The Basic Structure of the Ecuadorian Legal System and Legal Research
By Maria Dolores Miño
Maria Dolores Miño has a Law Degree from Universidad San Francisco de Quito , with Minors in International Affairs and International Human Rights Law. She has worked as a junior attorney at the Office of the Special Rapporteur of Freedom of Expression of the Inter-American Commission on Human Rights ( IACHR) , and as an assistant to the Ambassador of Ecuador before the OAS. Currently, she works as Chief of Staff to the Vice minister of the National Secretariat for Migration- SENAMI – in Ecuador. She will start her L.L.M in Human Rights and Humanitarian Law at the American University’s Washington College of Law in January 2010. Ms. Miño has previously collaborated with this publication in September, 2007 with the article “ The Basic Structure of the Ecuadorian Legal System and Legal Research”.
NOTE: Due to the many changes that the 2008 Constitution has brought in Ecuador, the author strongly suggests reading the previous version of this article, so that readers can compare and contrast the reforms.
Published September 2009
(Originally published on September/ October 2007)
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Table of Contents
I. ECUADOR’S 2008 CONSTITUTION: REFOUNDING THE STATE UNDER THE STANDARDS OF THE NEW SOCIAL REVOLUTION
2. Fundamental Rights Enshrined in the 2008 Constitution
3. Legal Remedies Available for the Protection of Fundamental Rights
c. Access to Public Information
d. Habeas Data
f. Extraordinary Action of Protection
II. GOVERNMENT STRUCTURE AND PUBLIC FUNCTIONS
1. Requirements to be a congressman
1. Requirements to be President
3. Public Force
VII. POLITICAL DIVISION OF THE STATE´S TERRITORY
VIII. MONETARY SYSTEM
IX. CREATION OF LAWS AND RATIFICATION OF INTERNATIONAL TREATIES
2. Types of Law
3. Procedure for the Formation of the Law
4. Validation of International Covenants
XI. THE OFFICIAL REGISTER (GAZETTE)
XII. ONLINE INFORMATION OF THE ECUADORIAN LEGAL SYSTEM
I. ECUADOR’S 2008 CONSTITUTION: REFOUNDING THE STATE UNDER THE STANDARDS OF THE NEW SOCIAL REVOLUTION
The Republic of Ecuador is ruled by the 2008 Constitution [1] .
Ecuador adopted a new Constitution on October, 2008, trough a highly participative consultation process in which Ecuadorians democratically decided to rebuild the country’s legal, political and social structure.
The fundamental change brought by the 2008 Constitution is the adoption of the neo- socialist doctrine which will lead national norms, plans and policies. Under these standards, the role of the State changes, and so do the rights and obligations of citizens.
1. General Principles
Ecuador is a constitutional State that functions under the principles of the fundamental rights and social justice.
Ecuador is self defined as a sovereign, unitary, intercultural, plurinational State. Spanish is the official language. Quichua and shuar are official tongues to be used in intercultural exchange.
State’s duties are to foster and protect Human Rights, strengthen national sovereignty and unity, eradicate poverty, foster development and a culture of peace.
2. Fundamental Rights Enshrined in the 2008 Constitution:
Human Rights are guaranteed to every person community, nationality or collective group inside the country with no discrimination, as established in the Constitution and other International Covenants that Ecuador has ratified. The rights enshrined in these instruments can be directly demanded in any national court, even if there is no law to regulate their exercise.
Ecuador recognizes and obliges itself to protect and guarantee the full exercise of Human Rights to every person within its jurisdiction. Aliens have limitations as to the exercise of political rights.
The Constitution prohibits statutes of limitation for crimes against humanity, humanitarian law and gross violations on human rights. The Ecuadorian constitution also recognized a broad list of economical and social rights that must be guaranteed through public policies. It also enshrines norms relating to indigenous peoples and afro Ecuadorian communities, in which self determination, self government, participation and indigenous justice is recognized and protected.
The 2008 Constitution has introduced several norms that broaden the scope of rights enshrined and protected by the State. Perhaps, the most outstanding reforms are those that recognize Nature as a subject of fundamental rights, the prohibition of discrimination due to migratory status, the right to a “good living” (buen vivir ), and the recognition of the right to human mobility, which includes emigration, immigration, transit and the right to return to one’s state in a voluntary, dignified fashion.
As fundamental rights are enshrined in Ecuador’s Constitution, correlative obligations are also established to all citizens. One remarkable responsibility is the standard set by indigenous peoples “ama killa, ama llulla, ama shwa” (one must not be lazy, one must not lie, and one must not steal).
3. Legal Remedies for the Protection of Fundamental Rights
The legal remedies available in Ecuador have grown in number from three to six under the 2008 Constitution, as follows:
- Protection Remedy: Formerly known as amparo, this remedy seeks to provide protection of fundamental rights before actions of any public authority; for the wrongful application of public policies, and for actions of non-state actors that act under its acquisition.
