Critical notes on judicial control of constitutionality in Ecuador

Abstract

The approval of the Constitution of the Republic of Ecuador (CRE) in 2008 marked a major shift in the paradigm of Ecuadorian constitutional law. From that moment on, and in light of the new state of rights and social justice enshrined in the Constitution, the Constitutional Court (CC) was conceived for the first time as a specialized body independent from the other functions of the State. It should be noted that during the twentieth century Constitutional Courts were also instituted, but their structure and powers were not precisely those of a body with constitutional jurisdiction that fully exercises its action. Thus, the 1945 Constitution created the Court of Constitutional Guarantees (TGC) as a body of constitutional control, dependent on the other powers of the State, with little competence to carry out control over the law. In this article, a brief analysis will be made of the evolution of constitutional jurisdiction in Ecuador. Since the 2008 Constitution, the way in which the State is organized in Ecuador has a direct impact on judicial control of constitutionality, given that all judges occupy a stellar position as guardians of the rights of those who come before the judicial administration. This is the case, at least formally, since in jurisdictional practice there is a marked gap between the formal design and the materialization of the rule of law. Nevertheless, the declaration of unconstitutionality of the law is an exclusive competence of the Constitutional Court. The judges of the various courts limit themselves to collaborative work with the organ in charge of constitutional jurisdiction. That said, the possibility of ordinary judges declaring the unconstitutionality of any legal norm has been strictly outlawed.

Received: 20.11.2020
Accepted: 21.12.2020