Subversion of Democracy in the Americas

By Marcel D. Feraud

The Pattern of Subversion of Democracy in the Americas

THE JUDICIAL SYSTEM IN ECUADOR

Upon successfully accomplishing the return to democracy in 1979, the political establishment in Ecuador failed to recognize the importance of a judicial system operating within the democratic principles.

According to the 1978 Constitution, appointments of members of the Supreme Court responded directly to the congressional preponderant majority at a given moment. So, full bodies of the highest court were chosen “a la carte” and held office for as long as the nominating majority held its own. From the top down, in a pyramidal structure, all judicial positions had the same political genesis and original sin.

This dysfunction lasted for 20 years until the Constituent Assembly of 1998 established, for the first time in history, life tenure for the Supreme Court justices and cooptation to fill its vacancies. It created the National Judicial Council, a specialized body in charge of judicial nomination processes, this time by merit.

President Lucio Gutierrez, in 2005, in his most unfortunate decision, ceased the acting Supreme Court and appointed a puppet Court. This act caused such outrage that he later decided to reverse himself firing that Court, although creating a greater turmoil that marked the end of his presidency. As a result, Ecuador had no Supreme Court for eight months. His successor, President Alfredo Palacio, under international supervision, was able to organize a process based on merit that nominated a new Supreme Court.

When President Correa was elected, the life tenure and cooptation for new appointments was the law of the land, and a prestigious Supreme Court, with members appointed in a yearlong international process, was reinstating the rule of law in the country.

Nevertheless, the Constituent Assembly of 2008, under President Rafael Correa, eliminated the life tenure and cooptation for the Supreme Court justices and prescribed instead that they would be appointed by the National Judicial Council for a nine year period only. The members of the NJC were to be elected by the Council of Citizen Participation and Social Control, a novelty with a pompous name but with no feasibility in reality. After two years, they have been unable to deliver on any of their obligations. In the meantime President Correa made sure this fine Court was also fired, and appointed a provisional Court more to his liking.

President Rafael Correa has actually seized control of the judicial system. By utilizing judges and the Attorney General’s office, he threatens and actually persecutes political opponents, members of the press and of the business sector. Anybody who does not abide by his authoritarian and theological regime will be severely castigated. Human rights violations are mounting. Unfortunately outspoken human rights organizations that were previously pro active are now silent and have failed to denounce the government.

“Do not trust the romantic environmentalists. Anyone who opposes the development of the country is a terrorist” This line of the President at a televised address, became common language when characterizing leaders of the indigenous confederation.

Mobilizations lead by the organized indigenous community to denounce the use of water and the extraction of natural resources on their land were considered terrorists acts by the President. A strike and social protest in Dayuma, Orellana province, on December 1^st, 2007, received a severe military response, with grave human rights violations. The same accusation was leveled against the Indian leaders when they protested against Hugo Chavez presence at the indigenous summit of the ALBA countries, on June of 2010 in Otavalo, a city with preponderant Indian population. The Ecuadorean indigenous organizations were not invited to the summit and were accused by Chavez of being infiltrated by the CIA.

Marlon Santi, former President of the CONAIE, Confederacion de Nacionalidades Indigenas del Ecuador and Delfin Tenesaca, President of Ecuarunari, the two most important social organizations of the country are among 189 indigenous leaders accused of terrorism by the government. They were both outspoken in their rejection to the law aimed to regulate the use of water.

All these acts infringe the fundamental freedoms and human rights proclaimed by the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948. Article 19 of the said declaration states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

These cases deserve to be known by the world and should be brought upon de Interamerican Commission of Human Rights.

Currently, one of the questions posed by President Correa at the Referendum held on May 7^th, will allow him to constitute a three member commission empowered to nominate new judges and justices and a new NJC. This alone will be a regression of at least two hundred years of the judicial function. If President Correa is able to implement this undemocratic measure it is easy to foresee harsh repression and grotesque violations of human rights.

All the while, loyal and unconditional judges have allowed the government to get away with rampant corruption even when flagrancy and abundant evidence would not have left any other option but to prosecute and convict high level officials. Some of the most notorious acts of corruption that were committed with impunity are noted in the following:

