HUMAN RIGHTS IN ECUADOR'S NEW CONSTITUTION
TABLE OF CONTENTS
CONSTITUTIONAL PROTECTION OF INDIVIDUAL AND COLLECTIVE RIGHTS AND LIBERTIES
INSTITUTIONAL PROTECTION OF INDIVIDUAL AND COLLECTIVE RIGHTS AND LIBERTIES
AMENDMENT TO THE ADMINISTRATION OF JUSTICE IN THE NEW CONSTITUTION
AMENDMENTS TO THE PENAL SYSTEM IN THE NEW CONSTITUTION
Since February 1997, Ecuador has made important transformations both of its internal legal system and its political structure, which have influenced the functioning of the State and the protection of individual as well as collective rights of its citizens. Undoubtedly, this process has been materialized by the approval of Ecuador's new Political Constitution by the National Constitutional Assembly of June 5th, 1998. It includes really innovative provisions that are worthy of detailed analysis and examination in order to determine their scope concerning the situation of human rights in Ecuador. Before a detailed examination, it is noteworthy that at the same time that the new Political Constitution was approved, the State and other social organizations, on initiative by the Ministry of Foreign Affairs, prepared an unprecedented National Human Rights Bill that was passed by Executive Decree on June 1998. The content of the above-mentioned National Bill is similar to that included in the new constitutional provisions added to the current Political Constitution. Accordingly, I will refer to the later with hopes that those who are engaged in the application of the National Human Rights Bill could consider them as guide to an effective implementation in benefit of the basic rights of men, women and children in Ecuador.
II. CONSTITUTIONAL PROTECTION OF INDIVIDUAL AND COLLECTIVE RIGHTS AND LIBERTIES
II.1. General Principles
New elements have been introduced in the Constitution with respect to the general principles of human rights protection. The phrase "without any discrimination whatsoever" has been added to article 17 (formerly 20) with regards to the free exercise of rights. The new amendment also includes the obligation of the State to "take measures for the effective enjoyment of these rights through permanent and periodical plans and programs". This constitutional provision has given support to the implementation of the above-mentioned National Human Rights Bill. With regards to applicability of constitutional rights, article 18 (formerly 21) of the new Constitution states that rights and liberties included in international instruments in force may be directly and immediately applicable by and before any judge, tribunal or authority". This amendment is intended to avoid the reticence shown by judges and tribunals to apply international rules directly on specific cases.
The new Constitution includes important principles in the second and third paragraphs of article 18 which reads: "as regards rights and constitutional liberties, decisions shall abide by the most favorable interpretation of their effective force. No authority is entitled to demand requirements not provided by the Constitution or the law for the exercise of said rights." "Lack of norms may not be alleged to justify violation or ignorance of the rights stipulated herein, to dismiss upon the merits or to deny recognition of said rights".
Requirement of laws, pre-requisites or conditions not provided in the Constitution for the exercise of constitutional rights has been an established practice by state institutions. The new regulations intend to reduce such practice and protect constitutional liberties more effectively.Additionally, article 19 of the new Constitution introduces, for the first time, a supralegal protection in favor of the individual's dignity by stating that "the rights and liberties provided herein and in the international instruments do not exclude others derived from the person's nature, which are necessary for his/her full moral and material development". This constitutional provision facilitates the application, in favor of the individual, not only of the positive principles in the Constitution and the international conventions, but also of those rights inherent to the human person which may not be expressly recognized by positive principles. This amendment contributes to consolidate the ius cogens principles in the Ecuadorian internal legal system, thereby hindering misdirected practices of lawyers and judges inasmuch as only positive laws in force are applicable to the citizen, and not other principles of international law generally recognized by the community of states. The prevalence of the Constitution over any other law remains intact. Accordingly, internal laws are required to agree with the Constitution, otherwise they are null and void. An interesting amendment (art. 273) has been added in this respect, which reads "courts, tribunals, judges and administrative authorities shall be obligated to apply the relevant constitutional laws, albeit parties concerned do not refer to them expressly". The Ecuadorian State and society will have to make their best efforts so that judges and lawyers become conscious of the need to comply with this basic provision that clearly protects the individual. The former Constitution (Art. 172) only empowered the Supreme Court and courts of last resort to render the non-applicability of juridical provisions contrary to the constitutional law only in those cases in which their judgment was delivered. In the new Constitution (Art. 274) "any judge or tribunal" is empowered to do so not only in cases of provisions contrary to the Constitution but also in opposition to international conventions and agreements. This amendment considerably promotes opportunities to protect individual's rights in the specific case where laws contrary to constitutional provisions and international conventions support the action of judges and recognize similar hierarchy to international conventions on the matter. As regards the State's obligation to compensate private individuals for violations of human rights, the new Constitution (Art. 20) provides that, besides the institutions of the State, "their delegates and representatives are obligated to compensate private individuals for any damage caused as a result of a deficient rendering of public services or by the acts of officials and public servants in the exercise of their duties". This amendment is important since not only state institutions might be liable in such cases but also those individuals or corporations who, under contractual or legal obligations, render public services in a negligent manner, thereby causing damages to citizens' human rights. Article 20 of the new Constitution agrees with article 459 of the Penal Code's Procedure which empowers parties to a judicial proceeding to bring an action of compensation for damages caused by judges and penal magistrates in the context of illegal acts, delayed administration of justice and undue imprisonment of defendants. Article 20 also concurs with article 193 of the Constitution itself which states that any delay in the administration of justice chargeable to a judge or magistrate shall be punished by the law.
The new Constitution maintains the State's liability for judicial error, improper administration of justice, and actions resulting in the imprisonment or arbitrary arrest of an innocent person(s). The State shall have the right to repetition against the judge or official liable (Art. 22). The clarity of this provision is self-evident; therefore, any individual affected by the violation of procedures may appeal to this constitutional provision in order that his/her constitutional rights be duly acknowledged. A major advance in the new Constitution with respect to people's rights and liberties is the explicit classification of rights in civil, political, economic, social, cultural and collective rights, according to the current doctrines of international law on human rights. Most rights included in this classification were recognized by the former Constitution but in a general and not organized manner, with an emphasis on civil and political rights more than on economic, social and cultural rights. The new structure explicitly recognizes the principles of universality and integrity of all human rights which now have equal importance and hierarchy and require identical effective protection.
II.2. Civil Rights in the New Constitution
Important amendments as to civil rights have been introduced in the 1998
* To protect people's integrity, violence is classified in physical, psychological, sexual or moral coercion, and the application and misuse of human genetic material (art. 23, number 2, first paragraph) are prohibited. Also, "the State shall take all measures required to particularly prevent, eliminate and sanction violence against children, adolescents, women and aged people". Thus, for the first time the Constitution explicitly prohibits family violence and promotes the proper and effective application of the respective Law passed in 1995.
* The new Constitution provides, as one of its most valuable amendment, that lawsuits and punishments for genocide, torture, forced elimination of people, kidnapping and homicide for political or moral reasons (Art. 23, number 2, third paragraph) are not prescriptible. It also adds that such crimes shall not admit pardon or amnesty. In such cases. compliance with superior orders shall not exempt anybody from responsibility. According to this revolutionary amendment, impunity for these crimes, which has been common in the Ecuadorian system of justice, will be completely banished, even in cases of special jurisdiction, since no limits to action or punishment may be adduced. The added provision that obedience to superiors orders does not exempt anybody from liability intends to reduce the action of police officers against people's life and integrity.
