Dr. Jorge Zavala Egas – Álvaro Noboa: The Political Persecution and Constitutional Resistance





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Jorge Zavala Egas: Thank you very much for attending.  The objective of having called you together is to transmit to Ecuadorian society a new system of debt collection owed the Ecuadorian state that was brought into effect via a law published on September 26, 2012 and that the public administration in general has begun to apply in, at least let’s say, an exorbitant way. What is the problem? The problem consists of this law being badly applied, allowing any collector from public businesses, public sector institutions, for example, the Internal Revenue Service, the National Customs Service, the Social Security Institute, the National Development Bank and any institution that has the right to collect these debts, allowing them to initiate coercive procedures, according to them. But at the same time, upon initiating coercive procedures, they are rejecting the legal entity of the businesses in debt. They are going to the natural persons behind the legal entity and their goods. But they don’t stop there. They are also going to the goods of people related to or associated with those persons:  fathers, children, brothers. And on the basis of this, for example, if a business has Jorge Zavala as a stock holder, that business owes to the IESS, it owes to the IRS, according to them, and they initiate coercive action, automatically, once the demand for payment is initiated, they remove the legal entity status from my company, they come for my goods and if they consider that my goods are not sufficient, they can come for the goods of my family members, my children, my siblings, up to four degrees of relation, and that applies to all Ecuadorians, no one is safe.

That system was inaugurated on September 28, precisely two days after the law for the Noboa Case of Álvaro Noboa against the Internal Revenue Service came into effect. The debtor:  Exportadora Bananera Noboa; tax identification:  the Bananera Noboa business;  business debtor: Bananera Noboa. All this during 2009-2012, but from September of 2012, the debtor is no longer Bananera Noboa and the collection office saddles Álvaro Noboa, as a natural person with, and with him, all the persons related to Álvaro Noboa Pontón in Guayaquil. The other example in Quito was published and is notorious, that was published by the media: the EICA case. And likewise they came against the legal entity and the corporation, but at the same time initiated a collection against the sons and the brothers of the stockholder of EICA. But that’s not where it ends.

In smaller cases, work inspectors, I’m not referring to authorities on high, work inspectors stating simply that the debt is also the responsibility of the father of the employee also seized the goods of the employee’s father, and they instigated an embargo and auctioned off the goods of the father on the basis of the same law. If we multiply this by the entire national spectrum, I believe that Ecuadorian society, all of us – and  I refer, ladies and gentlemen, to all of you as well – who have any kind of familiar association with persons who have stocks in any business, if that business should be a debtor for any reason, any sector or any public sector, your goods are in danger and it is necessary for Ecuadorian society to know it.

Article 1 of the Organic Law for the Defense of Labor Rights introduces this norm, not only in order to defend labor rights, but to defend all the debts to the Treasury as well.

Ladies and gentlemen, this should be stopped.  The abuse, the arbitrariness, the savagery with which this law is being applied has no comparison in any civilized country. It is necessary for Ecuadorian society to become aware of it and to  request, not the abrogation, but rather that the procedures be indicated, the motives for which the Treasury can be compensated for debts owing it, but not with respect to natural persons who don’t have anything to do with the issues of a business, nor with the debt as such, but have to pay anyway.  It’s  the same, just to give an example, as what happens with child support, or payments that get passed on to the children, so if the parents don’t pay, then the brother should respond, and if not the brother, then the uncle, if not the uncle then the parent, and that is the same that is going to happen generally.

As a result, I have decided, upon Álvaro Noboa’s request, to write a manual of what is happening. That manual is going to be distributed to you, and in this case I have named it, “Political Persecution” because, in this case, there is a political motive, and you and any Ecuadorian can read, debate, and disagree with the arguments and the inventory of the crimes and I would like that there be a public debate in order to know whether I am right or not.  For that reason, I have not only decided to hold a press conference, but also to distribute this manual to you, so that you, with the legal advice that you should have, have a look at what has happened and see that this is what I am saying.  It’s the truth and giving the Press the seriousness it deserves, I have decided not only upon short affirmations in a press conference, but also on delivering in writing with my signature and responsibility what I have just denounced. It is necessary for all Ecuadorians become aware of it.

