Democratic Constitutionalism and Constitutional Innovation in Ecuador

Democratic Constitutionalism in Ecuador: The Rationale of Constituent Change

Democratic constitutionalism can be defined as the overlapping of two concepts that provide feedback and dialectically determine each other: democracy and constitutionalism. A legitimizing rationale and indispensable argument exists in both constitutionalism and democracy in the constitutional state: the democratic principle (Martínez, 2012). The legitimacy of the constituted power and especially of the constitution stems from the material presence of this principle not just formally but also fundamentally and in its political origin and its legal outcome. A popular and therefore emancipating process of constitution writing can only result in an emancipating constitution.

This was initially the goal of the process formally initiated in 2007, which followed the guidelines of the new constitutionalism: direct activation by the people of the inviolability clauses of the previous constitution (generally through a referendum); democratic election of the members of the constituent assembly; participatory, consultative, and plural drafting of the proposed constitution; and, in most instances, a referendum on the constitutional text. This is a democratic process (Viciano and Martínez, 2011). Activation of the direct feature of sovereignty took place through a referendum by means not expressly established in the constitution of 1998, followed by the democratic election of a national constituent assembly. A process of consultation and participatory debate was begun that led to the constitution written in Montecristi and later approved in a referendum after a campaign in which there was broad participation (López and Cubillos, 2009: 13–20). ² Despite the problems always present when there is a break with the past, the democratic legitimacy of the process was explicit. The 2008 Constitution was thus the legal-political manifestation of the creative intent of the Ecuadorean people and, according to Ortiz (2011: 26), “affirmed national and popular sovereignty, strengthened the state, reformed the political system, and introduced a new model of development under the concept of sumak kawsay.”

From the beginning the 2008 Constitution conveys the principle (extralegal but no less worthy of being part of the constitutional text) of the legitimacy of the power of the people. “Sovereignty lies with the people, whose will is the basis of all authority, and it is exercised through public bodies using direct participatory forms of government as provided for by the Constitution” (Article 1). ³ The article is of course alluding to indirect exercise of—constitutionalized—sovereignty and therefore to the realization of self-regulated power. The direct and absolute exercise of sovereignty is part of the mechanism of political legitimacy, and although its specific evidence of it is unnecessary it usually appears in constitutions with general formulas that cannot be interpreted as legal limitations on the direct exercise of sovereignty. As we have seen, both dimensions of sovereignty clearly appear in the second paragraph of Article 1, and it is found in other places in the constitutional text.

This first article of the constitution, analyzed from the perspective of the definition of the state, determines the relationship between the principle of popular sovereignty and the manifest will of sovereignty: the construction of the constitutional state. Its first paragraph establishes this definition-objective: “Ecuador is a constitutional State of rights and justice, a social, democratic, sovereign, independent, unitary, intercultural, plurinational and secular State. It is organized as a republic and is governed using a decentralized approach.” The concept of the “constitutional State” must be understood not in exclusively formal or attributive terms, as a state governed by a constitution, but principally in its material or substantive dimension, as a state governed by a constitution appropriate to a constitutional state (Martínez, 2008: 281).

The physical construction of the constitutional state and therefore of its constitution reflects a superseding of the social and democratic state of law by resolving its weaknesses and including new solutions in the relationship between legitimacy (through constituent power) and legality (of the constituted power). The constitutionalism of the social state reached its peak, after a long evolution, in Europe after World War II with the inclusion of social rights (although often only nominal) in constitutional texts. The constitutional state, as it is set forth in the 2008 Constitution, intends to go farther: it seeks to establish the direct relation between popular sovereignty and the constitution that had been lost after revolutionary liberal constitutionalism, the last stage of a supreme standard-setting text directly linked to the popular will. The decision of the Ecuadorean people was to move toward a new phase of democracy that can only be achieved with the most recent version of democratic constitutionalism but at the same time creating its own model, which is critical given the historical adaptations of constitutionalism “from the North” (Ávila, 2011: 75–80).