* As regards equality before the law, the new Constitution prohibits discrimination for reasons of ethnic background, sexual preference, health, disabilities or any other reason (Art. 23, number 3). The introduction of prohibition of discrimination for reasons which were not explicitly mentioned in the former Constitution extends the range of protection to the rights of vulnerable groups such as ethnic minorities, homosexuals and lesbians, and people discriminated for disabilities and illnesses such as AIDS. By adding the phrase "or any other reason", the Constitution conforms to the provisions of international conventions on human rights such as the American Convention on Human Rights (art. 1.1.) and the International Convention on Civil and Political Rights (art. 2.1.) which prohibit discrimination for "any other social condition". In this respect, it is worthy to be noted that before the above-mentioned constitutional amendment was made, homosexuality was unpenalized as a crime. By Resolution No 106 (R.O 203, as of November 27, 1997) the Constitutional Tribunal suspended the effects of article 516 of the Penal Code which punished homosexuality, as it was considered discriminatory with respect to sexual preferences and opposite to International Conventions on Human Rights.
* The Constitution also prohibits slavery and servility as well as the traffic of human beings of any kind, adding that "nobody may be forced to act against the law or not to obey the law" [check!] (Art. 23, number 4), an issue included for the first time the constitutional law. With respect to individual freedom, the new Constitution adds the individual's right "to freely develop his/her personality without other limitations than those imposed by the system of laws and other people's rights" (article 23, number 5) Thus, this amendment incorporates one of the basic human rights stated by the Universal Declaration of Human Rights and other international conventions. * The new Constitution introduces the right to freely choose goods and services (art. 23, number 7). A special paragraph includes consumer rights (art. 92) and provides that a special law shall determine the mechanisms to control quality, procedures of defense, repairs and indemnity for deficiencies, damages or bad quality of goods and services and the interruption of public services not caused by catastrophes, act of God or force majeure, as well as the penalties for the violation of such rights. Since these rights were not included in the former Constitution, they will afford more protection to citizens, particularly when basic public services are interrupted with serious effects to the most helpless sectors of the population.
* The new Constitution includes the right to means of social communication and equal access to radio and television frequencies (article 23, number 10), which reduces discrimination caused by economic or political conditions in the application of this right. * As regards the freedom of conscience and religion, besides the limitations previously mentioned in the former Constitution, other abridgments of this right have been added with respect to diversity and plurality (article 23, number 11): other people's security and rights. The restriction with respect to "public morality" has been deleted as it entailed subjective aspects that might affect the actual exercise of the above-mentioned constitutional rights.
* The new Constitution preserves the right of petition (Art. 23, number 15) used to bring complaints and petitions to authorities and to obtain an answer in a reasonable period of time. The phrase "and in accordance with the law" has been deleted as it restricted the exercise of this right by submitting it to the personal criteria of public officers protected by secondary laws.
* The exception provided by the former Constitution to the prohibition of declaring one's political or religious beliefs, which read "excepting cases provided by the law", has been deleted since neither religion nor ideology have been considered pertinent for purposes of investigation. This amendment affords more protection to this fundamental right. Likewise another amendment has been added which reads "personal information of third parties about their religious beliefs or political affiliation may not be used, nor any other information concerning their health and sexual life, except if medical care is required" (article 23, number 21). This addition seeks to avoid prejudices that may discriminate people for their sexual preferences or health conditions. Another related amendment acknowledges the individual's "right to make free and responsible decisions on his/her sexual life" (article 23, number 25).
* New amendments include the right to identity, in accordance with the law (article 23, number 24), thereby complying with article 18 of the American Convention's right to the name. This provision acknowledges the right of minors to have first and family names and makes it a constitutional right.
* Considering the slowness shown in the administration of justice in Ecuador, two additional rights have been added to the Constitution which were not formerly included: the right to judicial security and the right to a due process and an administration of justice without delay (article 23, number 26, 27). This explicit acknowledgment affords higher hierarchy and legal transcendence to these prerogatives, as the right to receive a timely judgment was only acknowledged before by secondary laws. * With respect to the right to have a due process, the new Constitution includes the application of "penalties alternative to the loss of liberty, considering the nature of each case, the infringer's personality and his/her rehabilitation" (article 24, number 5). This innovative provision will enable to effectively rehabilitate the offender and reduce crowded prisons in the country. A substantial amendment of special rules (Code for Enforcing Judgments) is obviously required for this purpose. Meanwhile, judges shall apply these obligatory amendments in accordance with the above-mentioned constitutional principles as these may not be subject, for their fulfillment, to the lack of law or any requirements and conditions.
* An important amendment as to the offender's right to have a due process provides that "upon arrest, everybody shall have the right to know clearly the reasons for his/her arrest, the identity of the authority who ordered the arrest, the police officers who execute it and the officers in charge of the interrogatory" (article 24, number 4, first paragraph). The new Constitution also includes the obligation to inform the person arrested of his/her right to remain silent, to request the presence of a lawyer and contact a family member or any person indicated by him/her. Additionally, the new Constitution includes the penalty for those who have arrested a person with or without a written order from a judge and do not prove to have immediately brought him/her to the competent authority (article 24, number 4, second paragraph). These amendments facilitate, in the first place, that in cases of abuse of power and violation of rights, the person arrested may bring action against officers involved, as in most cases the failure by police officers to identify themselves results in impunity. Second, the new Constitution introduces, for the first time, the right to remain silent and reaffirms the right to communicate with a lawyer or a family member or acquaintance, as this prerogative was provided only in special laws. Third, although the obligation to immediately bring the person arrested to a competent authority is acknowledged by secondary laws, the practice of holding the person incommunicado for investigation before delivering him to a competent judge forced to include such obligation in the Constitution. Accordingly, this obligation is reinforced with the amendment that reads "nobody may be held incommunicado" (article 24, number 6), thereby excluding the former possibility of holding a person incommunicado for twenty-four hours.
* Considering the serious violations of human rights as a result of the almost generalized practice of extending the preventive custody during the criminal trial, the new Constitution has incorporated an exemplary amendment providing that "preventive custody shall not exceed six months in actions for crimes penalized with arrest, or one year in actions for crimes penalized with imprisonment. Should these terms not be observed, the order of preventive custody shall no longer be effective under responsibility of the judge trying the case" (article 24, number 8). This amendment conforms to the twenty-eighth transitory constitutional provision which establishes that individuals accused for crimes punished with imprisonment who have been arrested for over one year with no sentence shall immediately be released, without prejudice to the full prosecution of the penal lawsuits against them. The provision also establishes that the National Council of Judicature shall penalize judges who have acted with negligence in the respective proceedings. This constitutional provision has enabled a great number of defendants to obtain their liberty and has reduced crowded prisons. However, judges usually do not act so as to comply with the provision of article 24, number 8, with respect to preventive custody for crimes punished with imprisonment (including crimes related to drug trafficking) which establishes that preventive custody shall not exceed one year, otherwise it loses effect. Accordingly, it is a priority that judges attain full independence from the police system which in many occasions, mostly in cases of drug trafficking, question those magistrates who terminate proceedings within the terms stipulated in the constitutional provisions.
* The fundamental right that establishes the lack of probative value of judicial and administrative acts in which the person under arrest has been examined without the presence of a private lawyer or one appointed by the State (article 24, number 6). As acknowledged by the Inter-American Human Rights Commission, this provision intends to banish tortures, cruelty, inhumanity and degradation from the practice of police officer during examinations.
