The Basic Structure of the Ecuadorian Legal System and Legal Research

By Juan Andres Fuentes

Juan Andres Fuentes is a lawyer and researcher, who is currently committed to making a career as an international, comparative and foreign law reference librarian. He is pursuing a master’s degree in Library Science at University of North Texas and is expecting to graduate in December 2021. Fuentes is fluent in English, Spanish and French and he has accumulated relevant experience in different capacities at the Peruvian Departments of State and Treasury, NGO’s, and the International Court of Justice in the Netherlands. Moreover, Juan-Andres has written legal articles in Spanish, French and English, which were published in the US, France, and Peru. In 2020 he has been awarded the AALL George A. Strait Scholarship and he is presently part of the international law librarian project, Monitoring the Legal Response to COVID-19 in Latin America and the Caribbean.

Published March/April 2021

(Previously updated by Maria Dolores Miño in September 2009 and in April/May 2015)

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1. Introduction

The Republic of Ecuador, located in the northwest part of South America, gained independence in 1822 as part of Gran Colombia (which included Panama, Venezuela, and Colombia), from which it withdrew in 1830.[1] Ecuador has a population of approximately 18 million inhabitants. Its official languages are Spanish, Kichwa, and Shuar. Ecuador occupies a territory of 283,561 square kilometers, which spans from the coast of the Pacific Ocean to the Andean mountains.[2] Its territory also includes the Galapagos Islands, famous for being one of the world’s greatest marine reserves.[3]

Currently, Ecuador is an active member of the international community. It holds membership in the Organization of American States, the United Nations, the Andean Community, and the World Trade Organization, in addition to other regional and international organizations.[4] Ecuador can litigate before the International Court of Justice[5] and the International Tribunal of the Sea.[6]

2. Legal System

Ecuador’s legal system is based on the civil law system, which relies on binding, written laws, not on judicial precedents. Ecuador is currently ruled by the 2008 Constitution, which was adopted after Ecuadorians democratically agreed to rebuild the country’s legal, political, and social structure. The Constitution came into force on October 20, 2008, abrogating the 1998 Constitution.[7] In Ecuador, voting is mandatory for persons between 18 and 65 years old.[8]

Ecuador is a constitutional state that functions under the principles of the respect of fundamental rights and social justice. It is self-defined as a sovereign, unitary, intercultural, and plurinational state. The state’s duties are to foster and protect human rights, strengthen national sovereignty and unity, eradicate poverty, and promote development and a culture of peace, among others.

2.1. Fundamental Rights Enshrined in the Constitution

Human rights are guaranteed to every person or group within the country, as established in the Constitution and other international instruments ratified by Ecuador. The South American country gives special priority to the rights to education, water, food, social security, and health. According to the Constitution, the rights enshrined in these instruments can be directly enforced before any civil, administrative, or judicial officer, even if there is no law to regulate their exercise.[9]

Ecuador 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. Moreover, the Constitution prohibits statutes of limitation for crimes against humanity, humanitarian law, and gross violations on human rights. The Constitution also recognizes a broad list of economic, political, social, and cultural rights that must be guaranteed through public policies. It also enshrines provisions relating to indigenous peoples and Afro-Ecuadorian communities, in which self-determination, self-government, and participation are protected.

The 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 “good living” (which includes rights such as the right to water and the right to a healthy environment), and the recognition of the right to human mobility (i.e. emigration, immigration, transit, and the right to return to one’s state in a voluntary, dignified way).[10]

As fundamental rights are enshrined in Ecuador’s Constitution, correlative obligations are also established to all citizens in Article 83. One remarkable responsibility is the standard set by indigenous peoples: “ama killa, ama llulla, ama shua” (one must not be lazy, one must not lie, and one must not steal).

2.2. Legal Remedies for the Protection of Fundamental Rights

Protection Remedy (formerly known as amparo) seeks to provide protection of fundamental rights before actions of any public authority (except for national courts) for the wrongful application of public policies and for actions of non-state actors that act under its acquisition.

Habeas Corpus: Any person who believes they have been unfairly deprived of their personal liberty may file a habeas corpus remedy themselves or through another person. Habeas corpus can be filed before any judge, who must then summon a hearing within 24 hours to determine the detention’s legality of a person. In the scenario that there is an arbitrary detention, immediate release shall be ordered.

Access to Public Information: This remedy seeks to provide 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 reserved, or any other similar classification, in order to prove the veracity of such arguments. The definition of what is considered public information, its procedure, and its exemptions are developed in the Organic Law of Transparency and Access to Public Information.[11]

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 (or not to) take a certain action.