My motive is not political. I am not in active politics, as you know. I am a citizen concerned with the judicial guarantees of every Ecuadorian. Today it is Noboa, tomorrow it could be Pérez, and the day after tomorrow, it could be any of us. The abuse has to be stopped. You will be given this manual and after you have read it, I am ready for any kind of interrogation, questions, arguments, debates with whatever public authority in whatever setting that I am invited to in order to sustain what I have stated here. For that reason, and for the seriousness that I feel the Press deserves as intermediaries in the issue, I hand out this pamphlet, this manual entitled, “Political Persecution” and the constitutional resistance that all of Ecuadorians merit. In this specific case, the study has been done on the procedure against Álvaro Noboa Pontón, but I repeat, it can be generalized to all the cases that we know here, which are approximately five, cases in which they are applying in an absurd, perverse way, a law that puts all of us Ecuadorians on pins and needles with regard to family goods.  That is all I wish to say. Thank you, and any questions, I would be pleased.

Press:  Doctor, good afternoon. So, that means that currently there is no regulation or any authority, whether I be that judge or some labor tribunal or work or tax tribunal. They have assumed responsibility to say “Yes, you can make those demands against people third or fourth line blood relatives.”

Jorge Zavala: The question is very interesting and I am going to tell you from practice. The debt is determined. The Internal Revenue Service, the IESS, whatever institution specifies the debt and without notifying that responsible body, distanced as they are in the company issues, and from the debt, they initiate a demand for payment.  They declare that third person responsible for the demand of payment, and in turn, the demand of payment encompasses precautionary measures, prohibition to transfer goods, prohibition to leave the country, against those third parties that in the demand of payment . Only in the demand of payment there is forceful persecution, they have and can defend themselves, but not from the declaration of responsibility, and also not whether the debt is legitimate or not; they can only defend themselves without saying a word during a demand for forceful execution. That’s why they call it coercive. Coercive means, either you pay or you pay in kind with goods or I embargo your goods. And in the case that I am citing, from the labor sector, they even went to auction, and it tells you in the demand,  the work inspector to that natural person, who doesn’t have anything to do with the debt, that, unfortunately, that according to Article One of the Organic Law for the Defense of Labor Rights, your goods have been auctioned, and you have just been notified.

Press:  Normally, in what time frame should all this occur?  One week?  One month?

Jorge Zavala:  If you would consider that an administrative act of declaration of responsibility allows you to contest it within 15 days, showing that you don’t have anything to do with the debt and that the debt is illegitimate. From there, the appeal, is approximately, according to our statute, 60 days.

Press:  Normally, there should be a regulation to say what are the stages that should occur in this process.

Jorge Zavala:  In no country in the world has this power been given to public administration. This power is in the hand of judges and within due process where one can defend one’s self, where one can argue it and it can be proven.  It’s not a summary administrative process like a forceful execution. Only in Ecuador is this power given to treasury collectors, who 99% of the time are not even lawyers. They don’t have the means of evaluating the legal entity of each individual. That is the reality that we are living in and therefore I am distributing this manual so that you can take account of the dates, the demands, and that you ask those who are responsible that what I am saying is the pure truth.

PRESS: Counselor, logically, many months have passed in this case. How come you have brought it to a press conference now? You know that the case is paralyzed by the presidential candidacy.

Jorge Zavala:  It is paralyzed because of Attorney Noboa’s trial of exceptions. In the trial of exceptions, it’s no longer Bananera Noboa, in any case, now it’s Álvaro Noboa.

Press:  Why is he addressing this issue now?

Jorge Zavala:  He’s not stopped since September 28.

Press:  Are you in charge of this case?

Jorge Zavala:  I was legally consulted by Álvaro Noboa Pontón and as a result of that legal consultation, which is published on the first page of the manual that I am distributing, I did the legal study and am putting it to the disposition of public opinion.

PRESS:  Is there not going to be any denunciation brought by the legal side?

Jorge Zavala:  No, I, the only thing that I want, and I repeat, is to reach the conscience of the Ecuadorian community. If the Ecuadorian community receives the issue in its just, non-politicized dimensions – just because this is a politician, doesn’t mean the arguments are political – the arguments are legal and legal arguments should be legally debated. If the IRS, Customs, the IESS, the Ministry of Labor want to debate it with me, I would be more than happy. But I repeat, the aim is for social awareness. One can’t live in a community with one’s family goods at permanent risk because of the lack of responsibility of public administrations. We live in a country that I consider to be totalitarian. There should be a limit and the limit, at the very least, should be to have goods, a house, a car, a vehicle safe from the arbitrary actions of an administration.

Press:  Will you make a formal invitation to the authorities?