* The right of defense includes the obligation of the State to provide public counsels for the defense of Indian communities, workers, women and minors abandoned or victims of family and sexual violence, as well as of any individual who does not have the means necessary. This amendment follows, at least in theory, one of the recommendations made by the Inter-American Human Rights Commission in its 1996 Report on Ecuador, which suggested the participation of public counsels in favor of the most vulnerable groups and the State's obligation to increase the number of these officials throughout the country. However, the State has not had the economic resources required to fulfill this demand.
* A new provision not included in the former Constitution refers to the right of any individual to be timely and duly informed in his/her mother tongue of the actions prosecuted against him/her (article 24, number 12). This new amendment affords minorities and ethnic groups speaking languages other than the official one more protection of their rights by allowing them to be defended in their own language, thereby reducing discrimination caused by the administration of justice in a tongue other than the defendant's mother language.
* For the first time, the Constitution includes the obligation by public authorities to provide grounds for their resolutions (article 24, number 13), as established by secondary laws. Likewise it includes the invalidity of evidence obtained or performed with violation of the Constitution or the law (article 24, number 14) and the access of the parties to documents related to the judicial proceeding, particularly to the examination of witnesses and experts who have the obligation to appear before the judge and answer the questions raised (article 24, number 15). These amendments encourage a more effective defense of the prosecuted by giving them the opportunity to know the content of all related documents.
II. 3. Political Rights in the new Constitution
Several interesting amendments with regards to political rights have been introduced in the new Constitution:
* A new right has been added to the variety of political rights in favor of citizens: the right to terminate the term of public officials elected by popular vote (article 26). This right was included taking into consideration the political events experienced in the country in February 1997. It grants citizens a fundamental political control over their rulers which was not available before because of the requirements set by the Constitution and secondary laws.
* As regards the right to vote, for the first time the Constitution has introduced the alternative that Ecuadorians living abroad may elect President and Vice-president of the Republic at their place of registration. It also includes the suspension of human rights for judicial interdiction or sentence ordering a penalty of imprisonment for the time it stipulates (articles 27 and 28).
* For the first time the Constitution explicitly incorporates the foreigners' right of asylum (article 29), a prerogative supported by laws and special regulations as well as by related international conventions, to which Ecuador is a signing party.
II. 4. Economic, social, and cultural rights in the new Constitution
* As regards the right of property, the Constitution adds that intellectual property (included in the former Constitution under article 22, number 18) shall be protected according to international conventions in force and the corresponding provisions of law (article 30, third paragraph). This amendment conforms to articles 18 and 274 of the new Constitution which grant equal hierarchy both of constitutional provisions and international conventions with regards to their applicability in the internal legal system, as mentioned above.
* For the first time the Constitution grants "equal rights and opportunities for men and women in accessing resources for production and making economic decisions for the administration of the property held by the spouses" (article 34). Equal opportunities in the administration of community property was already included in the amendments made to the 1989 Civil Code but not with the scope determined in this constitutional provision which also stipulates equal access to production and property.
* As regards the workers' right to strike, the new Constitution has added a new paragraph which prohibits "the paralyzation, for any reason whatsoever, of public services, specially those of health, education, justice, and social security; electricity, drinking water, and sewage system; processing, transportation and distribution of fuels; public transportation and telecommunications. The law shall establish the corresponding penalties" (article 35, number 10, third paragraph). This amendment was already included in the former Constitution (Registro Oficial 199, November 21st, 1997) but now includes the sectors of justice and social security as well as the restriction of the "public" to the services listed. The former Constitution did not explicitly mention the "public" quality of the services referred, and so the provision might have been interpreted so as to include workers of the private sector rendering such services. This abridgment of the right to strike in the public sector conforms to article 92 of the Constitution in force which establishes penalties to employees and repairs to citizens and consumers affected by the interruption of public services when occurred not by act of God or force majeure. Thus, the new Constitution resolves an issue intensely debated in Ecuadorian society with regards to the contradiction between workers' right to strike and the people's right to health, life and physical integrity, particularly in case of individuals and the poor who have no other alternative to public services rendered by the State.
* An interesting amendment with respect to the right to work modifies substantially the former provision that states that it is obligation of the State to "improve working conditions for women". The new amendment incorporates explicitly the State's obligation to "promote the inclusion of women in the paid work system with the same rights and opportunities [as men], assuring equal pay for equally valued work" (article 36, first paragraph). Although the principle is unanimous as to women obtaining equal pay as men, it was not included before neither in the Constitution nor in secondary laws. Therefore, this amendment represents a step forward in the compliance with international human rights conventions.
* Article 36 of the new Constitution (second paragraph) includes not only respect for labor rights but also for women's reproduction rights in order to improve their working conditions and access to a system of social security. Accordingly, mothers are incorporated as a sector requiring maximum protection not only during pregnancy but also during the lactation period; the amendment includes women from the crafts sector besides other groups already identified in the former Constitution (women from informal sectors, heads of family and widows). The recognition of reproduction rights is understood as the respect that women deserve in order to freely and responsibly make their own decisions on their sexual life without being coerced by their partners. This amendment conforms to article 23, number 25, of the new Constitution which establishes the above-mentioned right.
* In the internal system of laws, for the first time the new Constitution includes non-paid household service as productive labor (article 36, third paragraph). It should be noted that the former Constitution provided that "the partner's work shall be equally paid in special situations of economic disadvantage". This amendment implies that not only women's but also men's household service may be paid, particularly when the spouse or partner working at home is economically disadvantaged in comparison to the other spouse or partner. To comply with this amendment, not only new internal laws and regulations are required, and it is recognized that deeply rooted sociocultural ideas in men and women need to be changed.
* As regards family rights, the new Constitution establishes full equality between civil marriage and common-law marriage. It states that the family "shall be constituted by civil-law or common-law links on the basis of equal rights and opportunities for both spouses or partners" (article 37, first paragraph). By including for the first time equal opportunities, the new Constitution strengthens a doctrine that has been defended internally, in particular by women's and children's rights movements, while it recognizes that common-law marriage also constitutes a family with the same rights and duties as civil marriage. Additionally, article 38 of the new Constitution provides that such equality include the legal presumption of paternity and the property held by spouses, thereby deleting previous restrictions to common-law marriage where the former Constitution only recognized the right to establish community property "so far as applicable", without mentioning equality of rights like in civil-law marriage. The second paragraph of the above-mentioned article includes women's right to protection as heads of family. This amendment will positively influence the protection of minors born in common-law marriages and of women abandoned by their partners who think that common-law marriage does not have any juridical validity in case of dissolution, mainly as far as presumption of paternity is concerned.
* For the first time, the new Constitution includes as an obligation of the State to inform, educate and provide the means to promote responsible maternity and paternity, encouraging parents to make their own decisions on the number of children they may bring up. This amendment includes "responsible maternity", which implies not only equal responsibilities between mother and father as well as responsibility of mothers who are heads of family and whose number in Ecuador is increasing.
* The new Constitution has deleted the words "paternal authority" that were misinterpreted in the sense that parents had the right to mistreat their children in their exercise of their authority. Now instead of the State protecting mothers, fathers and heads of families in their fulfillment of parental duties, the law speaks of "paternal co-responsibility and reciprocal rights and duties between parents and children" (article 40). Moreover, it states that adoption criteria shall not affect children's equal rights. The former provision only referred to affiliation. Now, the second paragraph of this article maintains the provision intended to reduce abortions practiced by single mothers and establishes that "upon birth registration, statement of affiliation status is not required and this status shall not be mentioned in the document". This provision conforms to the amendment introduced in the 1992 Code on Minors which establishes that every child has the right to be immediately registered by the mother at the Civil Registration Office with the mother's maiden name or that of the presumed father regardless of any future lawsuit for the acknowledgment of paternity.