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 must be filed after all other remedies have been exhausted, unless the person is somehow impeded to exhaust them due to negligence, delay, or unjustified denial of national authorities.

To find out more on the procedures of protection remedies, please read an article by Hoyos and Blacio.[12]

2.3. Democratic Procedures

There are five basic procedures by which the Ecuadorian population can directly participate in its democratic system:

  • democratic elections to elect government officers in public elections, as dictated by law
  • public consultations, known as referendums, to reform the Constitution or on matters of grave importance to the country[13]
  • recall of elected authorities after their first year in office and before their last year[14]
  • initiative to propose the creation and amendment of legislation
  • constitutional reform proposal[15]

3. 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 officers. Public administration is organized following the principle of decentralization. The essential government structure is divided as follows.

3.1. The Legislative Branch

The National Assembly, constituted by one single house of representatives, is the main authority of the legislative branch. It has 137 members to date, which are elected for a four-year term, and it is established in Quito. In case of emergency, the National Assembly can meet in any other city within national borders.

To be a member of the National Assembly, the candidate must be Ecuadorian by birth, entitled to fully exercise their political rights, and at least 18 years old. The National Assembly is entitled to draft and approve laws in matters such as the following subjects:

  • regulating the exercise of fundamental rights and freedoms
  • categorizing felonies and providing for their sanctions
  • levying, amending, or eliminating taxes
  • establishing competences to the existing bodies of the state
  • modifying the political and territorial division of the state

It also has duties such as

  • granting amnesty for public crimes and pardons for humanitarian reasons
  • authorizing impeachment of the President
  • adopting the budget of the state

There are two types of law:

  • organic laws—laws that regulate the organization and activities of the main bodies of the government, the exercise of fundamental human rights and freedoms, and the electoral system
  • ordinary laws—all laws that do not require a qualified majority by the National Assembly

Organic laws prevail over ordinary laws, and they require an absolute majority of the National Assembly to be approved.

3.1.1. Initiative to Submit Bills

Besides the representatives of the National Assembly, the President, the Constitutional Court, the Attorney-General’s Office, the Office of the Human Rights Ombudsman, the Office of the Attorney for the Defense of the People, and groups consisting of at least 25% of the national population are entitled to present bills.

This type of bill must be presented with a proper explanation of its grounds, the list of articles that are being proposed, and those that would be amended or abrogated. The president of the National Assembly has the duty of distributing the bill to members of the legislature, and to its corresponding committee(s) for debate.

Once the bill is approved, it is sent to the President for approval or objection. After its approval, or if there is no objection by the executive, the law will be enacted and published. More information about bills currently being analyzed in the National Assembly can be found on the Observatorio Legislativo website.

3.1.2. Ratification of International Treaties

The President of Ecuador signs or ratifies international instruments and treaties. Based on their content, there could be a need of prior approval by the National Assembly. Approval is necessary for matters such as national delimitation, commerce agreements, and rights and guarantees established in the Constitution. In case of their denunciation, the same procedure applies. It is interesting to mention that even though they are considered soft law, human right instruments have the same legal hierarchy in Ecuador as treaties, which are binding by nature.[16]

3.2. The Executive Branch

The President leads the executive branch of government and is the head of state and government. The executive branch is mainly composed of the Office of the President and the Office of the Vice President of the Republic, as well as the Ministries of State. The President exercises the executive function and is responsible for public administration. The term of their mandate lasts for four years, but immediate reelection is permitted for one more term. Until 2018, indefinite reelection was constitutional.[17]

3.2.1. Requirements to be President

To be President, a person must be Ecuadorian by birth, able to fully exercise political rights, and at least 35 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 confidential way.

An elected president may end their duties before term for the following reasons:

  • presenting a resignation request to the National Assembly, which is then accepted
  • permanent physical or mental inability (must be proven and declared by the National Assembly)
  • removal from office, following the corresponding procedure established by the Constitution
  • giving up the post, as confirmed by the Constitutional Court and declared by the legislative branch
  • destitution due to a political trial
  • abandonment of duties, as declared by the National Assembly
  • impeachment

3.2.2. Ministries of State

Ministers of State can be freely appointed or removed by the President to represent him or her in matters inherent to their respective ministries. They are responsible for acts and contracts produced during their time in office.

To date, there are 16 Ministries.[18]

3.2.3. Public Force

The public force includes both the Armed Forces and the National Police. Their main duties are to protect Ecuador’s sovereignty, independence, and integrity, as well as public order and security. The President is the Commander-in-Chief of both forces.

