Alvaro Noboa

World Interparliamentary Union Assembly in Geneva

The 117th World Interparliamentary Union Assembly, whose members are 146 parliamentarians from around the world, convened in geneva on october 8, 2007 and spoke out against the unconstitutionality of the dismissal of 57 opposition assembly members by the supreme electoral tribunal.

The 117th World Interparliamentary Union Assembly celebrated in Geneva at the beginning of October last year unanimously approved the conclusions and recommendations contained in the report of the mission which, by Human Rights Committee recommendation, visited Ecuador from 18 to 20 June to consider the accusation presented by 57 representatives to the committee.

The mission was presided over by Senator Rosario Green from Mexico who gathered the information, meeting with authorities from across the country. Previously, a delegation of the three political parties - Gloria Gallardo of the PRIAN, Fernando Aguirre de Sociedad Patriótica, and Alfredo Serrano of the Social Cristiano - went before the Human Rights Committee in Geneva to deliver all the documentation relevant to the case.

The unanimously approved conclusions of the report manifest its concern regarding the events, and point out the following:

N. DELEGATION'S CONCLUSIONS

1.- The delegation is conscious of the fact that the last decade in Ecuador has been marked by a series of institutional and political confrontations which have had negative and substantial repercussions on the functioning of Ecuadorian state institutions and which, as a consequence, have left large portions of the population disillusioned and with a strong desire to change and strengthen the constitutional framework. The delegation likewise observes, as has been affirmed by various authorities who were interviewed, that during this decade the National Congress took a series of very significant decisions whose conformity to the Constitution was doubtful, and consequently discrediting in the eyes of a substantial part of the population.

2.- In regard to this matter, the delegation congratulates the present authorities for its desire to strengthen the democratic and constitutional framework of Ecuador and trusts that the Constitutional Assembly will be able to function in an efficient and participative manner so that, ultimately, it would be possible to strengthen the institutional framework. At the same time, and despite the criticisms that might exist in regard to the Congress, the delegation would like to emphasize that in this case, that the same institutionality and constitutionality that they are seeking to protect via Constitutional reform is in itself the focus of concern. In that sense, the delegation wishes to point out the following:

The question of parliamentary immunity and the loss of parliamentary mandate: The UIP has always underlined that parliamentary immunity in regard to the opinions and votes cast in parliament is the cornerstone of representative democracy and is strongly protected in parliaments around the world, thus safeguarding the parliamentarians against any judicial or other action for their votes or opinions expressed during the exercise of their parliamentary mandate. For the delegation, there is no room for doubt that the 57 representatives were dismissed because of the decisions - even were they doubtful from a constitutional point of view - they took during the exercise of their mandate. The delegation believes that the fact that, at that moment, Ecuador was within an electoral period, does not exempt the electoral authorities from their obligation to respect these guarantees. Therefore, the delegation reached the conclusion that the parliamentary immunity of the dismissed representatives, including their jurisdictional rights before the Supreme Court of Justice, was not respected.

In reference to the dismissal of the representatives, the delegates notes that the juridical norms, in particular, the Constitution, clearly stipulates the situations, reasons and processes which can lead to the loss of a parliamentary mandate in Ecuador. Furthermore, the Constitution assures full protection of the right to due process. It is clear to the delegation that no norm exists granting the TSE the powers to dismiss national representatives for electoral infractions, not even during electoral periods. Therefore, it is clear that the 57 representatives were not granted the opportunity to defend themselves.

Question of harassment and aggression: Although the delegation is conscious that the authorities can not anticipate every manifestation of excess, it considers that they can and should adopt the appropriate guarantees to protect the dismissed representatives and that, in the case of aggression, should do all possible to prosecute and discipline guilty parties. In this regard, the delegation is not convinced that the authorities have always provided the appropriate guarantees. Furthermore, the delegation is concerned by the fact that in the great majority of cases, despite the existence of television and video images that clearly demonstrate the perpetrators of aggression, these persons have not been apprehended and condemned. To this end, the delegation wishes to emphasize that the actions of the authorities should not depend upon the existence of a complaint by the victims. In respect of this situation, the delegation urges the authorities to fulfil their duty in doing everything in order to insure justice in this case and to protect in an effective manner the dismissed representatives. The delegation wishes to underline its particular preoccupation with the violence and the invasion of the Constitutional Tribunal on April 23, 2007, and the supposed lack of action by the police which, according to allegations, was ordered by the authorities and, therefore, urges the same to clarify the circumstances of this situation and assign responsibility to the guilty parties.

Criminal accusation and the request for preventive detention of the 24 representatives: Even though at present the 24 dismissed representatives are not undergoing criminal process, it is clear to the delegation that, in principle, such procedures can be initiated at any moment via the appropriate juridical avenues. The delegation expresses its concern regarding the juridical basis of the accusations against the dismissed representatives which, being directly linked to their parliamentary activities, prolongs the present uncertainty like a Damoclean sword. For that reason, the delegation hopes that the case will be quickly, and definitively, dismissed.

The resolution of the Constitutional Tribunal of April 23, 2007 and the cessation of its members: The delegation observes that a Constitutional Tribunal Resolution exists, with a solid and extensive juridical basis, declaring the dismissal of the 57 representatives illegal. The delegation expresses its great concern regarding the fact that on April 24, 2007, Congress decided to relieve the members of the Constitutional Tribunal of their duties, arguing that their mandate had expired in January of that same year. The delegation fears that the considerations behind this decision were political rather than juridical. In this regard, the delegation refers to the timing of the termination, which was not effected in January of 2007 when the mandate of the members would have expired, but rather one day after the Constitutional Tribunal adopted its ruling; likewise, the fact that the 52 representatives who approved the resolution to dismiss the member of the Constitutional Tribunal included those who were previously substitutes and, in taking this decision, acted both as judge and jury, thus not impartially, in their own interest in preventing the return of their predecessors.

Since the conclusion of the mission, the delegation has, with surprise and concern, received news of the resolution on July 25, 2007, by the new members of the Constitutional Tribunal, regarding the annulment and archiving of its predecessor's resolution by which the 57 representatives were restituted. The delegation considers that by filing the records without commentary regarding the matter of the case and without responding to solid arguments brought against it by the dismissed representatives and accepted by the previous Constitutional Tribunal, the representatives have been denied the opportunity to obtain justice.

Institutional instability, especially of the judicial system: The delegation considers that several of the events of this case are linked to the fragility of the judicial system and the tendency to instrumentalize justice for political motives. The delegation encourages the authorities to apply the recommendations of the United Nation's Special Envoy with an end to depoliticizing the judicial system and assuring the administration of justice based on principles of independence and competition. In this regard, the delegation stresses the important role the National Congress, together with the Constitutional Assembly, should play in achieving this objective and accepts with satisfaction the proposal of the President of Congress that the UIP, which already offers technical assistance to Congress, should collaborate in the process of constitutional reform.

The committee will continue examining the case in the next session to be held in Geneva in mid-2008.