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OSWALDO RUIZ-CHIRIBOGA
CPSC was wrong when it considered that the very same could be said regarding the
2018 transition regime. The difference between both transition regimes is their origin.
When the Constitutional Court decided that the 2008 transition regimen had
the same status as the Constitution, it considered that the transition regimen
was approved at the same time as the Constitution’ and, more importantly, by
the same body that drafted the Constitution, namely, the Constituent Assembly.
Therefore, the Constitution and the transition regimen had “the same popular
legitimacy”. They differed only on their purpose. Because of their same origin
and popular legitimacy, there was no hierarchy between the Constitution and the
transition regime. If there was a conflict between them, the solution could only
be found on a case-by-case basis, taking into consideration the aim of the relevant
provisions of each normative body and the will of the constituent.*
The 2018 transition regime is completely different. The so-called “mandates”
and other decisions passed by the TCCPSC could not have the same value and
hierarchy than the Constitution. The TCCPSC did not have the same powers and
attributions than a constituent assembly and their members were not elected by
the people but by Moreno. In fact, the “will of the people” is diametrically different
in a referendum than ina constituent assembly. A referendum is not an expression
of the ultimate sovereignty of the people. As Col6n-Rios argues:
“In the context of constitutional reform, a constitutionally mandated referendum is
nothing but a juridical exercise required by the amendment procedure itself: when
citizens express their support or reject a constitutional amendment, they exercise
constituted, rather than constituent, power. [...] A referendum presents citizens with a
set of pre-designed alternatives that they cannot change; it does not necessarily allow
citizens to put into question and deliberate about different constitutional provisions,
much less about the constitutional regime as a whole. [...] Moreover, if citizens are
asked to vote on a set of disparate and complex proposals, the referendum can easily
turn into a mere ‘plebiscitary’ exercise in which voters simply express their support or
dislike of current government officials, particularly of the executive. A referendum does
not guarantee the degree of deliberation and debate necessary for the maximization
of the ideal of popular participation either: citizens do not become authors of their
amended constitution, but merely ‘consent’ to the proposed changes. A democratic
process of constitutional change mandates a degree of openness and participation
similar to that present in a (democratic) constitution-making episode”.
13 Official Bulletin No. 449, on October 20, 2008.
4 Constitutional Court, Judgment 002-0S-SI-CC, supra n. 12, 16.
15 Tbid., 17.
16 Joel Colön-Rios, The Legitimacy of the Juridical: Constituent Power, Democracy, and the
Limits of Constitutional Reform, Osgoode Hall Law Journal 48 (2010), 199-245, 235-236.
+ 368 *