THE PATIVIDEOS. Ricardo Patino, acting as Minister of the Economy was caught on camera on February 12, 2007, having a secret meeting with representatives of a consulting firm and brokers of foreign bonds, amid indications from the government that they would not honor the debt. Accused of giving privileged financial information regarding interest payments on bonds known as “global 20302”, he was sanctioned by Congress and ordered his destitution. The President disregarded the resolution of the Congress and weeks later named him Minister of the Coastal Region, a Ministry created just for him. The case that was initiated was dismissed by the Supreme Court.
CORRUPTION AT THE MINISTRY OF SPORTS. As unbelievable as it may sound, the Minister of Sports was accused of taking bribes and a Deputy at the Ministry actually ate the checks as he was raided by law enforcement. All this was caught on film, but nevertheless the Minister and the Deputy were cleared of all the charges.
THE DEALS OF FABRICIO CORREA. Companies and legal entities owned by Fabricio Correa, the President’s brother, now his detractor, were awarded contracts with the government for several hundred millions of dollars. According to the findings of an investigative commission, the President knew about his brothers dealings with the government. Not one single indictment has come out of this notorious case.
CORRUPTION AT THE CONSTITUTIONAL COURT. The brother of the Secretary of the Constitutional Court received a large amount of money by a company which days later was acquitted by the said court and exonerated of paying $90.000.000.00 owed to its workers. A copy of a $500.000.00 check from the company to the Secretary’s brother was published at the front page on all national newspapers. The Constitutional Court was not even subjected to an investigation. A few days later the Constitutional Court admitted the Referendum entered by the President.
ALLEGED CAMPAIGN CONTRIBUTION OF THE REVOLUTIONARY ARMED FORCES OF COLOMBIA, FARC TO THE 2006 PRESIDENTIAL CAMPAIGN. The President allegedly received a contribution of $100.000.00 to his 2006 election campaign from the Revolutionary Armed Forces of Colombia, FARC. This has been widely reported by the London based International Institute for Strategic Studies, on its recently published work: “The Farc Files: Venezuela, Ecuador and the secret Archive of Raul Reyes”. The Attorney General who is at the end of his period has opened an investigation.

The government has leveled other accusations, in most instances twisting the facts and denying due process. Amongst the most infamous cases we can highlight the following:

THE COUP DE ETAT AND ASSASSINATION ATTEMPT THAT NEVER HAPPENED. Following the high profile protest by the police force on September 30, 2010 that the President characterized as a “coup de etat” and an assassination attempt on his life more than fifty people, were unjustly incarcerated. Colonel Cesar Carrion, the Director of the Police Hospital where the President was taken during the chaotic events, was recently vindicated and released from jail , after being acquitted. Nevertheless he was held in detention, as a common prisoner, among criminals, for more than seven months. His only crime was to appear on CNN and declare that on September 30 there was neither a coup de etat nor a plot to assassinate the President. Upon his release he was ordered to report to his command post where he was informed that he would not be reinstated to his former position as Director of the Police Hospital. The Minister of Justice, defying the core of democracy has threatened to file charges against the judges.
APPROPIATION OF PRIVATE BUSINESSES AND ENTERPRIZES. About two hundred companies linked to the Isaias group, prosecuted for the fall of Filanbanco a decade ago, were raided by police and seized by the government in a dramatic operation that took place in July of 2008. Some of those companies were in the communication business including Gamavision and TC Television. It is worth noting that this networks are now a key element for blanketing the air waves with the government’s message. Corruption and mismanagement has also been reported on the part of the state appointed directors of these companies.
PRESSURE ON PRESS EDITORS AND JOURNALISTS. Extreme pressure and threats is constantly exerted over all independent media networks to control their news teams and political programs. Carlos Vera and Jorge Ortiz are emblematic examples of those rogue tactics. They both had to end their career in television as news and political reporters. Editorialists and investigative reporters like Emilio Palacio, Juan Carlos Calderon and Christian Zurita have been subjected to libel suits for their opinions.

The plan to take the justice hostage also includes the nomination of the Attorney General. The President is shamelessly imposing his candidate, Mr. Galo Chiriboga, who was once Correa’s personal lawyer, and was appointed by him to serve as President of Petroecuador, the national oil company and as Minister of the Interior. He is currently the Ambassador to Spain. The nominating committee organized by the Council of Citizen Participation and Social Control has made it clear that it will do whatever is needed to appoint Chiriboga as the next Attorney General. The President issued a public statement in the midst of the nomination process declaring that Chiriboga had won the contest by all means.

The environment in Ecuador is one of total distrust of the judiciary. All ranks of justice have been corrupted. The President now is responsible for picking all new judges and fixing the justice system. This is inconceivable and constitutes a grave injury to be inflicted upon democracy and governance in Ecuador.

The notion of the separation and independence of the branches of power has currently disappeared in Ecuador. More so, the notion of accountability has never been weaker.

The perception of justice has been alienated from the collective memory of the society as a whole. The longer this continues to be the case, and justice is subjected to this demise, the harder it will be to construct the foundation of a judicial system upon which democracy can exist.

Washington, May 26, 2011