* Family rights also include the obligation by the State, through the specialized organization in affording equal opportunities for men and women (Women's National Council, founded in 1997) to incorporate the "gender" approach in plans and programs and provide technical assistance for the obligatory application thereof in the public sector.
* The former Constitution recognized the right to health assistance in different provisions (article 22, number 15; article 36; article 42, number 2) with respect to civil rights, family rights and social security. The new Constitution includes a whole paragraph on this fundamental right and gives a major emphasis to health issues by connecting them to fields such as environmental protection in order for people to enjoy the right effectively. Accordingly, the Constitution establishes that "the State shall assure the right to health assistance and the promotion and protection thereof, by developing food security, rendering proper drinking water and sanitation services, fostering healthy family, labor and community environments, and providing permanent uninterrupted health care services, in accordance with the principles of equality, universality, solidarity, quality and efficiency". To these principles already acknowledged by the former Constitution, the concept of "quality" has been added.
* As regards the right to health assistance, the new Constitution includes the principle that health programs and actions shall be gratuitous to everyone and that public medical care services shall also be free to people who need them. By no means emergency attention at public and private medical institutions may be denied to patients (article 43). This is the first time the Constitution states in such a general manner that public medical care services may be used by people who need them. This could lead however to misinterpretations as to the actual enjoyment of this right. The last phrase of the above-mentioned provision conforms to the constitutional law in that the latter prohibits to bring to a stop public services including health assistance, as analyzed above.
* An important amendment has also been made which provides the State's responsibility "to promote culture for health and life with an emphasis on food and nutritional education for mothers and children as well as sexual and reproduction health with the support of society and the media". Accordingly, the State shall implement programs with a view on eliminating alcoholism and other types of drug abuse (second paragraph, article 43). For the first time the Constitution provides that society and media are obligated to participate in educating society. Usually the State had to act without the assistance of the community. This practice has begun to disappear as society itself is becoming aware that community-oriented changes must be made jointly. It is noteworthy that the new provisions emphasize sexual and reproductive health, which conforms to the constitutional right to "make free and responsible decisions on sexual matters", particularly when the lack of proper sexual education causes problems such as undesired pregnancies mainly among adolescents. Therefore, education on these issues is a priority in order for the right to make decisions on sexual matters may be exercised responsibly, as stated in the Constitution, without negative effects, such as abortion, as the only alternative left. Although different kinds of drug abuse have not been eliminated by concrete programs, an amendment has been made to the Law on Narcotic and Psychotropic Drugs (article 105, second paragraph, R.O. 173 as of October 15, 1997) which states that drug addicts who have been arrested with possession of narcotics or psychotropic drugs for their own use shall be considered "sick" and may not be imprisoned, but rehabilitated at a health center. This provision will have retroactive effects considering its special nature. This amendment avoids individuals from being arrested or prosecuted only for their quality as drug addicts.
* An interesting amendment establishes that the State "shall recognize, respect and promote the development of traditional and alternative medicine, the practice of which shall be regulated by law; likewise the State shall promote scientific-technological advances in health areas according to bioethical principles" (article 44). In this sense the law suggests that alternative medicine and scientific advancement should be limited by ethic principles, the general nature of which might open a vast field for juridical and moral interpretation. However, the recognition of the practice of alternative medicine is an important step forward.
* The former Constitution provided a nation-wide health system with the participation of public and private sectors, which has been supplemented with the obligation of the State to organize it in a decentralized, non-concentrated and participatory manner (article 45). This amendment confirms the emphasis given by the new Constitution to the active participation of the entire society in areas of its concern such as health and education.
* Because budgetary allocations by the State have been one of the causes for the lack of efficient public health services mainly to the detriment of impoverished sectors of the population, the new Constitution establishes that "public entities of the national health system shall be financed with sufficient obligatory allocations from the State's National Budget, contributions from users of public health services who have means enough to make such contributions, and from other sources stipulated by the Law" (Article 46). Moreover, the second paragraph of the above-mentioned article provides that "allocations made by the State for public health shall be increased on a yearly basis according to the percentage of increase in the current total income of the national budget. There shall not be budgetary reductions in the field of public health". As regards the first paragraph, there are no regulations to determine exactly the capacity to make an economic contribution by those citizens who may use public health services. In practice this provision will not be fully applicable since social sectors with means enough to make a contribution use private health services or services partially subsidized with medical insurance. Therefore, citizens using public services will always be poor people who choose services precisely because they are free. With respect to the second paragraph of the above provision, governmental compliance is expected even in spite of the country's financial crisis. The State has the obligation to give priority to health allocations and reduce sumptuary expenses in the context of a fiscal policy based on an effective taxation of well-off citizens and not on the reduction of health allocations protected by the inalienable right to health, in particular, as far as impoverished sectors of the population are concerned. In any case, the constitutional obligation not to reduce budgetary allocations for health is stated in precise terms so as to avoid excuses or explanations in case of negligence.
* For the first time the Constitution explicitly classifies impoverished sectors as "vulnerable groups" (fifth section, chapter 4, title 1) by stating that "specialized and preferential attention shall be given in public and private sectors to children, adolescents, pregnant women, people with physical or mental disabilities, patients with highly complex illnesses and elders. The same attention shall be given to people at risk and victims of household violence, child abuse, natural or anthropogenic disasters" (art. 47) According to the previous terminology, the former Constitution recognized preferential rights only to "minors". The new Constitution uses the term "children and adolescents" instead, in accordance with international conventions on the protection of children. Aged people and "minors" were previously included in the paragraph on "Family". Since the new Constitution has added other groups considered as "vulnerable", this provision represents a substantial advance in the doctrine of universal, integral and complementary human rights, specially as private sectors are also engaged in the protection of these groups.
* The articles 48 and 49 of the new Constitution refer to the protection of children and adolescents. Previously the Constitution established that "minors have the right to be protected by their parents"; the new Constitution has replaced the term "parents" with "family" and provides the obligation by the State and society to protect their rights and "promote children's and adolescents' integral growth with full security by assuring the full exercise of their rights. In all cases, the principle of children's superior interest shall be applied and their rights shall prevail over other people's rights" (article 48). The last principle was already included in the previous Constitution; what is new is the obligation to apply the "superior interest" in favor of this social group in all cases, that is, without any possibility to make exceptions.
* The last provision is complemented with the amendment that "children and adolescents shall have all rights inherent to the human being besides those specific to their age. The State shall secure the right of life from the time of conception; the right of physical and psychological integrity; the right of identity, name and citizenship; the right of health and nutrition; the right to participate in society and enjoy other people's respect with liberty and dignity; and the right to be consulted in matters concerning them". With respect to the right of life, the former Constitution implicitly prohibited abortion by stating that "the child shall be protected from the time of conception". The new Constitution makes such prohibition more explicit by establishing the State's obligation to assure the right of life from the time of conception. This provision does not abridge women's sexual and reproductive rights as the Constitution itself points out that they have the right to make free and responsible decisions on sexual matters, and there is no contradiction between both provisions. Evidently, for women to make responsible decisions on sexual choices, sexual education and orientation are required which the State and society have the obligation to provide in order to avoid abortion as the "last solution". The prohibition of abortion does not contradict international conventions, since the Convention on Children's Rights reads "the signing States recognize that every child has the inherent right to life" (article 6, number 1).
