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Introduction & Context
In 2008, numerous environmentalist organizations praised the Ecuadorian government for adopting a constitution that acknowledged “the rights of nature.” A small country in South America, Ecuador received international attention for becoming the first country in the world to recognize that ecosystems are not owned by human beings and thus, have the independent right to “exist and flourish.” Although Ecuador gained a positive reputation for this amendment, its leaders have been criticized for failing to build a constitution that represents the needs of the people.

Democratic socialist Rafael Correa was elected president in 2006 and introduced Ecuador to leftist policies. Economists credit Correa with decreasing poverty in his ten years of presidency. Constitutional law researchers believe that Correa’s constitutional agenda consisted of centralizing power in the executive branch and strengthening the government’s authority over economic development. President Correa promoted a developmental plan called “buen vivir,” translated as “good living,” which encouraged residents to live in harmony with nature and in equality with the state. These initiatives were part of a new constitution that reflected Correa’s goals for the country.

In April 2007, the Constituent Assembly, a group of 130 elected delegates, were instructed to create a constitution that upheld the standards of buen vivir. With this new text, the state could intervene in the national economy and public management system. The 2008 Constitution established the National Assembly as the unicameral legislature in Ecuador. The 2000s marked a turning point for Ecuador because people believed they were separating from years of autocratic government to a real democracy under Correa. However, during his presidency, Rafael Correa was criticized for attempting to weaken the political party system and prioritizing executive power.

Through the 2008 Montecristi Constitution, constitutional law researchers believe Correa tried disguising autocratic power with a constitutional revolution. They claim that the Constitution accomplished this by expanding the power of the executive branch and promoting hyperpresidentialism.

Structure
With over 400 articles, the Montecristi Constitution can be characterized by some as a long text to read. It would take a long time for someone to go through the entire constitution and decipher the meaning behind each text. One could say that information seems buried in the length of the text. To overcome the length of this text, there are sections divided for each marginalized group.

The first few paragraphs can be seen as offering inspiration for human rights for historically marginalized people. The Constitution’s chapter section appears well-organized and inclusive for all identities. For example, there are sections that specify the rights for Persons with Disabilities, Indigenous people, and Afro-Ecuadorian people. In each section, there is a long list of rights devoted to each identity group. To the average reader, the Constitution makes an attempt to address the concerns and unique experiences of each group. However, when reading each section, one will find a line that ties the marginalized group’s rights to the power of the Executive Branch. This typically comes in the form of a sentence claiming that each right is not easily accessible.

Even with the specific subtitles, the Constitution requires people to read the entire text section to understand the difference between who possesses what rights and who possesses the access to these rights. These human rights are limited by whether an individual can access them. Based on this structure, one could say that it would take a long time for people to go through the Constitution to fully comprehend their rights and their right to claim these rights.

The Buen Vivir Model
Under the subheading of Human Rights, the second title is “buen vivir.” Correa’s goal to reestablish the country involved acknowledging the nation’s past inequity and its newfound appreciation for nature and diversity. The status of buen vivir requires the government and the people to employ an economic model that respects nature. The Constitution was meant to go against traditional Western ideals of capitalism and cooperations, and prioritize the protection of nature.

The Constitution’s adoption of buen vivir is reflected in the inclusive language it uses. But, buen vivir is critiqued for failing to offer a plausible course of actions for the country to become stable. Critics claim that buen vivir holds a vague definition and worships the idea of a utopia rather than a rational solution. It is possible to doubt the validity of buen vivir because it can be seen as a fantasy. The idea of a greater Ecuador sounds better - and easier- than actually carrying out democracy.

Some could call out the Constitution’s buen vivir for being performative because it does not keep the government accountable with its promise for a stable future. For example, one of the first articles of Ecuador’s 2008 Constitution states that residents are guaranteed a “democratic society free of corruption.” Although most introductory articles are meant to be generalized, the Constitution does not later specify the definition or levels of “corruption.” One person’s perception of corruption could vary depending on how much they trust the government. Corruption only appears 12 times in the text. In those 12 times, the text is not explicit about the specific consequences of political corruption.

