prevent an executive displeased with an independent or politically opposed court to suspend
it and pack it with political allies.
The attempts to establish judicial independence in Ecuador under the Washington
consensus Zeitgeist begun as part of the new 1992 constitution, which established six year
fix terms for supreme court justices, a scheduled renovation timetable for its members, a
new organization of the court is specialized chambers (a constitutional one among them)
and the creation of a judicial council. The reorganization of the court more or less occurred
and several of the justices were renewed, but the law implementing the establishment of the
judicial council did not occur until six years later in 1998 after several versions of different
nominating and designating bodies were presented to congress and until a majority in
congress agreed on the supreme court composition (CAJPE, 2000). In 1996 a subsequent
constitutional reform in 1996 established a separate constitutional tribunal who survives
until today in the 1998 constitutional text.
In 1997 congress renewed the entire supreme court establishing life-terms for its
members and enlarging it to 32 justices designated by congress form a list of candidates
integrated by an electoral college and civil society groups. Again in 1998 a new
constitution, convened by popular mandate, modified the size of the court and the rules for
its renewal, handing it this time to the supreme court itself and unlike the previous
constitutions, denying congress the right to impeach supreme court justices and preserving
justices’ life-terms. However, in December 2004, in a special session called by president
Lucio Gutierrez, a slim majority of 52 of the 100-seat congress
15
voted to dismiss 27 of the
31 sitting justices. Justices were replaced by allies to PRE, PRIAN and PSP political parties
supportive to Gutierrez.
16
Regarding the court’s renewal Gutierrez claimed that the court
was loyal to his political opponents who tried and failed to hold impeachment hearings
against him (HRW, 2004). In November 2004, congress had also replaced the majority of
judges on the country’s electoral court and constitutional court (HRW, 2004). On January
13, 2005, the president of the newly appointed supreme court resigned in disagreement with
the new conformation of the judicial council. In April 2005, amid a growing national
political crisis and protests in the city of Quito against him, Gutiérrez declared a state of
emergency in the capital and and revoked the entire new supreme court again.
17
The Ecuadorian example shows an example of judicial independence related
reforms, which initiated from a popular mandate, were delayed given a lack of agreement in
congress on the conformation of the supreme court and the judicial council and which were
later reversed under a new constitution which gave larger independence to the supreme
court vis a vis congress and also increased executive control over congress. The complete
failure of constitutional safeguards for judicial independence in 2004 can only be
15
The Ecuatorian congress is a 100 member unicameral body in which each of the country’s 22 provinces
returns a minimum of 2 deputies plus one additional one per every 200,000 habitants. The 1998 constitution
eliminated mid-term elections and established the entire congress renewal every four years. Congress was
renewed in 2002 and will be next renewed in 2006. The 1998 constitutional reforms affecting congress was
accompanied by a code of ethic (passed by congress) which imposes
penalties on party members who vote
contrary to their party on key votes. (http://www.ecuadorexplorer.com/html/government_and_economy.html)
16
Opponents saw the sacking of the court as a move with the clear intention of dropping criminal charges
against former president Abdalá Bucaram, accused of several acts of corruption during his presidency leading
to his self-exile in Panama from 1997 until April 2005. (BBC News, 2004/12/09 ).
17
Shortly thereafter Gutierrez was austed by congress. Palacios, the vice-president took over and was elected
president in 2005.
Convention