* The 1996 Constitution established most of the rights included now under article 49. However, new amendments have been introduced such as the right of children to have a family as stipulated by the 1999 Convention on Children's Rights. Another amendment includes the children's right to be consulted, not in accordance with laws, as stated by the former Constitution, but on matters concerning them. However, the most revolutionary amendment represents the fight for the citizenship off children and adolescents. This amendment is coherent inasmuch as the new Constitution annuls the division between citizens and non-citizens by making all Ecuadorians from the time of their birth (article 6) citizens with all the rights established in the Constitution with regards to civil or political rights. Therefore, children and adolescents as citizens may file complaints and charges before authorities either personally or by an intermediary as stipulated by the laws concerning these proceedings (habeas corpus; habeas data and right of protection). Similarly, as far as political rights are concerned, these new amendments stipulate that children have the right to elect and be elected, to submit bills, to be consulted (cf. article 49), to supervise the performance of public entities, to terminate the term of officials elected by popular vote, and to hold public offices. owever, the provision itself adds that such rights shall be exercised in those cases and with the requirements stipulated by the Constitution and the law. Accordingly, children may not effectively exercise the rights to elect and be elected and to hold public offices as the Constitution and the laws establish the limits of their applicability. However, they do have the right to be consulted on matters concerning them and to have freedom of speech and assembly, since these rights are stipulated by article 49 of the Constitution and are not abridged by specific laws.
* Article 50 of the Constitution in force recognizes other specific rights related to children and adolescents, some of which were included in the former Constitution but not stated in detail as now. This set of rights detailed in the new Constitution include, for instance, protection against ill-treatment, physical or psychological violence and labor exploitation. Other new rights are: priority attention to children under six with respect to nutrition, health, education and daily care; rehabilitation of children with disabilities; protection against traffic of children, pornography, prostitution, sexual exploitation, use of narcotics, psychotropic drugs and alcohol; prevention from discrimination and negligence; priority attention in cases of disasters and armed conflicts; protection against the influence of harmful programs and messages transmitted by the media which promote violence, racial and gender discrimination and false values. In part this provision has been included as a result of related international conventions signed by the State. The last right conforms to the new provisions in favor of consumer rights as referred above.
* For the first time the Constitution states that children and adolescents under eighteen are subject to laws on minors and a special justice administration in the Judicial Sector (article 51). This provision implies the disappearance of administrative judges whose task was to enforce laws on minors. These judges are now incorporated in the Judicial Sector as part of the judicial system as a whole. The former justice administration system depended on the Central Government (Ministry of Social Welfare) and could not act with transparency and autonomy precisely because it was subject to the Executive within a centralized model. The Judicial Sector is expected to attain a more effective, rapid and transparent administration of justice on the basis of the rights and liberties provided in the 1996 Constitution and the new constitutional amendments for the independence and autonomy of the sector.
* Article 52 establishes the State's obligation to organize a national decentralized system for the integral protection of children and adolescents. The ruling body of this system shall be comprised of representatives of the State and civil society on an equal basis, and their function is to make policies in this field. This provision proved necessary as there are several entities from the State and civil society which work for children but without coordination (Ministry of Social Welfare, Municipalities, Provincial Councils, Instituto Nacional del Niño y la Familia and other NGOs).
* Article 53 warrants the rights of disabled people which had been previously recognized in the Law on Disabilities (Law No 180, R.O. 996 as of August 10, 1992). It provides the obligation to grant certain benefits for disabled people, for instance, special sidewalks for easier transit and access to public places as well as the obligation by the private sector to allocate a legally stipulated percentage of jobs for disabled people and to grant them tax exemptions and preferential fares. The Constitution ratifies these provisions and states that priority shall be given to disabled people in poverty conditions so as to integrate them in society and give them equal opportunities. The Constitution also establishes the right of disabled people to communicate in alternative ways. The State shall take steps required to incorporate such alternative ways of communication in schools' curricula for an effective integration of disabled people in society.
* As we have mentioned before, the former Constitution acknowledged the protection of the elderly but only superficially and without the explicitness required. Instead, the new Constitution provides that the State shall grant elders and retired people the right to receive special assistance that secure them appropriate living conditions, free health care services and preferential conditions in tax payment and services in general (article 54). It also states the obligation of the family and society to provide the elderly and other vulnerable groups with the appropriate economic and psychological assistance that may ensure their physical and psychological health. These provisions conform to those stated in the Law on Elders (Law No 27, R.O. 806 as of November 6, 1991) which prohibit discrimination for reasons of age and the obligation to grant certain benefits to elders such as the right to pay only 50% for specific public services such as land and air transportation and other fares and taxes. Some sectors of the State and the civil society, particularly in the private sector, have fulfilled these provisions satisfactorily. Nevertheless, the family itself does not make their contribution to provide elders with economic and psychological assistance as stipulated in the Constitution.
* As regards the right to social security, the new Constitution maintains the principle of non-transferability of this right not only for employees, as stated before, but also for all inhabitants, with the participation of public and private sectors in accordance with the law (article 55). As opposed to the former Constitution which referred only to Ecuadorians, the new Constitution includes foreigners under the category of 'inhabitants'. This interesting amendment confirms the general constitutional principle that society must also participate in promoting human rights, which implies that the Law on Social Security must be substantially amended because it has been designed only to protect public and private employees. In the last few years the government established voluntary social security for people who have worked previously but are not currently working or are working not as legal employees. The amendment seeks to extend the obligatory system to the entire population, as provided in the former Constitution and maintained in the new one (article 54, second paragraph).
* For the first time the Constitution explicitly recognizes that the national social security system shall be ruled according to the principles of solidarity, obligation, universality, equality, efficiency, subsidization and sufficiency in order to meet individual and collective needs for the common welfare (article 56). The principle of obligation conforms to the above-mentioned amendment. Of the principles stated above, those of efficiency and subsidization are worthy to be noted. The first intends to change the present conditions and practices which avoid an effective rendering of services. The latter intends for people of means to use private services and subsidize others with their contribution. The principle of obligation has been the most debated in political and juridical fields because the deficiency shown by the Social Security System in rendering services led some sectors to make it a voluntary non-obligatory system. This may have considerably reduced the State's revenue to the detriment of poor sectors of society which use it as their only choice of health and social security (this is the case of widows, disabled people, elders, etc.). Perhaps the administrative changes implemented by the State in the social security system may allow the fulfillment of the efficiency principle without any detriment to the solidarity and obligation principles.
* The new Constitution includes a clause for retired people and elders. It provides a yearly adjustment of their pensions according to the solvency of the pension fund which shall be capitalized so as to provide these people with pensions according to their basic needs of maintenance and the cost of living (article 59, final paragraph).
* The new Constitution confirms the peasants' right to social security which remained unspecified in the former Constitution because it was stipulated in by the respective Law. The amendment also supports the prevalence of the solidarity principle over other laws as it provides that both the insured as well as the insurers in public and private sectors are obligated to contribute to its fund (article 60).
* Article 61 expresses the principle of subsidization by stating that an optional complementary insurance may be contracted against contingencies not covered by the obligatory general insurance in order to secure higher profits. Complementary insurance will be funded with the contribution of beneficiaries who are insured and who funds are administered by public, private, or public and private entities regulated by law.
* As regards cultural rights, the new Constitution promotes interculturality and establishes the State's obligation to make policies and develop institutions according to the principles of justice and equality of cultures (article 62), explicitly recognizing the pluriculturality and multiethnicity of the Ecuadorian State and the rights of Indian and afro-Ecuadorian peoples in particular. For the first time the Constitution includes the right of access to goods, services and cultural expressions on equal conditions and with equal opportunities (article 63).