The constitutional advance of the Ecuadorean process has followed the wave of constitution writing in Latin America in recent decades. The objective and subjective conditions for democratic change developed earlier in the region than elsewhere and opened the way for the so-called new Latin American constitutionalism. Popular sovereignty has led to the promotion in various Latin American societies of an initiative aimed at advancing toward a democratic constitution (Viciano and Martínez, 2011: 5). It is evidence of the empowerment of the popular classes and the development of a collective consciousness of the need to change the constitution democratically in order to move toward a more just and equitable society.

In the new Latin American constitutionalism, legal change is the result of a previous political change. As Nogueira (2009: 236) points out, the originary constituent power operates as an extralegal power not based on the constitution that it intends to replace: it is an extraordinary institution that develops in a specific historical moment and, having done its work, gives way to the new constitution. Therefore, it is not confined to experts in law or necessarily restricted to governments of the left (the liberal government of Gaviria in Colombia is not likely be so described, and neither was Zelaya’s government in Honduras), although the majority of the constituent movements have been proposed by them—those of Chávez in Venezuela, Morales in Bolivia, and Correa in Ecuador (Viciano and Martínez, 2010: 7–29). The new constitutions have produced an unquestionable capacity for social change: the closing of the foreign bases in Ecuador, the creation of communal councils in Venezuela, progress in the protection of social rights in Colombia, and the consecration of the plurinational nature of Bolivia, with all their implications, are examples of the transforming capacity of the new constitutions. Other left governments, such as Brazil or Nicaragua, have skirted the possibility for the time being.

One common denominator in these processes has been the situation of the previous constitutionalism, which, since the disappearance of the foundational constitutions, had reflected weakness, adaptation, and rhetoric. A clear example of this was the indiscriminate use of the constitutions to justify reelections and extensions of terms and, moreover, constant violations of consensus of elites and coups d’état (what I have called criollo constitutionalism). In contrast, the new Latin American constitutions are the result of constituent assemblies committed to social and political reform, and they are strong, original, and binding.

The objective conditions for this development make reference to the presence of a state of crisis, of constituent need, and the subjective ones include a societal conviction that democratic constitutional change can be a quick and successful route to a resolution. We must keep in mind, as Gargarella and Courtis (2009: 10–11) warn, that constitutions normally arise in times of crisis with the goal of resolving some basic politico-social problem. While the magic solution is not found in the constitution, it is felt that it is an important part of what can be done, collectively, to produce change. The same writers note some possible responses to the problem that are the objective of the new constitutions, for example, the problem of inequality and the historical need for social inclusion, a result of the failure to consolidate the welfare state (Viciano and Martínez, 2005: 61). Overcoming inequality and pursuing inclusion for marginalized groups have been the pillars of the necessity for a new constitutionalism. Once the democratic formula for social change has been activated, the effects cannot be predicted. This new constitutionalism, according to Santos (2007: 34–35), began “when some constitutions on the continent—such as that of Colombia, where this new aspect seems to be very strong—adopted a constitutional confirmation of plurinationality, pluriculture, pluriethnicity, and interculturality,” and the features of plurinationality and interculturality are reflected in Ecuador’s new constitution.

Have the new constitutions rid themselves of nominalism, of the lack of correlation between reality and the law that criollo constitutionalism was prone to? Of course not, but for various reasons. Constituents’ expectations have only partly been translated into processes in the framework of constituted power. On one hand, the challenges raised by the new constitutions, largely broad catalogues of rights, introduce maximalist objectives that are difficult to fulfill and rarely include the necessary concrete or general guarantees, even though they strive to do so, for example, by specifically conveying their standards and establishing concentrated systems of control of constitutionality. On the other hand, the tendency of government, especially the executive branch, to rely on the legitimacy of electoral support rather than the constituent will expressed in the constitution, along with the Latin American tradition and some constitutional weaknesses, has perpetuated many of the problems that had made the new constitutions a necessity. Political personality cults and, in particular, hyperpresidentialism, although they no longer appear on paper, continue to be a reality in the countries of the new constitutionalism. Personal leadership has not been replaced by constitutional leadership as the original constituent processes seemed to propose.