One could also argue that the ideology of buen vivir can be a threat to democracy because it employs the mannerisms of equality, but it fails to properly meet citizens’ needs by prioritizing the President’s power. If the Constitution only uplfits the ideology of buen vivir, it risks appearing as a one-sided political system with no room for citizens’ feedback. One must question how people against buen vivir - an ideology praised in the Constitution- will be seen by their peers. Will they be considered enemies of the state? And because buen vivir is supposed to be the pillar of democracy, will the same non-supporters appear as though they are against human rights? One could debate on whether buen vivir is truly a stepping stone of democracy if it risks excluding citizen’s concerns.

Autonomous Governments
Article 3 establishes that Ecuador is home to a decentralized, autonomous government. Each provincial government must adapt to the needs of its unique ecosystem and its citizens’ concerns. For example, Article 3 requires each provincial government to take accountability for the distribution of goods and services to their community.

Yet, in Article 277, the State plans to achieve buen vivir by producing goods, and providing public services to its citizens. However, this list of responsibilities is vaguely worded. It leaves the reader wondering what kind of goods and services the State is responsible for distributing and creating, given that each provincial government is already required to complete this responsibility as seen in Article 3. One might criticize the State for requiring each government to fulfill its provincial duties, while it must also carry out this responsibility. Others might suggest that the State uses the structure of decentralized governments to rid itself of the responsibility of taking care of each province’s unique needs.

Article 4 also poses a possible conflict to Ecuador’s decentralized, autonomous government structure. This article establishes that the Ecuadorian territory is a geographical whole, and a unitary state. As an “irreducible state,” Ecuador could be deemed as one unit that cannot be broken apart by different rules or codes. Each provincial government would have to employ the same practices to gain food, establish a workforce, or create public services, despite having different geographical settings. These two articles could confuse a citizen as they might think it would be wrong to have different rules for a state that is supposed to be unified. Both articles call into question the structure of the government and whether a unified state means having a diverse set of codes.

There is also the possibility of a lack of checks and balances. For example, one way to divide and check powers is by holding different branches of government in different cities. This structure could allow different provincial governments to feel as though they are home to a critical part of the federal government. However, throughout the Constitution, the capital of Quito is the only city in which there are major national public offices. The National Assembly, the National Court of Justice, the Electoral Branch, and the Constitutional Court all convene and hold seats in Quito. One could say power is not properly distributed throughout the provinces because branches are not evenly located throughout the country. This could make other provinces’ citizens feel as though they are inferior to Quito’s residents or less protected by the government.

The Power Distribution between Each Branch
The Constitution’s Article 84 explicitly states that the National Assembly is responsible for creating the laws that guarantee the dignity of human beings. Tthere should be no case where the Constitution and actions by the government endanger the rights recognized by the Constitution. This presents a difficulty because the same people who wrote the constitution have the authority to decide what classifies as a danger to rights presented in the constitution. In this constitution, the power to interpret rights is granted to the legislative branch whereas in most constitutions, this power is usually assigned to the judicial branch.

According to Article 134, the ability to submit bills is divided between five percent of the National Assembly, the President, the Constitutional Court and other citizens. However, article 135 states that only the President has the right to submit bills that “amend or eliminate taxes, increase public spending, or change the country’s political and administrative division.” This grants the President complete legislative power on the country’s monetary system because he does not have to consult the National Assembly. Although Ecuador is a presidential system, this inequitable distribution of power grants the President the ability to disregard the rest of the government in matters of economic development.

In each bill that the National Assembly writes, there are several requirements that must be fulfilled. According to Article 138, the word of the President is the final one because if he/she completely objects to the bill, the National Assembly may only revisit the bill after a year. If there are segments of the bill that the President objects to, the President has the right to alter the text of the bill. The Assembly has limited power compared to the President’s unlimited bill constraints.

Similarly, as seen in Article 139, the Executive Branch has another possible power dynamic with the Judicial Branch. If the President rules that a bill is unconstitutional, the bill is reviewed by the Constitutional Court. However, the President is the person who appoints people in the Constitutional Court. This action could be criticized because there is risk for potential bias. The President could be seen as picking Court members who reflect his own values and interests, and thus, the members will rule in his favor. If the Court agrees that a bill is partly unconstitutional, the Court must make changes that fit the President’s approval. Both the Legislative and Judicial Branch have the power to amend and create laws. But, they do not have the final call on most matters. That power is only granted to the President.