3.2.4. National Equality Councils

These bodies are responsible for guaranteeing and protecting the fundamental rights enshrined in the Constitution and international human rights instruments in the elaboration of policies involving vulnerable groups. Public officers and members of civil society are part of these councils, which evaluate public policies involving issues of gender and ethnic groups, among others, as well as collaborate with other related public entities.[19]

3.3. The Judicial Branch

Only the bodies of the judicial branch can exercise judicial jurisdiction. In Ecuador, the judiciary branch is unitary. Judges administer justice according to the Constitution, international human rights instruments, and the law. The 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, they hold stability in office. For those who cannot afford the cost of legal private representation, the Public Defendants’ Office was created as an independent body of the judicial branch to protect the right to a fair trial. The Constitution has also introduced witness protection programs.

Another key component of the justice system is the social rehabilitation system for persons sentenced to crimes, and their reinsertion into society. Detention facilities are required to have adequate resources to ensure physical integrity of the inmates. People who have been deprived of their freedom but are waiting for a court decision are detained in temporary detention facilities, separate from those who have already been declared guilty.[20]

3.3.1. The Administration of Justice

The administration of justice is managed by the judiciary. However, other alternative procedures for dispute settlement, such as arbitration and mediation are allowed. Furthermore, the Constitution recognizes indigenous people’s rights to administer their own system of justice, in accordance with their ancestral traditions, as long as they are not contrary to the Constitution and human rights enshrined in international instruments. The state must guarantee that indigenous judgements are enforced by authorities. However, the Constitutional Court has delivered decisions in which the application of this justice system has been limited. According to the Court, Ecuador’s ordinary criminal justice system may review decisions of indigenous authorities if those decisions violate or jeopardize the exercise of fundamental rights, such as life or personal integrity.[21]

3.3.2. Bodies of the Judiciary

The jurisdictional bodies are independent and can only be subject to the Constitution, the international instruments, and the law. The jurisdictional bodies in charge of administering justice are as follows:

  • the National Court of Justice (located in Quito), the highest court in Ecuador which has jurisdiction all over the State’s territory and acts as a Court of Cassation through specialized chambers, according to law
  • the Provincial Courts, which have jurisdiction over the territory of each province
  • tribunals and judges appointed by law, whose independence is guaranteed by the state and can only be subject to the Constitution and the law
  • the Justice of the Peace, who settle matters within their districts based on equity and may not necessarily be a legal practitioner

Furthermore, the National Council of the Judicature selects judges and other public servants of the judicial branch. It also evaluates and sanctions them, if necessary.

3.3.3. Attorney-General’s Office

Autonomous from the judicial branch, the Attorney-General conducts either ex officio or at request of a party, pretrial criminal inquiry, or other criminal proceedings. If the case has merit, the Attorney-General charges the alleged offenders before a judge and indicts when substantiating the criminal trial.

3.3.4. Criminal Code

In 2014, a new Criminal Code was passed. The code incorporated both substantive and procedural rules on criminal matters into one text. New crimes have been incorporated, such as the introduction of the feminicide and the use of hired gunmen. Following the advice of the Interamerican Commission of Human Rights, genocide and slavery were also included as crimes in the code. Generally, specialists assert that the Criminal Code expands the punitive power of the States.[22]

4. Political Division of the State’s Territory

In order to make administration efficient, the Ecuadorian territory is divided into 24 provinces, which are separated into cantons.[23] These cantons, in turn, are split into parishes. All of them may interact for a proper administration of their natural and economic 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 economic resources. However, the state also allocates funds from the national budget to these jurisdictions, depending on their population. Certain parts of the Ecuadorian territory are subject to special forms of political administration regimes. This is the case of the province of Galapagos, which is under such regime due to its particular environmental and demographic features.

5. Monetary System

The US dollar is the official currency in Ecuador as of January 9, 2000. This measure has allowed Ecuador to give stability to its economy.[24] The Central Bank of Ecuador guarantees the due functioning of the “dollarized” economic regime and fosters the economic growth and wellbeing of the country. The Constitution has not recognized “dollarization” as the monetary system of the State, nor has it rejected it.

6. Constitutional Court

The Constitutional Court has national jurisdiction and functions in Quito. It is formed by nine chairmen, each with one replacement. They perform their duties for four years and may be reelected. They are to know about certain administrative acts and the unconstitutionality of members of public administration. The Constitutional Court has the power to stop provisionally, or partially, all its effects. It also attends to unconstitutionality requests on bills.[25] It can hear resolutions in which the constitutional mechanisms have been previously denied, as a court of appeals. It also must establish the coherence between international treaties and the Constitution for further ratification. However, decisions taken by the judiciary are not subject to revision from the Constitutional Court.