From a political science perspective, Shifter and Joyce (2008: 66) remind us that designing a constitution has become the strategy for satisfying demands and at the same time consolidating power over the old elites. For that reason, “although it is designed to forge a new national consensus, a constituent assembly can have the opposite effect and further polarize a divided society. Even if the process goes smoothly, it causes us to lose sight of other priorities and has a limited effect on the major weak points, such as corruption and lack of safety.” This refusal by the opposition to accept change in large part explains the attempts to recover power through coups d’état that are traditional in Latin American political history (Venezuela, April 2002, Ecuador, September 2010, and, in a more mitigated way and yet to be clarified, Bolivia, June 2012, and Colombia, July 2012).

In the Ecuadorean case in particular, the fracture point between constituent will and exercise of constituted power translates into maintenance of old party practices such as the clientelistic allocation of resources or spheres of power and the ancestral political caudillismo (Basabe-Serrano, 2009: 381–405). An alarming incident had already occurred during the constituent process itself, in which the heavy role of the executive (Machado, 2008: 189–215) may have induced the resignation of Alberto Acosta as president of the Constituent Assembly. The distance between enforcement of the constitution and its original spirit can be clearly seen in the opposition between the indigenous organizations and President Rafael Correa despite, as León (2010: 21) states, the many shared political views typical of allies:

The discrepancies seem to increase because of the differences in perspective but also because of the political stance of some indigenous sectors that consider the approval of their entire set of proposals essential. Meanwhile, the government’s position is completely opposite, for example, in petroleum extraction or mining. The resolution of these discrepancies becomes even more complicated in that the government lacks a defined indigenous agenda for the new context and establishes goals according to the circumstances.

The clouds that hover over the area of participation should not be ignored. As Gargarella (2011: 297) asserts, “the immediate practice that followed the approval of the constitution reaffirmed each of the suspicions noted. It was not surprising that it was the President of the Republic himself who placed limits on popular participation, discouraging the citizen organization that the constitution encouraged or directly vetoing legislative initiatives aimed at launching the institutes created in the Montecristi debates.” Clearly, without an awareness on the part of government that the source of its legitimacy is the constituents’ will and acceptance of the need to strengthen the constitutional processes of change, the democratic effort could become useless or, worse, counterproductive.

Nevertheless, the fact that the constitutional processes continued to develop in the framework of the new constitutions and that the population is convinced of the possibility of advancing in the new politico-legal setting is producing new legitimacies in opposition groups, which have largely gone from being opponents of the constitution to being political opponents and therefore legitimate in the constitutional realm. In the case of Ecuador, these situations have opened the way for a rearrangement of the relationship between the political forces and the factors of power (Ortiz, 2011: 25–34) in which what is ultimately at stake is not one political option or another but rather the enforcement of the new constitution. We must not overlook the suggestion that the frequency and intensity of indigenous opposition have largely been constructed by the media, reflecting opposition to the government on the part of the press (Sánchez Parga, 2012: 69).

The Foundations of Constituted Change

The emergence of the new Latin American constitutionalism has not only translated into a deepening of constituent legitimacy in the democratic procedures with which the recent Latin American texts were formulated but also influenced their form and structure, which, without breaking with the rational-regulatory concept of the constitution (a written text organized into articles), delve into some of the concerns and even solutions of revolutionary liberal constitutionalism, in particular the strengthening of its political dimension (Viciano and Martínez, 2011: 14).

