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Democracy in coma
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Decisions by new authorities fail to respect rule of law.

A series of parliamentary moves have created an impasse in Ecuador’s democratic system, leaving the country without an constitutionally viable way to reverse the situation.

"The actions of the legislative majority in favor of the government have led us to a legal dead end. To resolve it, we will have to bypass the Constitution," said lawyer Edwar Vargas, adviser in the National Congress.

Vargas was referring to the precarious majority in Congress obtained by President Lucio Gutiérrez last year which allowed him to change the composition of the Constitutional Tribunal, the Electoral Tribunal and restructure the Supreme Court (LP, March 9, 2005).

In the meantime, the new representatives of the state organisms in question began to make decisions, also in violation of Ecuador’s legal framework.

In a decision that further shook up an already agitated political scene, Supreme Court president Guillermo Castro Dáger —militant of the Ecuadoran Roldosista Party (PRE), Congressional ally of Gutiérrez’s Patriotic Society Party (SP) —on March 31 annulled corruption charges against former President and PRE chief President Abdalá Bucaram (1996-97), former President Álvaro Noboa (2000-2003) and former Vice President Alberto Dahik (1992-95). Almost immediately, the three politicians returned from their respective exiles.

High usage of habeas corpus

In late February, Castro Dáger had begun legal proceedings against Bucaram’s opponents.

Castro Dáger ordered the arrest of Ret. Gen. José Gallardo, who played an important role in the protests that led to Bucaram’s ouster in 1997. The action led Gallardo, who is accused of buying outdated arms from Argentina during the 1995 border war between Ecuador and Peru, to employ a series of legal mechanisms, such as filing a habeas corpus. He was released, arrested again and then placed under house arrest. However, Gallardo won his freedom again on March 30.

"The speed of the arrests and the proceedings to win his release give an impression of an efficient court system, but the number of unprocessed actions of habeas corpus filed by Quito municipal government —which is able to use this mechanism of constitutional appeal— and the number release orders held up in the courts show that the orders are meant for a politician," said Silvana Sánchez, lawyer for the Regional Foundation for Assistance in Human Rights (INREDH).

Likewise, the president of Supreme Electoral Tribunal, Wilson Sánchez, on March 2 suspended a fine of nearly US$4 million imposed on former presidential candidate Álvaro Noboa for having exceeded campaign spending limits, in accordance with the budgets assigned by the tribunal to political parties, during the 2002 electoral campaign.

Sánchez was the head of Noboa’s election campaign and was charged with restructuring the National Institutional Action Reform Party (PRIAN), the party for which Noboa ran for president that year. According to the Electoral Law, Noboa must pay a fine equivalent to double the amount overspent. Sánchez remains to this day the legal representative of the PRIAN.

Growing legal tangle

To make the legal tangle even worse, the National Federation of Court Employees (FENAJE), and its leader Luis Muñoz Pasquel said the federation would support the Supreme Court restructuring in exchange for a pledge guaranteeing that court employees would not be laid off.

Muñoz proposed a new strategy: that the presidents of the Superior Courts of Justice of Quito, Guayaquil and Cuenca replace the current judges of the Supreme Court. The Federation launched a strike on March 14 in support of this solution.

Acceptance of this proposal would place the Supreme Court under the FENAJE’s thumb. Thus the power of Muñoz —who has remained at the head of this union for more than 20 years— would face no opposition and he would succeed in overcoming the questions over his leadership. According to an investigation by Hoy newspaper, Muñoz is involved in various acts of corruption.

As legislators and the executive branch consolidated their positions, the climate of violence in the country is growing. Since June 2004, 57 attacks and cases of intimidation have been registered against opposition congressmen, councilmen and journalists, according to the organization Citizen Participation.

United Nations Human Rights Commission involved

The legal situation and the series of attacks motivated the March 13-19 visit of Leandro Despouy, special rappateur on independence of judges and lawyers of the United Nations Human Rights Commission.

Nevertheless, Despouy’s mission was plagued by difficulties. He could not manage, in any of his interviews with top government officials, to get an adequate explanation with legal criteria about the country’s situation.

"I have heard political criteria and not technical criteria," said Despouy, who questioned the government’s control over the judicial apparatus.

Faced with this situation, Gutiérrez decided to leave the solution of the political crisis in the hands of Congress, presenting on March 28 a bill on reform of the judicial system.

The presidential initiative includes reducing the number of judges from 31 to 16, setting a maximum age of 75 to exercise this function and the election of the members of Supreme Court by a college made up of 13 members of civil society.

Therefore it is possible to predict that whatever solution that is found to the crisis, it will be made according to political interests and not in line with desires of the citizens of Ecuador and the Constitution.

"Any (Supreme) Court named by Congress will be a de facto court, the same as the current one," said the analyst and university professor Ramiro Ávila.

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