7. The Official Register (Gazette)

The Official Register (Registro Oficial) is the official means of publication of every law, decree, resolution, and any other legal modification product of public institutions since 1895. Such institutions send a transcript of the legal text to the Director of the Official Gazette. After due corrections, they were printed and sold via subscription until 2019. Since January 1, 2020, Ecuadorian legislation can only be found online.[26]

8. Online Information on the Ecuadorian Legal System

Besides, the Official Register, the website of the Ecuadorian National Assembly has a large list of recently approved laws and bills that are currently being analyzed. In addition, presidential decrees and ministerial decisions can be found on the webpage of the executive branch. Also, the website of the Ecuadorian Judiciary contains information on actual cases to be decided, links to all the bodies of the Judiciary, and the legal background that rules the judiciary.

9. Legal Education

10. Libraries and Databases


11. Resources

11.1. Primary Sources

Legislation

Treaties and International Instruments

Case Law

11.2. Secondary Sources

Law Journals

Government Websites

Media

[1] More information available at Ecuador, The World Factbook (2021)

[2] Further details can be found at Estadísticas, Instituto Nacional de Estadística y Censos (2021).

[3] Information available at Galápagos Islands, UNESCO (2021).

[4] For more information visit Ecuador International Organization Participation, Index Mundi (November, 2020).

[5] Please see States entitled to appear before the Court, International Court of Justice (2021).

[6] To read the corresponding Declaration made by Ecuador with respect to jurisdiction of this court, please visit the website of the International Tribunal for the Sea – Declarations Made by States Parties under Article 287.

[7] To access the complete text of the Constitution, visit the Constituent Assembly’s website.

[8] David Lara Novillo, Voto Voluntario más Obligatorio que Nunca, Criterio Digital (August 3, 2020).

[9] See Article 11.3 of the Constitution.

[10] To know the rights considered to be part of “good living” and their applicability in Ecuador, read the book by Mauricio León, Del Discurso a la Medición: Propuesta Metodológica para medir el Buen Vivir en el Ecuador, Instituto Nacional Estadística y Censos (2015).

[11] To learn the updated version of the Statute and know more about the subject, visit the website of the Presidency.

[12] See Galo Blacio & Angel Hoyis Escaleras, Las Garantías Jurisdiccionales y los Principios Procesales de la Justicia Constitucional, en la Legislación Ecuatoriana, Ámbito Jurídico (May 1, 2018); Gloria Orrego Hoyos, The Amparo Context in Latin American Jurisdiction: An Approach to an Empowering Action, GlobaLex (September/October 2017).

[13] To learn more, read Article 104 of the Constitution.

[14] Go to Article 105 to learn more about recall of public elected authorities.

[15] See Article 103 of the Constitution.

[16] See, for instance, Articles 41, 156, 172, etc., of the Constitution.

[17] In February 2018, there was a public successful referendum that eliminated the possibility of indefinite reelection of the President. This measure was introduced in 2015 after an amendment promoted by former President Correa and has been covered by El País and BBC.

[18] The Ministry of Justice, Human Rights, and Worship disappeared following a presidential decision in November 2018. Instead, two secretaries were created. One in charge of human rights and the other in charge of social rehabilitation. Read Ministerio de Justicia se extinguirá este Lunes, El Universo (January 12, 2019).

[19] See Articles 156 and 157 of the Constitution.

[20] See Articles 190 and 203.1 of the Constitution.

[21] See the decision of the Constitutional Court.

[22] Read a more detailed comment about the 2014 code (Nuevo Codigo Penal Rige Manana, Eluniverso, 2014).

[23] Ecuador’s provinces are Azuay, Bolivar, Canar, Carchi, Chimborazo, Cotopaxi, El Oro, Esmeraldas, Galapagos, Guayas, Imbabura, Loja, Los Rios, Manabi, Morona-Santiago, Napo, Orellana, Pastaza, Pichincha, Santa Elena, Santo Domingo de los Tsachilas, Sucumbios, Tungurahua, and Zamora-Chinchipe.

[24] See, María Camila Hernández, Los Pros y los Contras de la Dolarización en Ecuador , 20 años Después, France 24 (January 24, 2020), to learn about the pros and cons of “dollarization” in Ecuador.

25 Nevertheless, dispositions under Article 302 of the Constitution establish that the executive branch will rule monetary policies, which are to be executed by the Central Bank.

[25] This is interesting knowing that bills do not produce legal effects until they become law.

[26] For further details, read the article by Daniel Romero, Registro Oficial será Gratuito y Electrónico desde el 2020, El Comercio (December 23, 2019).

[27] The Registro Oficial website.