The new constitutions, because of their emphasis on the democratic principle, are faced with the often-ignored problem of the legitimacy of constituted powers and their relation to the sovereignty of the people. Innovations have been the most extensive in this realm. In the area of reinforcing legitimacy, the new constitutions are committed to democratic control over all public powers through mechanisms of participatory democracy and the elimination of the possibility of the government’s modifying the constitution (Viciano and Martínez, 2011: 19). With regard to this last aspect, the Ecuadorean constitution contains some shadows. As can be seen in the regulation of the constitutional amendment (Article 441), the government’s power to reform has not been completely eliminated. Elements of the constitution that do not alter the fundamental structure of the state, restrict rights and guarantees, or modify the procedure for reforming the constitution can be modified by the National Assembly. This is a step backward.

The provision is not as serious as it could have been and, in any case, is a substantial improvement over the 1998 Constitution. It eliminates the possibility of the National Assembly’s modifying substantial aspects of the text and includes the initiative for proposing amendments and reforms and convening a constituent assembly, and any reform can ultimately be struck down by referendum (Martínez, 2008: 287). In fact, the 2011 constitutional reform had to be submitted to the electorate, which in the end approved it and, with different majorities, the questions raised on the initiative of the president (Freidenberg, 2012: 139–141). There were five amendments and five questions about legislative decisions at the national or cantonal level that had been approved by the Constitutional Court through Resolution 001-DCP-CC-2011 on February 15. The constitutional amendments had to do with the expiration periods for pretrial custody (Article 77.9, approved 50.46 percent to 38.87 percent), alternatives to incarceration (Articles 77.1 and 77.11, approved 48.27 percent to 40.84 percent), the prohibition on communication enterprises’ or mass media’s participating in companies whose activities are other than financial or in communications (Article 312 and temporary provision 29^a, approved 47.19 percent to 41.89 percent), the creation of a transitional judicial council for the restructuring of the Judicial Council (Article 20 on the transitional regime, approved 46.15 percent to 42.56 percent), and the reform of the Judicial Council as it appeared in the constitution (Article 179, approved 46.67 percent to 41.96 percent).

Institutional redesign is an integral part of overcoming the old constitutionalism, translating, for example, into the unexpected limitation of terms by the express will of the people (recall), the inclusion of parliamentary elements, and innovation in legislatures ⁴ and the reallocation of functions among the branches of government, which go beyond their traditional tripartite division to become part of the needs of the societies in which the constitutional order will operate. The two concepts that account for this redefinition of the government power structure are the possibility for the people to decide on it and the need for societies to replace the adaptation–what Weyland (2011: 126) has called “constitutional importing”—that characterized criollo constitutionalism with a new constitutionalism that will be useful in the desired construction of a constitutional state.

The task advanced by the 2008 Constitution in particular and by the new Latin American constitutions in general is of course not easy, nor is any other type of newly coined constitutional engineering when it is confronted with enforcement on the ground. Some of these elements are unprecedented and must prove their usefulness in the arena of reality. ⁵ If they do not work or are no longer useful, this transitional constitutionalism, which is necessarily at risk of not having the expected success, anticipates an evolution toward new formulas if the people so choose. This is one of the justifications of the above-mentioned first Ecuadorean constitutional reform of 2011, when the “hundred-year” constitution had been in effect for only 30 months. Santos (2007) calls this transitional constitutionalism “experimental constitutionalism,” since it is impossible to resolve all the issues in one constitution and some must remain open, probably for another constituent assembly.

The reason for this is that certain matters that might be considered less advisable were included in the text. For example, the development of the concept of a plurinational state, which, although declared in the doctrine—as in the case of Llasag (2008: 314)—and mentioned in the first article of the constitution, does not really appear in the rest of the constitutional text or cause a sea change in institutionality or the recognition of collective rights; the absence of the notion of a truly universal citizenry, which was relinquished in the course of the debates; and the gradual nature of the development of certain rights. There is no doubt that, apart from the criticisms that can be made from various perspectives, it is the people who ultimately decide what they want and express it in the constitutional text.