Article 104 deems the President as the “supreme authority,” further placing the executive branch as the superior legal body. It grants the President the power to decide on what matters the National Electoral Council should convene for. This article reinforces the presidential system followed by this Constitution. But, this word choice also implies that the President holds the most power amongst other branches.

One could argue that these procedures resemble autocratic legalism because the practice of autocracy is disguised in the shape of democracy. The President appears to grant others the power to enact bills, but he/she is truly in control of most matters, mainly relating to money. This action reflects the unbalanced power dynamic between the Executive, Legislative and Judicial branches, with the first being more powerful than the following two.

Critics could also argue that in a socialist platform, a President is meant to inspire more equal decision-making between citizens and leaders. As someone who based his campaign on socialism, President Correa did not exemplify equality amongst branches in these articles.

Legal scholars could say that the creation of the Montecristi Constitution under President Correa’s presidency resembles “constitutional backsliding.” Constitutional backsliding refers to the practice of power being increasingly concentrated in the Executive branch, leading to a failing system of checks and balances. Correa presented the Constitution as a hopeful pathway to a more stable Ecuador. Yet, the uneven distribution of power may guarantee him a place as an autocrat that does not need to convene with his colleagues or constituents, thus possibly increasing the power of the Executive branch.

Citizen’s Rights
The Comparative Constitutions Project concluded that Ecuador’s Montecristi Constitution contains the highest number of constitutional rights of any of the 188 constitutions in the world. But, critics continue to debate on whether these articles justly represent citizens’ civil rights.

For example, Article 18 grants people the ability to gain access to information generated in public or private institutions that operate under the State. But, there is one exception to this rule. The Constitution acknowledges that there are cases where information must be kept confidential based on the law. Although the constitution deems access to information as a public right, it also limits peoples’ accessibility to these rights by stating that there are pieces of information that can be dubbed as “confidential” by their public officials. This article can be seen as misleading because citizens do not have complete and unlimited access to public information.

The concept of buen vivir intends to bridge the gap between government and citizens. However, critics could say that not every article reflects this practice. Under Article 103, for example, the President has the ability to amend a bill that was initially proposed by grassroots organizations and intended for review by the Legislative branch. Essentially, the President has the right to intervene in between an interaction between the people and the Legislative branch.

Another example is the possible infiltration of the media. Article 17 stresses the importance of increasing the public’s accessibility to the media. To show its commitment to this accessibility, the article also acknowledges the disbanding of any monopolistic ownership of the media. Yet, the public could criticize this article given how President Correa gained his popularity. For example, law researchers suggest that marketing techniques have been used throughout the 20th century to extend executive power. Correa’s nationally-broadcasted Sunday talks are an example of this technique. President Correa argued that his talks were meant to connect him to the Ecuadorian people and listen to his plans firsthand. One may rebuke this and suggest that Correa resorted to marketing techniques to promote his political agenda and gain peoples’ trust in the executive power. More so, the President could be seen as influencing the media’s coverage with his own channel and views.

According to Article 104, the President has the right to call the National Electoral Council to convene and discuss referendums that he/she deems necessary. The President can decide on what referendums are important enough to discuss. Citizens, however, do not have this right. Although Article 104 also states that citizens are able to “request the call for a referendum,” it only allows citizens to make an attempt at calling a referendum discussion. The article does not guarantee that citizens’s concerns will actually reach the Electoral Council. It does guarantee that the President’s concerns are met right away. This calls into question who has the power to convene people in one place. There is a difference between the President and the citizens as the former’s voice is guaranteed to be heard and has the power to influence others.

Per Article 156, the National Equality Council is composed of citizens and the State as a means of promoting political inclusion and understanding amongst the people. The council is in charge of ensuring the “observance and the exercise of rights” in the Constitution. Although the Equality Council is meant to protect democracy and keep the state’s goals transparent to the people, the council is only chaired by members of the Executive branch. The President would oversee a system that is meant to keep him/her accountable to his/her people. Thus, it would grant the President the power to determine if he/she is abiding by the rules of democracy. In a way, the President could allow himself/herself to test their own performance without feedback from the people. This conflicts with the State’s commitment to buen vivir because it does not allow citizens to voice their opinion on whether or not the State is being fair to them.