Jorge Zavala:  Via you, I am doing just that. I, formally, I repeat, have no problem to debate it in the university setting with any legal expert in the country who disagrees with my opinion, in the media, or in whatever setting.  Because what I am saying, I know to be the truth, which is why I am distributing the manual. The best way to argue is to give arguments, therefore I am giving them to you.  Go ahead and analyze these arguments because in them is my credibility, my professionalism is at stake, and therefore I present them to you.  And not just here. This is a manual that from today will be distributed internationally, because it deserves the attention of the Inter-American Human Rights Commission, and it deserves the attention of all the Human Rights organizations in the world.

Press:  Why didn’t you do it before?

Jorge Zavala:  Because the law came into effect on the 26 of September. It was put into practice on the 28th of September, and after that, this last thing that I just mentioned was on the 8th of November. That is to say, we are in the process of the application of this law and therefore, with arguments and proof, I can tell you. I can’t say “This is going to happen.” I’ve said, “This is happening.” And that is what I show in the manual.

Press:   And this is going to accompany Mr. Noboa’s campaign?

Jorge Zavala:  I couldn’t care less about anyone’s campaign. I’m not in politics. It doesn’t matter to me who wins and who loses. I live in my country independently of government.  Whoever that is. If it’s Correa’s totalitarianism that wins, it wins. If it’s Lasso’s liberalism that wins, it wins. If it’s Zavala’s populism that wins, it wins. What interests me is working for my country and I work in the legal arena. I don’t say to vote or not vote. Whoever wants to, should vote for their candidate.

Press:  How long did your research take?

Jorge Zavala:  My research lasted from 27 of September 2012 until 9 of January, 2013.

Press:  What happens if the authorities ignore the manual?

Jorge Zavala:  I don’t believe that the authorities, as far as we know, will have any opinion, but if they wish to put forward their opinion, we are ready to debate it. Until now, when I have contributed to the fight regarding patrimonial declarations, I have done so publicly; they’ve invited me to debate it, we’ve debated.  The social conscience presented its arguments. When the national Government invited me to debate against Mr. Alexis Mera, we debated on the national channel, the state channel. I have no problem with debating. There we will see, before the social community, if I am right. I am right. I ask:  Why should one brother have to be respond to a debt that another brother acquires in a business that the first knows nothing about?  And he has to be responsible without any right to defense? Is that possible? I ask; let’s go to the same family. If Mr. Correa’s brother’s business were indebted to the Treasury, would President Correa have to respond to those debts? Well, that’s the result. Therefore, I am not defending one, nor attacking the other. I am stating what is happening to all of us Ecuadorians.  One day we will think without sectarian politics, Correa or no Correa. This country is not about that. We think about all Ecuadorians. I ask: Who doesn’t have problems with IESS affiliations?  We are not thinking only about the IRS, we are thinking about the Banco de Fomento (Development Bank) with the farmers, and the coercive actions of the Banco de Fomento against whomever it acts. Is it just against the debtor? No, sir. Now the gamut has been extended to associates and relatives.

We are not thinking about the big ones; we are thinking about the common denominator of businessmen and those related to businessmen, and not big businessmen. We are speaking about small businessmen. Even the Banco del Pacífico has coercive power as it is a State bank. Banco de Pacífico clients are exposed to the same thing.  Therefore, don’t just take this as from Correa because it’s Álvaro Noboa. This is an electoral race and the people will decide and the people will decide at the ballot box. That is not significant. The significance lies in this law still being there after the first round on February 17, and after the second round, if there is a second round, the law will still be there.  What are we going to do then? Continue to say that it’s politics?

On day we will learn to defend ourselves as a civilized society. I don’t believe that the State is anything but an instrument in favor of the rights of individuals. It is not possible to say the State is right in everything.  We are seeing that already. We said the State was right to take the justice system, and there the judges are:  captured by the Executive. No one can have guarantees with the judges. And who voted?  The Ecuadorian people. We have to think that someday the majority will not decide the undecidable.  The majority votes for a candidate in good faith and if that candidate betrays what should be respected, the confidence and the legitimacy of that vote is lost. Rafael Correa, I repeat, does not interest me.

I, as a good coastal person I don’t live from the Government, nor for the Government, nor against the Government. I live exclusively by what I know, and here in my country, and I should defend my country, whoever it is, that imposes these barbarities via the National Assembly. Thank you, ladies and gentlemen.