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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. + 369 +
