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THE 2018 CONSTITUTIONAL REFERENDUM IN ECUADOR AND THE TRANSITORY COUNCIL...
The 2008 Constituent Assembly had the openness and citizens’ participation
that the 2018 referendum lacked. The drafting phase of the 2008 Constitution
created a “strongly dialogical scenario that sought to expose all the assembly
members to a set of demands and proposals elaborated by a broad spectrum
of social organizations”.! The Assembly members were not only elected by the
people, but they received hundreds of individuals and organizations and processed
hundreds of proposals. The Assembly was a democratic space accessible to the
otherwise excluded sectors of the population. For instance, Âvila points out that
new institutions included in the Constitution “were not created or developed by
jurists but by social movements, particularly the indigenous”.
Conversely, the 2018 referendum was a mere plebiscitary exercise in which the
voters were not provided with the necessary tools to take an informed decision.
The Organization of American States (OAS) Electoral Mission that monitored the
2018 referendum concluded that question 3 that created the TCCPSC was not
clear, it did not allow the elector to accept or reject each of the individual topics it
contained, it was incomplete, the provided information was insufficient, and the
consequences it could produce were blurred. These shortcomings, according to the
Mission, impacted on the electors’ right to have an informed vote.’? Therefore, the
popular legitimacy of the 2008 transition regimen can never be compared to the
2018 transition regimen. Finally, the self-given attributions the TCCPSC usurped
to itself found no basis in the text of the referendum. The TCCPSC acted ultra vires.
THE SELF-GIVEN ATTRIBUTION TO APPOINT “TRANSITORY” AUTHORITIES
Exercising its self-given attributions that were not included in the 2018 referendum,
the TCCPSC appointed “transitory” authorities that replaced the ones that were
ceased by it. According to national law, in cases of temporal or definitive absence
of the standing authorities, they ought to be replaced, as appropriate, by their
alternates or subordinates.
This never happened. The persons that were supposed to replace the standing
authorities were never evaluated by the TCCPSC and still they were not appointed
as replacements. The TCCPSC simply ignored national laws. Moreover, when the
TCCPSC appointed the “transitory” replacements, it did not follow any selection
Pablo Andrade, El reino (de lo) imaginario: Los intelectuales politicos ecuatorianos en la
construcciön de la Constituciön de 2008, Ecuador Debate 85 (2012), 35-48, 39.
18 Ramiré Avila, El neoconstitucionalismo transformador. El Estado y el derecho en la
Constituciôn de 2008, Quito, Abya Yala, 2011, 14-15.
OAS, Misiôn de Expertos Electorales, Referendum y Consulta Popular. Republica del
Ecuador, 4 de febrero de 2018. Informe Final, 28.
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