Based on Article 219, the National Electoral Council must ensure that every citizen votes in each election season. Former minister of finance, Ricardo Patiño, believed that the democracy in Ecuador was reduced to “the simple act of voting.” Democracy, he argued, required the direct involvement of citizens when it comes to decision making. It is possible that Ecuadorian citizens believe the Constitution is committed to equality because it stresses the importance of voting through the creation of the National Electoral Council. However, one could argue that the Constitution associates the creation of the Electoral Council to the image of democracy, given that the definition of democracy to Ecuadorian citizens - based on years of living under past dictatorships- requires voting rights.

Indigenous Rights and the Rights of Nature
What makes the Ecuadorian constitution different from other modern texts is its explicit attempt to acknowledge the struggles experienced by Indigenous communities. Article 171 highlights the need for a separate Indigenous jurisdiction that will hold individual standards for internal disputes in each tribal land. This amendment attempts to respect a community that has been marginalized for years. However, this article can be contradicted by Article 21, which states that culture cannot be used as an “excuse when infringing rights recognized in the Constitution.” By associating one’s cultural identity and practices with an “excuse,” the Constitution diminishes the marginalized identity in question.

One could argue that the Constitution discredits the experience of Indigenous communities with Article 21. For instance, an Indigenous practice that was not mentioned in the text could be classified as unconstitutional. But, the Indigenous community wouldn’t be able to fight against this ruling because it is not allowed to use its own culture as an “excuse.” The word choice of this article presents a fault between the government and its knowledge on what aspects of a culture qualify as “constitutional” or “excusable.” It also dismisses the unrecognized needs of an already marginalized community.

Scholars later confirmed that Indigenous activist organizations gained more political influence than ever before due to the Constitution. However, this influence was overlooked because of certain loopholes and limitations presented against the Indigenous community. For example, Correa approved the “economic development” of oil companies, which allowed them to control land in the national park of Yasuni. Indigenous people began protesting against oil exploitation on sacred Indigenous land, claiming it went against the rights of nature. President Correa responded by deploying the military to attack activists.

Correa seemed to employ the Constitution’s article that the Indigenous community could not use their culture as an excuse. Correa also claimed that environmentalists were challenging the Constitution’s devotion to “economic development.” However, there is possible unconstitutionality in his statement. Although Article 3 guarantees the State the right to pursue economic development, President Correa's actions went against the Constitution’s commitment to protecting the marginalized Indigenous community. In doing so, he may have also challenged the State’s commitment to protecting citizens’ buen vivir.


 * It is important to note that the word “development” is in the constitution 20 times more than the phrase, buen vivir. Constitutional law researchers argue that “development” refers to a nation’s pathway to economic growth and structural change.

In allowing oil industry to reside in Indigenous land, President Correa prioritized the nation’s “development” over the Indigenous citizens’ right to buen vivir. This could lead citizens to question the validity of the President’s revolutionary constitutional platform of buen vivir and whether he/she truly has the public’s best interest in mind.

The Appointment of Public Officials
In several instances throughout the text, the process of appointing a government official is one of the responsibilities of the Office of the President.

In the event that the Vice President is absent, the Assembly can only elect their replacement from a “shortlist of candidates submitted by the Office of the President of the Republic.” Although the people have the chance to elect the Vice-President, they do not get a say in the VP’s replacement. Only the President can provide a list of possible Vice-Presidents, leaving an opportunity for possible favoritism in choosing candidates who represent his/her interests.

Similarly, although the Council for Public Participation and Social Control has the right to appoint the Office of the State Prosecutor, the Council must choose the Prosecutor based on the shortlist of candidates provided by the President’s Office. This procedure presents a possible bias because the State Prosecutor is responsible for defending the State and its adherence to the law.

The President is also responsible for appointing the Ministers of State, also known as the members of the cabinet. One could say that the members of the cabinet represent the interests of the President because they were chosen by him/her.

