Next week, US Assistant Secretary of State for Western Hemisphere Affairs Roberta Jacobson will travel to Ecuador to meet with Foreign Minister Ricardo Patiño in the hopes of easing recent tensions between the two countries. Before the dialogue starts, however, Jacobson may want to brush up on her knowledge of 17th century British policy, the source from where Ecuador seems to be taking most of its political cues as of late.
It was James I of England, the authoritarian 17th century ruler, who gathered the kingdom’s judges to declare that he had the sole power and jurisdiction over matters in which he took special interest. This power grab provoked Edward Coke, highest judge on the Court of Common Pleas, to argue that royal powers were restricted to the common good and that the kingdom’s judges are there to prevent authoritarian rule.
As a result, the concept of judicial independence was born and later codified as what we know in the United States, the United Kingdom, and other modern societies as the “checks and balances” necessary for a representative democracy to work.
The current president of Ecuador, Rafael Correa, considers himself not only the head of state, but also head of the judiciary, making him a modern day King James.
After the adoption of a new Constitution in 2008, Correa reconfigured Ecuador’s judiciary in his favor. First, Correa created the Organic Code on the Justice System, where he introduced a concept called “inexcusable error” that would later be used to purge judges and magistrates. Soon after, in July 2011, he established the Transitional Judicial Council with the power to hire, fire, and/or reappoint judges and prosecutors at all levels throughout the country. He then filled this council with five members from his cabinet. The president of the council, Gustavo Jalkh, is a former cabinet minister of Rafael Correa.
Correa proceeded to reshuffle the National Court of Justice, a court with jurisdiction throughout Ecuador, with new judges to his liking. To provide legitimacy to this judicial maneuvering, Correa ordered the formation of an international oversight committee headed by former Spanish Judge Baltasar Garzón. This same Spanish judge also happens to lead the legal team of Wikileaks founder Julian Assange. This move by Correa, however, nearly backfired.
The international oversight committee identified major problems with Correa’s judicial reform. It concluded that several judges nudged by Correa into the national court were simply not fit for duty. More importantly, the committee recognized that the concept of “inexcusable error” was too vague and provided no guidelines for judges to know if they are meeting the new criteria. As such, the new tool could be used as legal precedent to purge Ecuador’s judges and magistrates.
Moreover, the Inter-American Court of Human Rights, based in Costa Rica, described the precedent as a “concern” and argued that language like “inexcusable error” is the type of ambiguous term that enables the executive to exercise unjust authority over judicial powers. Furthermore, such a precedent is incompatible with the standards set forth in the American Convention on Human Rights of 1969. A concern that has long been echoed within Ecuadorian civil society.
Several high-ranking Ecuadorian officials have disputed the work of the international committee led by Garzón, arguing its conclusions are non-binding and that Ecuador’s judicial system need not recognize them. Yet, the “inexcusable error” clause remains in force, hanging like a sword of Damocles over Ecuadorian judges and magistrates claiming independence from the all-powerful executive.
James I of England never succeeded in fulfilling his goals, but left unchallenged, Rafael Correa will certainly rewrite the rules of Ecuador to become one of the world’s most successful 21st century dictators. In defending the judicial independence of Ecuador, Assistant Secretary Jacobson will not only stand up against the authoritarian ideologies that exist in Latin America today, but those that took root centuries ago.