Expressions of the need for service by public power pervade the constitution, beginning with the constitutional nomenclature itself, which symbolically begins with substituting “system of development” for “economic constitution” and including gender language, ⁶ even issues that delve deeply into the institutionality of the state and its role in the economy and society and are summed up in the set of systems that develop the social rights and are called the system of sumac kawsay in its Title 7. In this sense, the indigenous Andean concept mentioned in Article 8.1 of the draft constitution of Bolivia as proper living or suma qamaña is the cornerstone of public power and of much private activity.

Both the possibility and the necessity of introducing a new government design influenced the debate of the Constituent Assembly, which ultimately proposed six constituted offices in addition to the three classic branches of the state, among them the Office of Transparency and Social Control, the Electoral Office (in Title 4, “Participation and Organization of Power”), and the Constitutional Court (in Title 9, “Supremacy of the Constitution”), which are tacitly indicated as other functions of the state. In this way, as Noguera (2008: 151) states, the 2008 Constitution breaks with the traditional structure of the liberal state based on the threefold division of powers. ⁷

Regarding the new institutional design, we must emphasize the inclusion of the Office of Transparency and Social Control, a new power ⁸ debated by previous constituent assemblies but appearing here for the first time. ⁹ Article 204, which begins the chapter on this office, could not be more specific: “The people are the mandator and prime auditor of public power, in the exercise of their right to participation.” The office is aimed at promoting democratic control over the public sector and the related private sector and fostering public participation. As Noguera (2008: 146) explains, it “reflects the clear will of the constituent body to create a new alternative to the classic democratic-liberal model of political organization of the state.” It is, therefore, a response to the constant problems of the legitimacy of power and the relation between the people and the government.

The constitutional construction of the Office of Transparency and Social Control has not been free of criticism from the point of view of maximal representative democracy. For Basabe-Serrano (2009: 388), the structure of participation provided for in the constitution is inadvisable for several reasons: politically, it proposes a sui generis vision of democracy that places on the same level of participation both people who have been elected through universal suffrage and people involved through their own choice or subject to the executive. Another objection is that the so-called citizen councils will be parallel bodies to the representative entities, which means establishing tutelage over the popular will. Finally, it is suggested that the new constitution will erode the will of the citizenry, subjecting it to the decisions of small groups. From another point of view, Gargarella (2011: 296) criticizes this office “for restraining or outright diluting, instead of guaranteeing and promoting, citizen participation, which becomes hidebound in a series of bureaucratic state mechanisms.” Apart from the fact that reality will put the wisdom of the assembly’s decision to the test and that the constitution can always be modified, many of these criticisms are speculative and fail to take into account that the constitution leaves open the means of election of members of this office, which could easily take place through a process with full democratic legitimacy. Article 207 states that the selection of its members must occur among the candidates proposed by the social organizations and the citizenry and that the organization of the process of selection must be competitive, merit-based, and responsible to the Electoral Office. Up until now, the duties of the office have focused on fighting one of the main triggers of the constituent process: corruption. The political context, however, does not facilitate this task or the judicial reform envisioned by the new constitution, and they have been largely closed down in later developments (PADH, 2012: 38–40).

Another criticism that seems difficult to sustain is that the new constitution increases the power of the president to the detriment of the other state functions. Thus, for Verdesoto (2009: 206), the viability of the constitutional proposal depends on centralization—political (hyperpresidentialism), economic (primary role in planning), and territorial (redefinition of subnational jurisdictions)— and augmenting the material base of the state (attracting surplus). In a similar vein, Basabe-Serrano (2009: 389–390) asserts that the new constitution increases the power of the president at the expense of the legislative branch and the opposition, giving the executive the ability to initiate urgent legislation on economic matters (Article 142), veto bills, and even propose an alternative text that can only be changed by a qualified majority (two-thirds [Article 140] of the legislature), in addition to other budgetary functions. The opposition has promoted the idea that the constitution would eliminate the legislative branch and place state agencies under the president’s control (Hurtado, 2012).