The Superintendencies act as “bodies of surveillance and intervention” when it comes to economic, social, and environmental activities to protect “general welfare.” These Superintendencies are led by Superintendents who are initially picked from a shortlist provided by the President. The same characters who have the right to monitor public and private entities are chosen by the liking of the President. The Superintendendies branch justifies its actions by stating that its working towards every citizen’s best interest and protection, abiding by the goal of buen vivir. One could say that buen vivir is only used by each branch when it needs to legitimize its activity, claiming that its imposing said strict actions for everyone’s best interest.

Deadlines
One particular aspect of the Constitution is that it sets a timeline for certain obligations. For example, Article 428 states that when a judge wants to challenge the constitutionality of a legal norm, the Constitutional Court only has fourty-five days to rule on the constitutionality of this law. Another example is found in Article 129, which states that the National Assembly usually has seventy-two hours to complete impeachment proceedings against the President. This may place a difficulty given that there are over 100 Assembly members, and meeting with each other to discuss and agree on a decision could take a relatively long time. The President, however, does not have the same strict time frame to dissemble the National Assembly. According to Article 148, the President has the right to dissolve the Assembly if they’ve failed to complete their responsibilities without a specific deadline. There is not the same accountability held for the President as there is for the Assembly.

Notable Constitutional Changes since 2008
Rafael Correa became Ecuador’s longest-serving president when he left office in 2017. However, he left a legacy in office by changing aspects of the Constitution during his ten-year presidency.

In 2011, President Correa called a referendum on the following: to limit the freedom of the press, to limit the due process in criminal cases, and to implement harsher punishment on cases involving animal cruelty, and gambling. The majority of his amendments were passed with over 50 percent approval rate from the legislative body.

Article 144 of the Montecristi Constitution states that the Presidential term lasts four years and the President can be reelected only once. President Correa’s most notorious action involved encouraging the National Assembly to lift the Constitution’s term limit on any public official. This would mean President Correa could run for reelection starting in 2021. The action caused an uproar with the people who once supported him because it appeared as though the President tried to circumvent the term limit he agreed to limit himself to. By 2013, President Correa had won his third election and had already circumvented the two-term limit of the Constitution. To run in 2013, he claimed that with the new constitution of 2008, his election in 2006 did not necessarily count.

One could say that the country seemed to be headed towards autocratic legalism when Correa tried to extend the length of his presidenial term despite the constitutional limit. These fears were later confirmed by a leaked recording of President Correa claiming that he didn’t truly support his Vice-President’s campaign for the presidency. During this time, the country was experiencing “high political polarization” and a weak economic system. Correa said he hoped to return to the presidency in 2021 by lifting the term limit.

In 2017, President Lenin Moreno encouraged the public to challenge the legitimacy of Correa’s Montecristi Constitution. He provided the Ecuadorian citizens with referenda questions. One of the questions allowed people to undo the “unpopular constitutional changes taken during Correa’s term.” President Moreno gained public support for reversing Correa’s changes. Political scholars predicted that Moreno’s popularity meant the public would go against Correa and his constitutional revolution from 2008.

President Moreno successfully added an amendment that limited all elected officials to a single re-election. He also laid out a stricter stance on corruption by prohibiting any citizen with a record of embezzlement or bribery to run for public office. More importantly, he created an organization called the Council of Citizen Participation and Social Control, a group of unelected officials in the executive branch that had the power to go above the National Assembly. Moreno established that his constitutional changes did not need the approval of the Constitutional Court and the changes were in place right away. The Court had to approve the constitutionality of this change. But, it failed to do so in the 20-day window, based on the deadlines presented in the Montecristi Constitution.

One can suggest that President Correa and President Moreno are alike given that Moreno dismissed the power of the Judicial Branch and used the Executive branch’s power to progress his own agenda.

Conclusion
The main goal of the Montecristi Constitution seemed to be to restore a once-separated national government by increasing transparency and accountability in each province. However, critics might say that the Montecristi Constitution reflects autocratic legalism because it allows for the executive branch to act as though their power is limited by the constitution, when in reality, it is not.

The Constitution attempts to separate itself from the Western capitalist views of economic consumption and production by installing the rights of nature. Yet one must question whether the text accomplishes a commitment to democracy based on the numerous attempts to protect the Executive branch and keep the President as the “supreme” autocratic power. Scholars could argue that this went against President Correa’s socialist platform. The 2008 Constitution could be perceived as failing because the Executive branch lacked accountability for its extended power.