* The new Constitution extensively warrants the right to education and has introduced several related amendments: the Constitution recognizes the right to education as: a compulsory right of every individual; obligation of the State, society and the family; a priority area for public investment. Education must further human rights and gender equality; and the State must provide disabled people with education opportunities (article 66). Accordingly, the government will have to make some changes in the curricula in order to introduce human rights and peace education in all subjects and units of study. The activities of the National Human Rights Bill include the above-mentioned measures which already have been applied by the Ministry of Education, although reaching the subject of gender only.
* Article 67 establishes that public education shall be free up to the high-school level. Free education was recognized by the former Constitution up to the university level. Therefore, the new restriction, explained by political reasons, affects sectors without the means enough to access education. To ameliorate this situation, the Constitution establishes that students living in extreme poverty conditions shall receive specific subsidies and nobody may be deprived of the right to education for economic reasons. Accordingly, university level education entities shall implement programs of credits and scholarships (article 77). However, this provision needs further regulation in order to warrant the rights of the poorest sectors of the population. The new Constitution maintains education as obligatory up to the Junior high-school level and includes the preferential promotion of education in rural and border areas.
* Although several projects had been already developed in this field, the new Constitution explicitly recognizes a bilingual intercultural education system and maintains the use of the students' native language as the main language to be used in their education and the use of Spanish as a language of intercultural relation (article 69).
* It is the State's obligation to allocate not less than the thirty percent of the central government's total current income for education and literacy programs (article 71). A strict fulfillment of this constitutional obligation is expected from governments. Additionally, the new Constitution provides the participation of society in the funding of education by means of voluntary economic contributions to be deducted from the payment of tax duties in accordance with law (article 72).
* For the first time the Constitution includes the right of science, technology and communication under the category of economic, social and cultural rights (article 80 and 81). The first right shall be furthered at all levels with hopes of improving productivity, sustainable management of natural resources and meeting of people's basic needs. The second recognizes the people's right to access information sources as well as to seek, receive, know and diffuse objective and truthful uncensored information on a timely basis. Journalists' right to professional secrecy is also warranted as provided by special laws. Confidentiality of information in public files is prohibited except for reasons of national security and others established by law. The last provision permits the reservation of official information affecting individual and collective rights. The most interesting provision that conforms to constitutional rights and civil liberties is that which prohibits "publicity on any media which promotes violence, racism, sexism, religious and political intolerance and affects the dignity of human beings in general". Compliance by the media is strongly expected, as they usually bring forth the excuse of non-censorship to arbitrarily transmit information which affects this right and mainly causes gender discrimination.
II. 5. Collective rights in the New Constitution
As regards collective rights, the new Constitution recognizes the following:
* The rights of Indian and afro-Ecuadorian people. Notwithstanding the deep-rooted belief that citizens are identical, the new Constitution explicitly recognizes, for the first time, the rights of Indian and black groups in the country. The former Constitution stated that the Ecuadorian State is pluricultural and multiethnic, and this principle has been maintained. The makers of the new Constitution did not get to an agreement on the plurinational character of the Ecuadorian State, at least that is what may be deduced from article 83 which establishes that "Indian and afro-Ecuadorian peoples are part of the Ecuadorian State which is one and indivisible". However, to include a special section for the collective rights of these groups (articles 84 and 85) implies a significant advance to consider cultural diversity as not opposite to national unity. The new Constitution provides that the corresponding laws shall organize the government and administration of territories inhabited by Indian and afro-Ecuadorian nationalities (article 241) considered as "Indian and afro-Ecuadorian territorial districts" under Title XI with regards to "Territorial Organization and Decentralization", "On Special Governments", stating that "there shall be a special government of territorial administration for demographic and environmental reasons. As regards the protection of areas under special government, the rights of domestic migration and labor may be abridged and any other activity damaging the environment may be restricted as well. The law shall regulate special governments" (article 238, first paragraph). In order to reduce the effect of the abridgment of these constitutional rights, it is provided that residents affected by such restrictions shall be compensated with a preferential access to available natural resources and associations founded to protect patrimony and family welfare. These provisions imply that Indian and afro-Ecuadorian governments are, like municipalities, autonomous entities in charge of organizing and rendering public services, participating in the preparation, approval and execution of infrastructure and development projects, and sharing in the resulting revenues. A major juridical precedent that contributed to the inclusion of these provisions is the ratification by the Ecuadorian State of the 169 OIT Agreement on Collective Rights of Indian Peoples in April 1998.
* The most important collective rights for Indian and afro-Ecuadorian peoples include the following: the right to preserve an identity and tradition in terms of spiritual, cultural, linguistic, social, political and economic aspects; to maintain the ancestral and non-transferable ownership of community lands which shall be inalienable, non-attachable and indivisible, excepting the State's right to declare their public usefulness and including the exemption from payment of real-estate taxes; to share in the use, usufruct, administration and conservation of renewable natural resources in their lands; to be consulted on projects of exploitation of these or any other resources which may affect them environmentally or culturally; to share in profits and receive indemnities for social and environmental damages; to maintain collective intellectual property of ancestral lore; to maintain, develop and administer their cultural and historical heritage; to preserve their knowledge and practice of traditional medicine; to preserve and develop their traditional ways of social life and organization (including the administration of justice and the application of their own rules and proceedings in solving conflicts according to their own customs and customary right, provided these are not contrary to the Constitution, the laws, public order and human rights (arts. 191 and. 84, first paragraph). The above abridgment intends to point out that the recognition of cultural values does not imply the violation of basic rights recognized in the Constitution and international conventions. Collective rights in this sense represent a clear application of the provisions of the OIT 169 Agreement.
* The right to live in a healthy and ecologically balanced environment on the basis of sustainable development (article 86, first paragraph) is another collective right included in the new Constitution. While the former Constitution included this right in general terms, the new Constitution has added the State's obligation to warrant the conservation of nature, which gives a major emphasis to this obligation stated in secondary laws. It is noteworthy that the new Constitution includes the environmental issue in other constitutional rules such as those regarding the rights of Indian and afro-Ecuadorian peoples, science and technology, and citizens' civil liberties (Art. 23, number 6). Accordingly, environmental rights are construed as exceeding individuality and comprising the collectivity as a whole. The new text maintains part of the former, basically on aspects related to environmental protection which are deemed public interest, including the recovery of damaged natural spaces which was not stated in previous constitutions.
* Rules are maintained which establish the kinds of administrative, civil and criminal penalties for actions or omissions against environmental protection (article 87); the prohibition of producing, importing, holding and using chemical, biological and nuclear weapons, and the State's obligation to regulate these activities (article 90) and indemnify citizens for any environmental damages caused (article 91).
* Provisions included in article 89 of the new Constitution are novel in the field, as they establish the State's obligation to promote the use of environmentally clean technologies and non-polluting alternative energies in public and private sectors; to determine tax exemptions for those who perform environmentally healthy actions; to regulate the spreading, experimenting, using, marketing and importing of genetically modified organisms. This provision conforms to the clause on scientific and technological advances in health according to bioethical principles (article 45) and the genetic integrity of human beings in accordance with article 23, number 2 which prohibits the application and misuse of human genetic material.