While an exhaustive analysis remains to be undertaken, we must point out that the hyperpresidentialist argument ignores three circumstances that must be taken into account: (1) Many of the duties of the president mentioned are part of the range of functions common to executives in the various systems compared. (2) The constitution includes elements of control over all operations in general and over the executive in particular that were not present to that degree in the earlier one (for example, the recall). (3) The creation of the Office of Transparency and Social Control to control the activities of the state and promote participation is designed to establish a greater base of social legitimacy in public decision making and to maintain constant citizen monitoring of all government activity. In addition, the constitution provides for the resolution of serious problems through what is known as the muerte cruzada (decree of dissolution): the possibility of the National Assembly’s deposing the executive and calling for elections for both institutions (although, as Gargarella [2011: 296] points out, this can take place only once, requires a two-thirds vote, and entails the “death” of the position of its very promoters). All in all, the theory that the constitution is hyperpresidentalist does not appear to have solid arguments in its favor.

To all of this we must add a novelty in the constitution of very great importance: the change from a vague system of control to one of the concentrated control of constitutionality. In contrast to the 1998 Constitution, which in Article 274 authorized any judge to declare unenforceable any code he or she considered unconstitutional, Article 248 of the new constitution introduces a substantial change. The judge must refer the code whose constitutionality is questioned to the Constitutional Court, which must make a determination within 45 days. Ávila (2011: 65) asserts that this is a mixed model, since “the processing of a case may be discontinued only when the judge has a reasonable doubt about the constitutionality of a provision, which means that when, during the conduct of a trial, a judge finds a provision that is evidently unconstitutional, the constitution must be directly enforced.” But this is precisely the mechanism of concentrated systems: the judge, who normally enforces the constitution, cannot decide not to enforce a provision that he or she considers unconstitutional on his or her own: the declaration of unconstitutionality is solely the responsibility of the Constitutional Court. This is clearly an innovation of prime importance. It is a guarantee of the constitutionalization of the legal system and ultimately represents the intent that the constitution be hegemonic, superior to the government.

In turn, it is important to emphasize the inclusion of elements of democratic legitimacy in the Constitutional Court, as well as the identification of the principal criteria for interpretation of the constitution (Martínez, 2008: 286). The grounds for legitimacy lie in the election of judges by indirect democratic formulas with the participation of the legislature, the executive, and the Office of Transparency and Social Control. The search for mechanisms of control over its conduct is determined not solely by the various responsibilities provided for in the constitution (Article 431) but also by the criteria for interpretation that the Constitutional Court must apply in the exercise of its functions. Thus Article 427, following some comparative precedents, ¹⁰ introduces an element of control of interpretation:

The constitutional provisions shall be interpreted by the literal meaning of their wording that is mostly closely in line with the constitution as a whole. In the event of any doubt, it is the most favorable interpretation of the full and effective force of rights and the one that best respects the will of the constituent, in accordance with the general principles of constitutional interpretation, that shall prevail.

What we have here is not a numerus clausus of interpretative criteria but specific guidelines for enforcement designed so that the interpretation will not distort the advances of the constitution as has happened in the past in different historical contexts.

Finally, the regulatory effort of the constitution is grounded with unusual force in the power it grants to the Constitutional Court to act in the face of unconstitutional actions by the state, even regulating and executing the observance. Thus, Article 436.10 determines that it is up to the Constitutional Court to

declare the unconstitutionality incurred by state institutions or public authorities that fail to observe, either totally or partially, the mandates contained in constitutional norms, within the time-limits set by the constitution or within the time-limits deemed to be reasonable by the Constitutional Court. If this failure persists, after this time-limit has elapsed, the Court shall provisionally issue the regulation or enforce the observance, in accordance with the law.

