hold that this is because they part from a civil law approach to constitutional adjudication, and the assumption that the Ecuadorian arrangement has to fit into the cast of the Austro-German model of constitutional review.

What is arbitration? The first answer, leads us to say that it is an alternative method of conflict resolution. However, it is complex to understand the alternation and differentiation of this jurisdictional method with judicial processes. In this problem, it becomes especially relevant when any action derived from the arbitration process must be resolved and when legal problems must be resolved in specific cases as a result of constant interaction between the arbitrators and the judges. This academic paper aims to analyze the current state of constitutional jurisprudence that govern the arbitration process and the actions derived from it, with special emphasis on the recent and relevant criteria of the current constitution of the Constitutional Court of Ecuador. In order to constitute a current guide on how to resolve legal problems in specific cases when there is an arbitration, an arbitration agreement or award and actions derived from these.

The COVID-19 pandemic, since its declaration as such by the World Health Organization on 11 March 11 2020, has led to unprecedented efforts by the States to contain the virus and protects their populations. To this end the governments around the world have implemented all kinds of urgent measures, in many cases within the framework of a state of emergency. Undoubtedly, sanitary contingency showed that many legislations did not have provisions regarding mandatory confinements or telework, even in the highest governmental entities within the framework of the suspension of essential rights. The occasion has been relevant in Ecuador, a country that a priori has a system of concentrated constitutional control, aimed to weigh the scope of the states of emergency declarations within democratic regimens and a contingency that, for several months now, has assumed predictable and permanent characteristics over time.

According to the Ecuadorian Constitution, democracy is built on political representation, citizen participation and community self-determination. In reality, the concentration of political power in the Executive, the selective and even manipulative use of the mechanisms of direct democracy and the systematic disregard of collective rights, entail structural obstacles for Ecuadorian democracy. The democratic commitment of the Constitutional Court, in this context, can be crucial to redefine political action and remedy the problems noted. Through the systematic analysis of recent jurisprudence issued by the Constitutional Court (2019-2022), this paper aims to account for the responses that constitutional justice has given to various pathologies that threaten democracy in Ecuador.