Seite 370 [370]
OCR
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 *
