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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 *