- Habeas Corpus : Every person who believes to be unfairly deprived of his personal liberty may file a habeas corpus remedy, by himself or through another person. Habeas corpus can be filed before any judge, who must summon to a hearing within 24 hours to determine the legality of the detention. Authorities must demand the immediate presence of the petitioner, and the order through which he was arrested in order to determine the legality of his arrest, and the conditions of the prisoner.
- Access to Public Information : This remedy seeks to provide to any person, organization or group, the effective access to public information when its request has been wrongly denied or ignored. It can be filed even if the authorities have alleged that such information is of a reserved nature, or involves matters of State security, in order to prove the veracity of such arguments. More information on the right to access to public information can be found in the Transparency and Access to Public Information Law.
- Habeas data: Every person has the right to access to documents in public and private institutions when these documents include personal information about that person, through established procedures that guarantee that any mistake or misuse of this information is duly corrected.
- Non- compliance Action : This remedy seeks to oblige authorities to comply with national law and decisions of national and international tribunals when such decisions contain an express mandate to do or not to do something.
- Extraordinary Action of Protection: This remedy can be filed against final decisions of national courts that have violated rights enshrined in the Constitution. This remedy should be filed after all other remedies have been exhausted, unless the person is somehow impeded to exhaust them due to negligence, delay or a pattern in practice of unjustified denial of national authorities.
To find out more on the procedures of protection remedies, please visit the website of the Constitutional Court of Ecuador .
4. Democratic Procedures :
There are five basic procedures for democratic exercise within the Ecuadorian constitution:
- Democratic Elections elect public officials as independent candidates or through those proposed by political parties, as arranged by the law.
- Public Consultations to reform the Constitution or on matters of grave importance to the country.
- Revocation of Mandate to local authorities for acts of corruption.
- Popular normative action for the creation of legal norms.
- Constitutional Reform Proposal.
I I. GOVERNMENT STRUCTURE AND PUBLIC FUNCTIONS
Every institution and public officer appointed by law shall not have any other attribution than those previously established by law. There shall be accountability for every action carried out by public officials.
Public Administration is organized in a decentralized fashion.
The Government Structure is divided as follows:
1. Bodies of the Legislative, Executive, and Judicial Branch .
2. Bodies of Transparency and Social Control.
3. Electoral bodies.
4. Bodies that form the sectional independent regimes (municipalities and provincial councils)
5. Other bodies created by the Constitution or by law in order to provide public services or
develop economic activities of the State.
III. THE LEGISLATIVE BRANCH
The National Assembly is the main authority of the Legislative Branch. It is established in Quito, but in cases of emergency it can meet in any other city within national borders.
It is formed by representatives who are elected as follows:
1. 15 national representatives;
2. 2 representatives for each of the 24 provinces
3. 1 representative for every 200.000 inhabitants.
1. Requirements to be a Congressman
To be an Ecuadorian congressman, one must be Ecuadorian by birth, be entitled to the exercise of its political rights, be at least 18 years old, and be able to fully exercise political rights.
IV. THE EXECUTIVE BRANCH
The President exercises the Executive Function, and is chief of State and Government responsible for public administration. The term of his mandate lasts for four years, but can be reelected immediately.
1. Requirements to be President
Being Ecuadorian by birth, being able to fully exercise political rights and be at least thirty –five years old when proponed as candidate. These same conditions apply for the vice-president.
Both president and vice-president are elected by absolute majority of votes, in a universal, equal, direct, and secret way.
An elected president may end his duties before term for the following reasons:
For presenting a resignation request to the National Congress
Physical or mental inability (must be proven and declared by the National Congress)
Destitution due to a political trial
Abandonment of duties, as declared by the National Congress
2. Ministers of State
They can be freely appointed or removed by the President, and will represent him in the areas they have been assigned to. They are responsible for the acts and contracts that have been produced while in function.
3. Public Force
The public force includes both The Armed Forces and the National Police. Their main duties are to protect national sovereignty, independence, and integrity. They have to protect public order and security. The President is Commander in Chief of both the Police and Armed Forces. In case of emergency, the President can pass these duties to someone else.
4. National Equality Councils
These bodies are responsible for the guarantee and protection of the fundamental rights enshrined in the Constitution and international treaties in the elaboration of policies involving vulnerable groups. Both public officers and members of the civil society can be part of such Councils.
V. THE JUDICIAL BRANCH
Only the bodies of the Judicial Branch can exercise jurisdiction. The Judicial System must be unitary.
