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 finished a six-month internship in the Special Rapporteur of Freedom of Expression of the Inter-American Commission on Human Rights. Currently she works as a Human Rights Consultant in the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR).
Published September/ October
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Table of Contents
I. THE CONSTITUTION
The Republic of Ecuador is ruled by the 1998 Constitution.
Ecuador is a social democratic state. Sovereignty is on the people and it is exercised through public institutions and other democratic means established in the Constitution. Its government is presidential, elective, representative, responsible, participative, and of a decentralized nature.
Ecuador is self defined as a multicultural and multiethnic country that respects and encourages the development of every Ecuadorian native tongue. Spanish is the official language. Quichua, shuar, and other ancient tongues are official for indigenous populations, as established by law.
State’s duties are to strengthen national unity in diversity, respect and protect the full exercise of Human Rights and Fundamental Freedoms to every man and woman, and to provide social security to its population.
Human Rights are guaranteed to every person 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.
There are three legal remedies established in the Constitution to protect individuals against violations of their fundamental rights:
Habeas Corpus: Every person who believes to be unfairly deprived from his personal liberty may file a habeas corpus remedy, by himself or through another person. Local mayors are the authorities entitled to decide on these remedies, within 24 hours of their filing. 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.
Amparo: Any person, by himself or representing a group of people, may file an amparo remedy, through which urgent measures may be taken in order to prevent or remedy the consequences of a public, arbitrary, and illegitimate act, that violates any of the fundamental rights enshrined in the Constitution and other International Treaties. However, the amparo remedy cannot be filed against decisions taken by national courts.
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. More information on Habeas Corpus, Habeas Data, and Amparo Procedures are available in the Law of Constitutional Control.
Access Action: This rather new procedure intends to protect the right of Access to Public Information. Learn more about the Access to Communication Law online.
There are three basic procedures for democratic exercise within the Ecuadorian constitution:
a. Democratic Elections to elect public officials through independent candidates or those proposed by political parties, as arranged by the law.
b. Public Consultations to reform the Constitution or on matters of grave importance to the country.
c. Revocation of Mandate to local authorities for acts of corruption.
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 manner.
The Government Structure is divided as follows:
1. Bodies of the Legislative, Executive, and Judicial Branch
2. Electoral bodies
3. Accountability and control 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 economical activities of the State
The National Congress 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 Congressmen who are elected as follows:
· Two for each province
· One for every 200,000 citizens (however, this number can change according to the population growth, which must be calculated every ten years)
To be an Ecuadorian congressman, one must be Ecuadorian by birth, be entitled to the exercise of its political rights, be at least 25 years old, and be native to the respective province or to have resided there at least three years prior to elections.
Congressmen perform their duties for a period of four years.
Elections of president and vice presidents of the National Congress are held every two years. The president and the vice president are elected among congressmen of the political parties that have achieved first and second majority in elections.
IV. THE EXECUTIVE BRANCH
The President exercises the Executive Function, and is chief of State and Government responsible for public administration. His term starts on January 15th of the next year after his election.
Being Ecuadorian by birth, being able to fully exercise political rights and be at least thirty 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, declared by the National Congress
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.
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.
Only the bodies of the Judicial Branch can exercise jurisdiction. The Judicial System must be unitary. In 1998 after the last Constitution came into force, a transitory disposition demanded that every court, tribunal, or body that exercises material jurisdiction and decides over people’s rights, must be incorporated to the Judicial Branch. To this day, Police and Army Tribunals haven’t been incorporated to the Judicial Branch yet. Ecuadorian justice recognizes the right of indigenous and peasant communities to exercise their own justice system. Also, peace judges to solve individual quarrels outside of the ordinary jurisdiction, is permitted.
Ecuadorian Judicial System guaranties due process, speed, 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.
a. Supreme 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. Courts, Tribunals and Judges appointed by law, whose independence is guaranteed by the State and can only be subject to the Constitution and the Law.
c. The National Council of the Judicature, which is an administrative and disciplinary body of the Judiciary.
a. Be Ecuadorian by birth
b. Be able to fully exercise political rights
c. Be at least 45 years old
d. Have a PHD degree in Law
e. Have previous experience as an attorney, judge, or law professor for at least 15 years
The 1998 Constitution introduced important reforms that aimed at the Ecuadorian judiciary system meeting international standards. In this respect, two major reforms where established:
1. Criminal procedures would follow the accusatory system, not the inquisitive system anymore.
2. All national tribunals would be part of the Judiciary. Therefore, Minors tribunals, Police, and Military Tribunals were intended do undergo a process of integration to the Judicial Branch. Even if some of these tribunals have met these goals, it is most concerning that to this day, Police and Military tribunals have not been fully incorporated to the national Judiciary System.
VI. PENITENTIARY REGIME
Penitentiary system and confinement aims to educate the inmates, capacitating 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.
In order to make administration efficient, the Ecuadorian territory is divided in 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.
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 National Congress is entitled to draft and approve laws in the following subjects:
1. Fundamental Rights and Freedoms
2. Typify felonies and establish sanctions
4. Establish competences to the bodies of the State
5. Reform, abolish or interpreter law.
These regulate the organization and activities of the main bodies of the Government, and the exercise of fundamental human rights and freedoms.
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 Congress.
Only the President, the Supreme Court of Justice, and the Commission of Legislation and Codification of the Congress can present Law Projects in all subjects.
The Constitutional Court, the Supreme Electoral Court, and the highest authorities of control bodies, as well as the National Ombudsman may present law projects on the subjects that are of their competence.
Also, a certain umber of people who are fully able to exercise their political rights may present a Law Project. (1/4 of the Electoral Population), in every subject that is not reserved only to the President.
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 Congress 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 Congress 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.
In a second debate, the project will be approved, modified or denied with the vote of the majority of the Congress, except in the case of Organic Laws.
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 objections are based on unconstitutionality of the project, it will be sent to the Constitutional Court for an analysis within 30 days. If indeed it is determined as unconstitutional, it will be filed. If it is partially unconstitutional, the National Congress will mend it as necessary, for further approval from the President. If it is not unconstitutional the Congress will order its immediate publication.
To find out more about the projects that are currently analyzed in Ecuadorian National Congress, click here.
National Congress will approve or disapprove the ratification of international covenants in one single debate and with the vote of the majority of the members of the Congress. Prior to this, it will request from the Constitutional Court an opinion on the constitutionality of the covenant. If a reform to the Constitution is needed before ratifying the covenant, it will not be approved before such reform has been made.
International Covenants and treaties prevail over any law or other norm in Ecuador. It is debated however, if international covenants have constitutional hierarchy in the Ecuadorian legal system.
To see more on the international covenant ratified by Ecuador, see the Treaty Database of the Ministry of Foreign Affairs of Ecuador.
The hierarchy of Ecuadorian Law can be set as follows:
International Covenant and Treaties
Presidential Decrees/ Ministerial Decrees
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.
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 are printed at the Editora Nacional, Quito.
The Official Gazette published 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
Issued every day, numbered from one and so on, 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.
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 Congress 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 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 Ecuadorian Supreme Court contains general information on activities, contacts, and members.
See also primary materials at Marco Juridico.
LAW SCHOOLS AND FACULTIES:
ECUADORIAN LEGAL WEBSITES:
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:
GENERAL INFORMATION ON ECUADOR
 Entry into force since its publication in the Ecuadorian Official Register No. 11/08/1998, No. 1, year 1.