* Consumers' rights represent another merit of the new Constitution. These rights were included for the first time in the Constitution after a long history of debates in favor of their recognition and promotion. Interestingly, this provision (article 92) establishes civil and criminal liabilities not only for those who render public services but also for those who commercialize consumer goods (the private sector) considered non-consumable for causing damages to the health and physical integrity of citizens. This amendment furthers the creation of consumers' associations and provides that the State shall be liable for damages caused to inhabitants in rendering public services. In these terms, consumers' rights transcends individuality and becomes collective.
III. INSTITUTIONAL PROTECTION OF INDIVIDUAL AND COLLECTIVE RIGHTS AND LIBERTIES
III. 1. Habeas data application
GENERAL RULES ARE MAINTAINED with the following amendment. In case of damages caused by failure to act, the defendant may claim indemnity (article 94, third paragraph). This amendment intends to attain an effective application of this right, as some officials usually act so as to ignore it or to delay its application. The Constitution in force includes a very interesting provision that allows defendants access to personal data in files on national defense to avoid citizens' rights from being violated on account of the exception provided by the former Constitution which speaks of "documents reserved for national security reasons".
III. 2. Action for Constitutional Protection of Civil Rights (article 95)
The new Constitution entitles collectives to exercise this right by mediation of a representative. It also states that proceedings in this case shall be carried out in a preferential and summary manner. This constitutional right may be exercised not only in case of actions but also of omissions by a public authority or by people rendering public services or acting as delegates of such authority. It may also be exercised also in case of violation of rights ratified by international conventions and rights recognized by the Constitution, against private individuals when their behavior has seriously and directly affected collective or community interests. This provision multiples the chances to file lawsuits on the basis of this right, formerly known as appeal, except for judicial decisions made in proceedings which are subject to specific judicial appeals duly provided in secondary laws. The possibility to file lawsuits against private individuals conforms to the authority entitled to the People's Defender to act in case of actions or omissions by private individuals who have violated individual and collective rights. According to the new Constitution, the law shall determine penalties to authorities or individuals who do not abide by the sentence rendered by the judge under this appeal as well as to judges or magistrates who violate the respective proceedings which remain unaltered. The new Constitution also entitles the judge to take the steps required for the execution of this law, including the use of public force (article 95, paragraph 7). Neither procedural rules contrary to the constitutional guarantee nor provisions that may delay normal proceedings shall be applicable. Accordingly, judges are not permitted to appeal to special and secondary laws that hinder the immediate and effective execution of this right.
III. 3. People's Defender (article 96)
All powers entitled by the former Constitution to the People's Defender are maintained, except for the addition of another function related to the defense of consumers which establishes the authority to supervise the quality of public services. The principles of autonomy and immunity are also maintained. Moreover, human rights organizations must be heard in their election and their term must be five years, not four as in the former Constitution, thereby making them more independent from other offices of the State which are elected on a four-year basis.
III. 4. Habeas corpus application(article 93)
Procedures and functions are generally maintained. A provision has been included which states that the defendant shall be presented before the municipal authority within twenty-four hours from the receipt of application, and said authority shall render judgment within the following twenty-four hours. This amendment is intended to avoid any unsupported delay. Likewise, the new Constitution provides, for the first time, civil and penal liabilities in case the Major does not proceed as stipulated by law. These amendments shall avoid this application from being ignored by municipal authorities as evidenced in some cases.
III. 5. The Constitutional Tribunal
The Law on Constitutional Control was issued to regulate the functioning of the Tribunal (R.O. 99, July 2, 1997). The new Constitution introduces some amendments regarding the authority of the tribunal:
* Pass judgment related to international conventions before their approval by the National Congress in accordance with the Constitution. Although this provision delays the proceedings to ratify conventions, it has been included in order for conventions not to contradict the constitutional rule, although in practice this case could not occur, as most constitutional provisions abide by the principles and rules stated by international conventions on human rights which have been signed and ratified by the State.
* Judicial orders shall not be subject to control by the Constitutional Tribunal. This provision is intended to protect the independence of judicial decisions, precisely because organizations of justice administration have constitutional and legal rights that permit them to act with care and efficacy. Therefore, they can no longer argue that the rules and regulations prevent them from performing their functions with diligence and justice. Moreover, as we all know, judicial orders may be controlled and reviewed under specific judicial appeals according to law. This amendment conforms to the provision previously mentioned in the sense that judicial decisions shall not be subject to appeals for protection. Some juridical doctrine has argued that these rules represent a serious abridgment of citizens' rights as a high percentage of violations of basic rights occur in the administration of justice, and appeals may be a useful mechanism to cease or remedy the consequences of an action or omission by a judicial authority. Obviously, the juridical nature of the appeal prevents this situation, precisely because such appeal was to be filed before the judicial authority.
* As regards the authority to know the resolutions that deny applications for habeas corpus, habeas data and the constitutional protection of civil rights action, the new Constitution provides that, at the request of the interested parties, the Constitutional Tribunal or the People's Defender, as formerly provided in the Constitution, are also entitled to know said resolutions. Accordingly, this amendment allows individuals to file the appeals directly before the Constitutional Tribunal in case of negative resolution.
* To the declaration of non-constitutionality, the new Constitution has added that should the official or officials not comply with the resolution made by the Tribunal within thirty days from its publication in the Official Gazette, the Tribunal, officially or at the request of the parties, shall determine penalties according to the law.
III. 6. Separation of the Department of Public Prosecutions from the Attorney General's Office
The amendments introduced in the Organic Law (R.O. 26, as of march 19, 1997) granting more autonomy to the Department of Public Prosecutions secure a better promotion and defense of society as the functions of procedural investigation are independent from other offices of the State. According to these amendments, the Court Police becomes subject to the Department of Public Prosecutions. Another step forward in this direction has been the foundation of the School of Prosecutors based in Quito and with branches in other districts of the country, by Ministerial Agreement No 060 as of December 17, 1997. Moreover, the constitutional rule has ratified this independence by explicitly establishing that "the Department of Public Prosecutions is one, indivisible and independent as to its relation to other public offices, with administrative and economic autonomy". "The Department shall warn about the meaning of acts and words, as well as conduct and promote pre-procedural and procedural investigation". "For the performance of its functions, the Attorney General's Office shall organize and lead a specialized police body and a legal medical department". "It shall supervise the application of penitentiary laws and the social rehabilitation of the criminal, and watch over the protection of victims, witnesses and other people involved in penal lawsuits" (articles 217 and 219). These innovative amendments intend to make proceedings more rapid and effective. Moreover, police members will not be in charge of pre-procedural investigations anymore. Their function will be oriented to enforce judicial orders and decisions made by the Department of Public Prosecutions as to the investigation and punishment of crimes only. Additionally, as the Department of Public Prosecutions has a specialized personnel, practices violating human rights such as torture or forced elimination of people will be considerably reduced.
IV. AMENDMENT TO THE ADMINISTRATION OF JUSTICE IN THE NEW CONSTITUTION
IV.1. DEPOLITICIZING OF JUSTICE, through the last appointment of magistrates of the Supreme Court of Justice by a Special Commission comprised of representatives of society and the State and not by the National Congress. This Commission assessed the lists of candidates submitted by all sectors of society and finally appointed 31 highly qualified judges who are independent from political parties. These magistrates shall hold their offices for an undefined term except in case of violation of constitutional and legal rules. This amendment strengthens the independence of justice and introduces a general authority principle stated in the former Constitution which establishes that magistrates and judges shall act independently in the exercise of their jurisdictional authority even before other bodies of the Judicial Sector; they shall be subject only to the Constitution and the law (article 199, second paragraph). Magistrates and judges are prohibited to practice law or perform any other public or private function, except for university teaching, and to fill a position in political parties or to participate in electoral campaigns (article 205).
