Volume 5, Number 19, Page 1

New Constitution in Ecuador

by Juan Carlos Cepeda

A new Constitution of Ecuador was adopted by the National Constitutional Assembly in the city of Riobamba on June 5, 1998. The Constitutional Assembly was comprised of seventy elected members. Below is a summary of several significant changes contained in the new Constitution.

Citizenship

The Constitution that will cease to be effective August 10, 1998 provides that Ecuadorian nationality extends to those born in Ecuador or naturalized. Ecuadorian nationals become citizens when they turn 18 years old.

The new Constitution eliminates the concept of nationality and leaves only the concept of citizenship which is acquired at the moment of birth or naturalization.

Classification of Rights

New constitutional provisions classify the rights of individuals according to the chronological order they appear (first, second and third generation). The first group includes civil and political rights. The second includes economic, social and cultural rights. Such rights involve those of property, work, family, health, social security and education. The third generation rights are those considered as collective. Included among such rights are those of Indians, consumers and the environment.

The rights defined by the Consitution are protected by mechanisms such as the habeas corupus, habeas data, amparo and defense of the people.

Forms of Democratic Participation

A new topic included in the Constitution is a mechanism for revoking an electoral mandate. The new provision allows the Ecuadorian people to revoke a mandate given to an individual by direct vote. Such a revocation is only allowed in special circumstances and must follow special rules.

The new Constitution also creates the right of Ecuadorians living abroad to vote in Presidental elections.

Legal Reform

The new Constitution addresses a longstanding problem involving the proliferation of rules and legal instruments that has generated juridical chaos. A Commission was created by the new Constitution to study current legislation in order to eliminate all the legislation that it is not in use, and to develop new legislation to implement provisions of the new Constitution.

Jurisdictional Unity and Oral Process

A new development set up by the new Constitution is the centralization of the administration of justice, especially with regard to judges currently under the executive branch. Judges of the military, police and minors previously were under the wing of the executive branch. The change will centralize the administration of justice under the Supreme Court, superior courts, tribunals and other courts; thus they will be under the judicial branch.

Another innovation in the judicial area is the introduction of oral process. Most Latin American legal systems require that the majority of a trial is done in writing. The new Constitution allows oral trials like those in the U.S. The purpose of allowing these types of trials is to expedite trials. To relieve the workload of courts, a legal services fee will now be charged to the parties in the trial; an exception will be made in criminal, labor, alimony and minors cases.

The new Constitution also creates an office of “justice of peace” to resolve certain disputes by mutual consent. It also recognizes arbitration, mediation and other alternative dispute resolution mechanisms.

Administrative De-Centralization

A non-division of the Ecuadorian territory is established, and administratively it is organized into “cantones” provinces and “parroquias.” Indigenous and afro-Ecuadorian territories will also exist.

The central government, through the transfer of its functions, attributions, competence, liabilities and resources to the different new entities, will attempt to more evenly distribute the wealth.

Investment and Economic Systems

Within the system of social economy of the market that will be effective in the country, there is an opening of the national markets, free competitiveness and rights of private property.

Public services such as electricity, telecommunications and ports will be the responsibility of the state, which can delegate such responsibilities to private or mixed companies. Such delegation will be made through concessions, association, capitalization, change of stock ownership and other methods which will guarantee that the contractual obligations agreed upon will not be changed.

Investment by foreigners is recognized by special treatments and, above all, the possibility of establishing guarantees in contracts that investors sign with the state, so that the laws or future provisions will not affect its clauses.

Mr. Cepeda Cassola is with the law firm of Serrano Puig & Associates. The firm's practice areas include patent and trademarks, commercial, civil, arbitration, constitutional and contracts.