This provision has not been free of criticism. For Sagüés (2009: 74), for example, the intention to affirm the normative force of the constitution prevails when inaction by the legislator, who could be any authority that must rule on a norm, prevents it from going into effect. This kind of unconstitutional anesthesia of the constitution is thus overcome, in a subsidiary and provisional way, by the Constitutional Court. This possibility presumes a hypothetical violation of the principle of the division of power, since the Constitutional Court would play the nomogenetic role initially assigned to other bodies by the constitution (although the author acknowledges that this is not a violation of the constitution, given that the possibility is envisaged within it).

In addition to the fact that this would be a conceptual rather than a regulatory infringement, the constitutional text itself includes as a condition that the failure exist and persist—that if the Constitutional Court did not act the constitution would be violated by a state entity’s illegitimate action. And in fact the constituent assembly preferred a conceptual violation of the principle of division of powers to a vulnerability of the constitution in its enforcement, given that questioning the constitution as the supreme canon of the legal system would never be justifiable. This, of course, as Grijalva (2008: 261) demonstrates, does not make the highest authority of constitutional interpretation a superpower either in the legitimacy vested in it by the constitution or in the mechanisms of control it contains. There are legal and political factors that limit the court, such as the explicit wording of its powers and the need for soundness of constitutional jurisprudence.

Lastly, it is worth remembering that constitutional innovation expects change at the top of the legal system as an immediate result. Its express anchoring is found in the resolution for the repeal of the 1998 Constitution and all the unconstitutional preconstitutional canons, stipulating that “the remainder of the legal system shall remain in effect as long as it is not contrary to the constitution.” Likewise, there are constitutional provisions on a series of needs for legislative innovation and adjustment that are appropriate less because of the unquestionable regulatory nature and direct implementation of the constitution of the constitutional state than because of the usefulness of specific legislation that fulfills the needs for regulatory development and enforcement of the constitution. This projection is specifically reflected in the first transitional provision of the constitution, which includes a maximum overall time limit for constitutional development—the end of the first term of the National Assembly—along with particular provisions for certain laws. Among them as a priority is the electoral law, the approval of which must take place within 120 days of the effective date of the constitution. The intent of the Constituent Assembly, logically, was to complement the transitional system with specific electoral codes, but ultimately this did not occur. Instead the legislature included a final provision in the Organic Electoral and Political Organizations Law, Code of Democracy, of April 9, 2009, that postponed its entry into effect “despite its publishing in the Official Registry,” until after the declaration of the official results of the general elections envisaged in the transitional system.

Constitutional Innovation: Sumak Kawsay to Achieve an Emancipated Democracy

The sumak kawsay system, set forth as an axiological framework for rights and obligations in a society in which the life process of human beings has a holistic meaning for both their development as persons and their contribution to the world, is surely one of the most significant inclusions of the new Latin American constitutionalism. The concept itself is not unique. The similar Bolivian suma qamaña is part of a constitution that, although approved by Bolivians several months after the Ecuadorean constitutional referendum, was widely known by the Ecuadorean constituents in draft form, ¹¹ and the doctrinal bases of the advance in the two countries were very similar (Acosta, 2008a: 207). Sumak kawsay, as a holistic concept of the person in nature, can only be understood in the context of overcoming the individualistic, even social, approach in what Gudynas (2009: 34–46) has called a “biocentric shift,” whose backbone is the greatest constitutional innovation of the Ecuadorean text: the recognition of the rights of nature. As Gudynas maintains, affirming that nature has its own rights separate from human appraisal goes beyond the classic approach incorporated in the so-called third-generation rights. Nature goes from an object of rights assigned by human beings to a subject of rights and therefore possessed of intrinsic value. It can no longer be conceived of solely in terms of its utility for human beings, as a set of assets and services for use or exchange, or be treated as an extension of the rights of human property or possessions, individual or collective. This is ultimately a challenge to the general theory of personality, and because of the novelty of the concept, its intrinsic limitations (mainly the impossibility of nature’s exercising its rights), and the constitutional attempts to find solutions to these limitations, a specific theoretical and practical effort was required to make the constitutional provision viable.

