Ecuador: IBA Urges Reforms to Strengthen Judicial Independence

There is an urgent need to establish an independent judiciary in Ecuador and mechanisms to protect that independence, according to an International Bar Association (IBA) Human Rights Institute report released today.

The Report, Ecuador: Strengthening of the Judiciary, reveals a nation and people whose opportunities for development and the protection of human rights is held back by political interference in the judiciary and the misuse of power.

The recent forced departure of President Gutierrez is the latest in a catalogue of former Ecuadorian heads of state in exile. Their exit, often clouded by allegations of corruption and misuse of power, clearly demonstrates the volatile political crisis the country is in.

‘We urge those currently in power not to make the same mistakes as past administrations,’ says Ambassador Emilio Cárdenas, Human Rights Institute Co-Chair. ‘Ecuador needs to be taken on a new road, and the independence of the judiciary is the key issue to be addressed in order to find the political stability and economic development the country and its citizens deserve.

There must be an end to all interference by the Executive in judicial matters, support for major reforms to the justice system, and a steadfast commitment by all those involved to protect the rule of law. The country’s new leaders will be judged by whether they can rise to this challenge.’

Although the constitution provides for the separation of powers between government and judiciary, the provision is often ignored. Currently, political control and interference in the judiciary is rife, without effective protection of judicial independence.

The process of judicial appointments is often subject to political influence. There is also concern regarding possible political influence being exerted over the Attorney General’s office. There is little access to justice with only those from the affluent sectors of society able to use the justice system.

Faith in the justice system is at an all time low, with the majority of citizens viewing it as a tool of those in power to further their own interests. The independence of the Supreme Court and Constitutional Courts in particular, whilst protected under national legislation, has not been respected in practice.

In order to prevent further deterioration and unrest, the establishment of an unambiguous separation of powers is imperative according to the Report, which makes other key recommendations including the following,

  • The delegation calls on the authorities to look for means to fulfill all regional and international obligations in these issues, formulating policies in agreement with the commitments made.
  • Urgent reform is required of those rules that currently undermine due process and allow interference in judicial matters by external forces. Reforms are also needed to establish more control over those responsible for the setting-up and maintaining of the justice systems.
  • The issue of the appointment of the Attorney-General must be resolved as a matter of urgency. The appointment must be made in an independent and just fashion.
  • The Attorney-General must guarantee that all those situations that represent a breach of law are effectively investigated. In this regard, regulations should exist that control the Attorney-General with respect to ensuring the fulfillment of his/her duties and compliance with standards of ethics and independence. In particular, but not limited to this, the delegation considers it essential that the Attorney-General takes those measures required to initiate investigations into recent cases of violence. Such cases should be investigated and taken in conjunction with the full legal system to ensure that both criminal and political cases are taken in a transparent, equitable and just manner, in accordance with the laws governing the country.
  • A better system for appointments should exist for the National Council of Judiciary (Consejo Nacional de la Judicatura), as well as respect for the system of appointments based on qualifications and merits within the legal profession. There should be more adequate regulation of the ‘co-opting’ mechanism.
  • The Ecuadorian Legislature should concentrate its efforts on the development of better regulations and codes of conduct, as well as adequate regulatory mechanisms that will curtail and prevent any intervention in, or manipulation of, judicial power.

Download reports in English and Spanish in the 'related documents' section below.

Members of the IBA delegation to Ecuador were:

  • Ambassador Emilio Cárdenas, Co-Chair of the IBA’s Human Rights Institute, previously President of the IBA, Argentina.
  • Judge Antonia Saquicuray, Judge of the Fifth Special Criminal Court (Anti-Corruption) of the higher Court of Justice in Lima, who has been investigating the cases of corruption in the current Government and those of Fujimori and Montesinos, Member of the Association of Judges for Justice and Democracy, Peru.
  • Diana Morales Lourido, Lawyer and expert in international law and human rights law, Colombia.

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Esther Major (in Ecuador)

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