A remarkable reform that the 2008 Constitution brought was the abolishment of Military and Police Tribunals, which had been forbidden since the 1998 Constitution, however this disposition never came into force. Ecuadorian justice recognizes the right of indigenous and peasant communities to exercise their own justice system. Also, it recognizes other mechanisms of conflict resolution, such as peace judges and mediation.
1. General Principles
Ecuadorian Judicial System guarantees due process, due diligence, and efficiency. Justice cannot be denied because of the lack of formalities.
Every act produced by members of the Public sector can be appealed in the ordinary justice system, as established by law. The members of the Judiciary are entitled to the due safeguards for the exercise of their functions; therefore, stability in office.
2 . Bodies of the Judicial Branch:
a. National Court of Justice, which has jurisdiction in all the State’s territory. It is located in Quito and acts as a Court of Cassation through specialized chambers, according to Law.
b. Provincial Courts, which have jurisdiction over the territory of each province. The National Court will create provincial courts as needed.
c. Tribunals and Judges appointed by law, whose independence is guaranteed by the State and can only be subject to the Constitution and the Law.
d. The National Council of the Judicature, which is an administrative and disciplinary body of the Judiciary.
e. Public Defendants’ Office; an independent body of the Judicial Branch responsible for providing legal assistance to those who may not afford the services of a private lawyer, in order to protect the right to a fair trial.
f. State Attorney’s Office: an independent body that investigates criminal accusations.
The 2008 Constitution introduced witness protection programs as part of its duties to protect the right to a fair trial.
To find more about Ecuadorian Criminal Procedure, see the Criminal Code and the Procedural Criminal Code .
VI. SOCIAL REHABILITATION
The Social Rehabilitation system will pursue the reform of inmates to capacitate them for a future incorporation back to society.
Detention facilities will have enough and adequate resources to ensure physical integrity of the inmates. They will be managed by non profit organizations, under the supervision of the State.
People who have been deprived of their freedom, but currently are charged and subject to a criminal procedure, will be detained in temporary detention facilities, separated from those who have been declared guilty of criminal charges. These other inmates will be kept in social rehabilitation facilities. No one may serve time in places other than these facilities.
Under the 2008 Constitution, people who have been deprived of liberty but have not a firm judicial decision yet, are entitled to exercise their right to vote.
VII. POLITICAL DIVISION OF THE STATE’S TERRITORY
In order to make administration efficient, the Ecuadorian territory is divided into regions, provinces, cantons, and parishes, which may interact and join for a proper administration of their natural and economical resources.
The independent sectional regime includes both city halls and provincial councils (which are the political-administrative bodies of cities and provinces respectively), and must generate their own economical resources. However, the States must give part of the national budget to these jurisdictions, depending on their population.
Other parts of the Ecuadorian territory are subject to special forms of political administration regimes. Such is the case of the province of Galapagos , which is under such regime due to its particular environmental and demographic features.
VIII. MONETARY SYSTEM
Even when the 1998 Constitution established that the Central Bank of Ecuador was the body entitled to administrate and lead monetary policies, since the adoption of the dollarization scheme, which determined that U.S. Dollars would be the national currency, the main functions of the Central Bank have been to guarantee the due functioning of the “dollarized” economical regime and to foster the economical growth and well being of the country.
The 2008 Constitution has not recognized dollarization as the monetary system of the State, nor has it banished it. Nevertheless, dispositions under article 302 of the Constitution establish that the Executive Branch will rule monetary policies, which will be executed by the Central Bank.
IX. CREATION OF LAWS AND RATIFICATION OF INTERNATIONAL COVENANTS
1. Competence Ratione Materiae:
The National Assembly is entitled to draft and approve laws in the following subjects:
- Fundamental Rights and Freedoms
- Typify felonies and establish sanctions
- Create, modify and suppress tributes
- Establish competences to the bodies of the State
- Modify the political and territorial division of the State.
2. Types of Law
a. Organic
These regulate the organization and activities of the main bodies of the Government, and the exercise of fundamental human rights and freedoms.
b. Ordinary
All the laws that are not covered by the definition above can be considered as ordinary.
Organic law prevails over ordinary law, and must be approved, reformed or abolished by absolute majority of the National Assembly.
3. Procedure for the Formation of the Law
Only the Representatives of the National Assembly, the President, the Constitutional Court, the State’s Attorney, the State’s Prosecutor, and the Public Defendant, citizens represented by o, 25% of the national population is entitled to present projects of Law.
Only the President is entitled to present projects in which taxes are created, modified or suppressed.
Eight days after the presentation of the project, the President of the Assembly will distribute it among the senators and will order to publish an abstract. It will be sent to the pertinent Commission, which will start the required procedure to study it. Civil society may present observations before the Commission.
The Commission will present a report, from which the Assembly will hold a first debate in which relevant observations may be presented. Then it will return to the Commission for evaluation and a presentation of a new report.
