Oldal 367 [367]
THE 2018 CONSTITUTIONAL REFERENDUM IN ECUADOR AND THE TRANSITORY COUNCIL...
constitutional term of its current members and that the Council that transitorily
assumes its functions has the power to evaluate the performance of the authorities
whose designation corresponds to it, being able, if the case, to anticipate the termination
of their periods according to Annex 3?”
The Constitutional Court has stated that the fundamental structure of the State is
the division of government in five branches. Ifa constitutional amendment aims at
altering this division, then the fundamental structure of the State would be affected.
The Constitution Court adopted this decision in 2011 when another transitory
body was created: the Transitory Judiciary Council (Consejo de la Judicatura
Transitorio). The Constitutional Court decided that the creation of this transitory
body that replaced the Judiciary Council for 18 months was not a modification of
the structure of the State because the transitory body was entrusted with the same
powers and functions as the definitive body.° Furthermore, the executive did not
have complete control over the selection of the standing members of the transitory
body. The executive could only appoint one member, while the remaining two
members were appointed by the legislature and by the transparency and social
control branch of government.’
Unlike the 2011 constitutional amendments, the 2018 amendments gave the
executive greater control over the selection of the members of the transitory body.
The seven standing councilpersons and the seven alternates of the TCCPSC were
selected by the Parliament from seven lists of three names each prepared by the
President of the Republic. In other words, Moreno handpicked all the members
of the TCCPSC.
Additionally, question 3 of the 2018 referendum gave the TCCPSC more
attributions than the definitive body had. The additional attributions were: (a) to
evaluate the performance of the authorities, and (b) to anticipate the termination
of the terms in office of such authorities if they failed the evaluation. Likewise, the
members of the TCCPSC decided by themselves that they had extra attributions,
not listed in question 3, of appointing transitory authorities who replaced the
authorities whose terms in office were terminated, disregarding the national laws
that regulate how the positions should be filled.
As to the attributions mentioned in (a) and (b), they are attributions that
belong to the legislature. According to Article 120(9) of the Constitution, the
Parliament has the power “to audit the activities” of the executive, electoral, and
transparency and social control branches of government and other bodies of the
public sector. Article 131 of the Constitution gives the Parliament the authority
° Constitutional Court, Opinion No. 001-11-DRC-CC, February 15, 2011, 42-43.
7 Id., 43.
+ 365 *