The newly elected President of Ecuador, Guillermo Lasso, who took office on May 24, 2021, and the Ecuadorean National Assembly should prioritize implementing Constitutional Court rulings that advance human rights protections, Human Rights Watch and the Observatory of Rights and Justice (Observatorio de Derechos y Justicia, ODJ) said today. In many cases, the court specified action required by lawmakers and the president to carry out its rulings.
Outgoing President Lenín Moreno led a process that sought to restore the independence of key institutions, including the Constitutional Court, and made other important changes to repair damage to democratic institutions inflicted by former President Rafael Correa from 2007 to 2017. A transitional Council of Citizen Participation appointed nine new, well-respected jurists to the Constitutional Court in 2019. The court has issued multiple rulings since then that protect the rights of women and girls; prisoners; refugees and migrants; and lesbian, gay, bisexual, and transgender people, and address critical human rights matters like freedom of expression and use of force.
"Lenín Moreno's most significant legacy is helping to strengthen key democratic institutions after Rafael Correa's blatant attempts to undermine the rule of law and judicial independence during his decade in power," said José Miguel Vivanco, Americas director at Human Rights Watch. "The adherence to international and constitutional standards shown by the current Constitutional Court is a milestone in Ecuadorian democracy; its rulings upholding basic rights should guide policy decisions and legislative debates during Lasso's presidency."
Human Rights Watch and ODJ reviewed a series of judicial rulings relating to human rights in light of international law requirements, reviewed the steps that had been taken to carry them out, and determined what additional action was needed.
Lasso took office in a country that faces significant human rights challenges, compounded by the Covid-19 pandemic and the economic hardships it has exacerbated. The 137 lawmakers of the National Assembly, where Lasso lacks a majority, also started their four-year term in May 2021.
In several rulings, the Constitutional Court has found certain laws unconstitutional, including those restricting same-sex marriage and abortion in cases of rape. In these cases, the court itself changed laws or mandated the adoption of specific laws consistent with their rulings and international standards. President Lasso and other relevant authorities should comply with these rulings by promptly proposing appropriate legal reforms. The National Assembly should prioritize debate and passage of new legislation in accordance with international human rights standards.
In other rulings - including some involving women's education and prisoners' health - the justices have called for new measures to protect or guarantee fundamental rights. In such cases, the Lasso administration should develop policies and work with lawmakers to draft bills in accordance with the rulings and international standards.
Human Rights Watch and ODJ have analyzed the following Constitutional Court rulings, which Ecuador's incoming leadership should follow and implement:
- Decriminalization of abortion in all cases of rape. This ruling, issued in April 2021, decriminalizes abortion for anyone who is pregnant as a result of rape. A previous law allowed such abortions only if the person had a "mental disability" - an intellectual disability. The court left the door open to further decriminalization.
- Affirmative Action. The court ruled that a public selection process for judges that gave additional points to women was necessary to eliminate discrimination and increase women's representation.
- Women and girls' right to education. The court held that suspending or expelling someone from school for being pregnant or giving birth or for their marital status constitutes discrimination and violates the rights to education, freedom, and the realization of a life project.
- Right to civil marriage and unions for same-sex couples. In three separate rulings, the court recognized the right to same-sex marriage, citing provisions against discrimination in constitutional and international law.
- Standards on the use of force by law enforcement agents and armed forces. The court ruled that a resolution adopted by the Ministry of Defense that had allowed the armed forces to participate in law enforcement activities was unconstitutional. It held that the role of the armed forces in law enforcement activities should be exceptional, regulated by law, and only employed when absolutely necessary.
- Judicial independence. The court ruled that the Judiciary Council - charged with appointing and removing judges - cannot sanction a judge, prosecutor, or public defender for "inexcusable error," "criminal intent," or "evident negligence" without a prior judicial finding supporting the sanction. The Judiciary Council had used sanctions during Correa's government to arbitrarily remove judges.
- Right to freedom of speech. In two separate judgments, the court ruled that all restrictions on freedom of speech must comply with international standards, and urged the judiciary and other public institutions to ascertain whether future or existing restrictions on freedom of speech meet those standards.The court also ruled that public institutions and figures are not entitled to the same degree of protections for reputation or honor as private citizens, and highlighted the importance of the right to freedom of speech during elections.
- Protection of migrants and refugees. In three separate rulings, the court upheld the rights of refugees and migrants to due process, including by prohibiting collective removal and upholding the principle of nonrefoulement, which prohibits returning people to a country where they would be subject to torture or abuse; and by prohibiting deprivation of liberty for immigration purposes.
- Prisoners' right to health. The court held that prisoners must have access to health services, including appropriate and quality medications, treatment, and care.
In each ruling, the court identified specific steps, described below, that should be taken by relevant authorities to ensure those rights are adequately protected in Ecuador.
President Lasso issued a public statement on April 28, after the court's ruling decriminalizing abortion in cases of rape, saying that he and his government will honor the decision out of respect for the basic principles of democracy, despite his personal convictions opposing abortion.
His government should promptly implement all Constitutional Court rulings that protect fundamental rights, Human Rights Watch and ODJ said. Additional rights-related cases remain pending before the Constitutional Court.
"As it decides on its policies and practices, the Lasso administration needs to take into account Ecuador's international human rights obligations, including interpretations by the Inter-American human rights system that have been upheld by the Constitutional Court," said María Dolores Miño, executive director at ODJ. "Such obligations entail not only refraining from committing human rights violations, but also taking concrete steps to prevent them and to protect rights."