The implications of sumak kawsay—and along with it the complete charter of rights stipulated in the constitutional text—as a government objective are, therefore, extremely important and condition the actions of the public powers. It is presented as a basis for government action because this is, first of all, the decision of the Constituent Assembly concerning the societal project that is inherent in the constitution. The Constituent Assembly proposed a broad debate on this both in its committees and during the plenary. Along with some doctrinal contributions, the axiological design of sumak kawsay as the core of decision making in both social rights and the economic constitution was a consensus construct in the Constituent Assembly and one of the pillars of the development of rights and social duties.

Sumak kawsay is, for this reason, not just an objective of the public powers but a limit to governance. Acting against the constitutional provision would be violating the constitution and would activate all the mechanisms designed to mitigate this situation. In this sense, sumak kawsay, as Acosta (2008b: 43) asserts, shaped as “a philosophy of life, paves the way for building a liberating and tolerant project, without harm or dogmas, a project that, having collected many stories of resistance struggles and proposals for change, positioned itself as a starting point for establishing a sustainable society in all realms.” The great challenge Ecuadoreans have before them is to create the conditions for a true implementation of sumak kawsay, which could collide with both the use of extractivist policies that exhaust natural resources and pollute and the very nature of historical change in the political process (Varela, 2010: 145). Ultimately, the constitutional problem in Ecuador is not, once again, the constituents’ will, which is clearly evident, but rather the determination of policies arising from governments once the constitution goes into effect.

Conclusions

The 2008 Constitution is among the new Latin American constitutions born out of democratic processes, the fruit of a process that resulted in the modification of the supreme order of the legal system. It is part of the democratic reform since 1991 that has been called the new Latin American constitutionalism. The Ecuadorean constituent process built upon the mobilization of popular sovereignty and the originary nature of the power of the people. It moved from the 1998 Constitution toward an improved text that serves the interests and objectives of the Ecuadorean people and fully expresses their will, a text whose legitimacy essentially lies in its being a product of constituent power but also in the capacity for legal transformation that it introduces.

The constitution creates a structure that goes beyond a broad charter of rights and the organization of power to produce a democratization of government founded on citizen participation. The creation of the Office of Transparency and Social Control is the best possible expression of the need to utilize constituent power and the democratic constitution as a mechanism for reforming government. In addition, the constitutional text establishes a series of common objectives for the society organized around the inclusion of an axiological-constitutional system (sumak kawsay) that gives the constitutional mandate a life of its own and creates a novel institutionalism aimed at consolidating a better government and direct enforcement of the constitutional standards.

Many of the criticisms that have been leveled at the new constitutions in general and at Ecuador’s in particular (violation of the principle of powers, hyperpresidentialism, loyalty to a partisan political program) do not sufficiently take into account the need expressed in the constitutional texts to increase the democratic legitimacy of public decisions within the constitutional framework—in other words, within a limited structure of powers and with a political objective democratically determined by the people. An example is the fact that the ability of the government to modify the constitution is limited or eliminated.

The real challenge facing the new Ecuadorean constitutional system is the enforcement of a complex, exhaustive constitution, generating dynamics previously unknown that may displease part of the constituted power and confuse institutionalism. The maximalist desires of the constitution, which were necessary to respond to the motivations of the constituent process, require a context for its implementation that involves factors beyond the legal ones. Ultimately, this is a constitution whose enforcement is weakened by a situation with obstacles and difficulties that initiated the constituent process but also carries a high risk of failure. What was once a significant challenge—the constituent process—has become even more difficult in the framework of constituted power and constitutional development.