IV.2. As a result of the Consultation carried out in May, 1997 the National Council of Judicature was founded as the organization responsible for administrative and government aspects of the Judicial Sector along with the appointment of judges for lower courts and tribunals and the application of disciplinary punishments for breach of the Constitution and the laws. This amendment enables judges of courts and tribunals to work only on the administration of justice and not on administrative issues. The structure and functions of this Council are regulated by its organic law passed by the National Congress on the 8th of January, 1998, and ratified by the Executive on the 23rd of the same month and year.
IV.3. The gradual incorporation of oral proceedings in the procedural system within the next four years, for which end the National Congress shall amend the laws as necessary and the Judicial Sector shall adapt the facilities to the new system (Twenty-seventh Transitory Provision of the 1998 Constitution in force). The absence of oral proceedings in the procedural stages has been one of the causes of judicial corruption. This amendment shall be implemented completely within the next four years until all facilities required may be available. The purpose is to reduce judicial corruption and promote diligence in proceedings. This amendment complements article 194 of the new Constitution which establishes that the furnishing and refutation of evidence in proceedings shall be carried out orally in accordance with procedural principles [?principios dispositivo] of concentration and immediacy [?inmediación].
IV.4. As an alternative system, not against the principles of jurisdictional unity maintained in the new Constitution (article 191, first paragraph), a provision has been included which establishes the appointment of judges of the peace who shall resolve individual, community and local conflicts (article 191, second paragraph). This alternative judicial system is complemented with a proceeding of arbitration included in the former Constitution which stipulates mediation instead of negotiation. The appointment of judges of the peace will enormously reduce the responsibilities of the Judicial Sector in the country. This represents a significant innovation by the new Constitution.
IV.5. Judicial offices for Indian peoples (article 191, fourth paragraph) where rules and procedures for internal conflicts shall be applied in accordance with customs, provided they are not contrary to the Constitution and the laws. For the first time, the internal system of laws creates an special judicial subsystem which, provided it concurs with fundamental rights, does not affect jurisdictional unity but, on the contrary, promotes diligence in the proceedings and reduces judicial discrimination to which Indian people are commonly subjected to in the administration of justice.
IV.6. The new Constitution includes the obligation of the procedural system to enforce the rights in the proceedings and watch over the fulfillment of the principles of immediacy [?], swiftness and efficiency in the administration of justice (article 192). Such principles were stated in special laws but not explicitly recognized in the Constitution. The new Constitution recognizes them as a complement to other principles regulated in the previous Constitution: simplification, uniformity, efficacy, and swiftness in the proceedings (article 193). The provision maintained establishes that any delay in the administration of justice chargeable to a judge or magistrate shall be punished according to law.
IV. 7. As regards the principle of publicity of lawsuits, the new Constitution includes the prohibition to broadcast judicial proceedings or the recording by people other than the interested parties and their lawyers (art. 195). This new restriction may be interpreted as a protection of the parties' rights, however it limits the freedom of the press and opinion, particularly in lawsuits affected by public interests (for instance, in cases of corruption).
IV. 8 The principle is maintained which states that administrative actions by an authority from any other office and institution of the State may be objected before the pertinent bodies of the Judicial Sector (art. 196).
IV.9. One of the major amendments in the field of justice administration is the provision which establishes that "all magistrates and judges in the Executive Sector shall become part of the Judicial Sector and, unless otherwise stated, shall be subject to its own organic law. Should other public officials be entitled to administer justice in certain matters, they shall lose such authority which is to be transferred to the corresponding bodies of the Judicial Sector. The National Council of Judicature shall submit the projects required to amend the law in order to allow for the application of this provision to the national Congress. Administrative personnel currently working at civil and military courts and tribunals, police courts and children's courts, whose stability is secured, shall be part of the Judicial Sector (Twenty-sixth transitory provision of the Constitution in force). One of the recommendations stated by the Inter-American Human Rights Commission in its 1996 Report on the Human Rights Situation in Ecuador stated that "any individual involved in the violation of human rights, regardless of his/her conditions as civilian or police member, shall be subject to the corresponding proceedings stipulated by the ordinary jurisdiction" (page 17). The above-mentioned transitory provision fulfills this recommendation because police and military jurisdictions will be part of the ordinary jurisdiction once the National Council of Judicature submits to the National Congress the amendments to the respective laws. Lower judges formerly subject to the Executive (Ministry of Social Welfare) will be similarly relocated.
V. AMENDMENTS TO THE PENAL SYSTEM IN THE NEW CONSTITUTION
V.I. For the first time, the Constitution has introduced a special section on the national penitentiary system (chapter 4, title VIII). Principles included in the article 208 refer to those established in special related laws. What is new about this provision is the introduction of education and work training for the individual who has received a sentence, with the purpose of making his/her rehabilitation possible. The provision also states that prisons shall have the material resources and facilities appropriate to provide physical and psychological health care. It also permits non-profit private institutions supervised by the State to administer prisons. The above-referred article includes an amendment that required a constitutional status although it was formerly stated in special laws, because crowded prisons prevent the fulfillment of the principle according to which defendants must remain under preventive custody and those with a sentence must be secluded in centers for social rehabilitation
V.2. The Constitutional Tribunal (R.O. 222, as of December 24, 1997) suspended the exclusion of people imprisoned for crimes stipulated in the Law on Narcotics and Psychotropic Drugs, so that they may benefit from amendments to the Penal Code which reduce the population in prisons (Law 04, R.O. 22, as of September 9, 1992). According to this constitutional amendment, people imprisoned for drug trafficking who have been there longer than stipulated by law may be released. This also applies to people prosecuted for common crimes, as occurs in fact.
V.3. One of the most positive amendments debated nation-wide has been the twenty-eighth transitory provision of the new Constitution which states the judges' obligation to release people accused of crimes punished with imprisonment who have been in prison longer than one year with no sentence, without prejudice of the full prosecution of the penal lawsuits against them. The National Council of Judicature shall punish judges who have acted with negligence in the respective proceedings. As we have mentioned before, this provision has allows a great number of people to be released, thereby reducing the crowding of prison overcrowding. This amendment was necessary because of judges' common practice of keeping the prosecuted under undefined provisional custody, which has been considered by international organizations as a violation of human rights conventions signed by the State. Usually, judges refused to release the prosecuted after the reasonable period of preventive custody because they do not trust other preventive measures that can secure the presence of the defendant in the lawsuit, except for bail in the case of those well-off. The most serious inconvenience has to do with drug trafficking crimes as the corresponding law excludes defendants in such situation from the bail mentioned in article 180 of the Code of Criminal Procedure. Nevertheless, the new constitutional amendments (article 23, number 8) state that people prosecuted for drug trafficking (a crime punished with imprisonment) shall be released if the preventive custody period has exceeded one year, after which it loses effect and the judge trying the case is responsible for enforcing the law.
After reviewing these significant constitutional advances in the field of human rights, we can conclude that Ecuador is experiencing an unprecedented period of legal changes in which the State and the whole society are promoting the effective enjoyment of individual and collective rights as stated in the Constitution. As such the country may open to the new millennium with better perspectives for the real "human development" we are all looking for.
1. CONSTITUCION POLÍTICA DE LA REPUBLIC DEL ECUADOR, Gaceta Constitutional, June 1998.
2. CODIFICACION DE LA CONSTITUCION POLITICA DE LAREPUBLICA DEL ECUADOR, Registro Oficial No 2, February 13, 1997, Corporación de Estudios y Publicaciones, May 1998.