Once approved, the project will be sent to the President for approval or objection. If there is no objection, the Law will be published within ten days in the Official Register for validation. If it is partially approved, the Congress will have 30 days to analyze it, and debate it once to accept the objections and mend the project, or ratify the one originally approved. In both cases, the Congress will send the Law to the Official Register for its publication. If the Congress does not pronounce itself in regard of the presidential objection, it will be understood that it has been accepted. The President then will send it for publication in the Official Register.
If the President objects the project, it will be archived and analyzed one year later.
To find out more about the projects that are currently analyzed in Ecuadorian National Congress, click here .
4. Validation of International Covenants
The National Assembly will approve or disapprove the ratification of international covenants as established by Law.
To see more on the international covenant ratified by Ecuador, see the Treaty Database of the Ministry of Foreign Affairs of Ecuador.
X. THE CONSTITUTIONAL COURT
The Constitutional Court has national jurisdiction and functions in Quito. It is formed by 9 chairmen, each with one replacement. They perform their duties for four years and may be reelected. They are to know about the unconstitutionality or certain administrative acts produced by members of the Public Administration. The Constitutional Court has the power to stop provisionally or partially, all its effects. It will also attend unconstitutionality requests on law projects and suspend totally or partially their effect. It can hear as a court of appeal, those resolutions in which the constitutional mechanisms have been denied. It has to establish the coherence between international treaties and the constitution, for further ratification. ( Dictaminar de conformidad con la Constitución, tratados o convenios internacionales previo a su aprobación por el Congreso Nacional .) However, decisions taken by the Judiciary are not subject to revision from the Constitutional Court.
All the resolutions of the Constitutional Court are published in the Constitutional Gazette .
To find out more about the Constitutional Court, see the official website .
XI. THE OFFICIAL REGISTER (GAZETTE)
The Official Gazette was first created at the end of the XIX century. Until 1998, it depended directly on the Executive Branch. In this year, the newly drafted Constitution established that it would depend on the Constitutional Court until a proper legal background was set. The material version of the daily issues of the Official Gazette is printed at the Editora Naciona l, Quito.
The Official Gazette publishes daily every Law, Decree, Resolution, and any other legal modification product of a public institution. Such institutions send a transcript of the legal text to be printed to the Director of the Official Gazette. After due corrections, they are printed.
Kinds and Timing of Official Publications:
|
OFFICIAL GAZZETE / Registro Oficial ORDINARY ISSUE |
OFFICIAL GAZZETE ADITIONAL ANEXES |
SPECIAL ISSUES |
MONTHY INDEX |
|
Issued every day, numbered from one and so on, and starting from the first day of every presidential period. |
Issued as needed. It has the same number of the Official Gazette it completes. |
Issued when documents are especially large. Numbered from one and so on, at the beginning of every presidential period |
Issued on the tenth day of the next month. |
Both the electronic and printed version of the Official Gazette is only available by subscription. However, most of them are available at Revista Judicial .
XII. ONLINE INFORMATION ON THE ECUADORIAN LEGAL SYSTEM
Ecuadorian legislation is officially published (paper) in the “Registro Oficial” (Official Gazette).
These daily publications can be found online .
The official website of the Ecuadorian National Assembly has a large list of recently approved laws and legal projects that are currently being analyzed and the status of each inside the Legislative Branch.
In the official webpage of the Executive Branch, presidential decrees and ministerial decisions can be found. Also, it keeps a regular update of relevant President’s activities.
The official website of Ecuadorian Judiciary – Ecuadorian Judiciary contains information on actual processes to be decided, links to all the bodies of the Judiciary, the legal background that rules the Judiciary, and contacts in general.
The official website of the National Court of Justice contains general information on activities, contacts, and members.
Universidad San Francisco de Quito- Colegio de Jurisprudencia
Pontificia Universidad Católica del Ecuador- Facultad de Jurisprudencia
Universidad Central del Ecuador- Facultad de Jurisprudencia, Ciencias Políticas y Sociales
Revista Judicial del Diario la Hora
Pagina Oficial Estructura y Administración del Estado ESTADE
Colegio de Abogados de Pichincha
In these stores one can find most legal Codes and Legislation, as well as many other books on Law.
There are very few publishers of the Ecuadorian Codes, Laws, etc. However, the two that are most trusted and frequently used by students and lawyers are:
Corporación de Estudios y Publicaciones
GENERAL INFORMATION ON ECUADOR
For general information and statistics, see the official webpage of the Ministry of International Affairs and Ecuador Online .
[1] The 2008 Constitution entered in force in October 20 th , 2008, and was Publisher in the Official Diary (Registro Oficial) No. 449. To access the complete text of the Constitution, go to http://www.asambleaconstituyente.gov.ec/documentos/constitucion_de_bolsillo.pdf .