–Adwaldo Lins Peixoto Neto, Federal University of Minas Gerais, Belo Horizonte, Brazil.
Presidential impeachment is a democratic but turbulent instrument of removing presidents who committed misdeeds without breaking the political and democratic system. In Ecuador, this institution has now worked adequately under the last constitution, and the Constitution promulgated in 2008 set a new institutional design for impeachment. Guillermo Lasso had been facing an impeachment trial, but on May 17, he ended the impeachment process with one presidential decree, which dissolved the Asamblea Nacional (Ecuador’s congress) and called new elections. Now, the Consejo Nacional Electoral (National Electoral Council) has 7 days to start to prepare new elections: both legislative and executive ones. This Presidential prerogative of dissolving the legislature and convoking new elections is provided in section 148 of the Ecuadorian Constitution. This institutional instrument was nicknamed “La muerte cruzada” (crossed death), as both the legislature and the president will lose their mandates as a result.
“La muerte cruzada” in the Ecuadorian Constitution
La muerte cruzada (the crossed death) is an institutional resource inserted in the Constitution of Ecuador of 2008 which allows the president to dissolve the assembly, in some situations, at his own discretion. The grounds are provided in section 148: 1 – when the assembly usurps competencies which were not allowed to it by the Constitution, with a previous constitutional court judgment; 2 – when the assembly starts to obstruct frequently and with no justification the National Plan of Development; or when there is a grave political crisis of internal commotion.[1]
This presidential prerogative can only be used once, inside the period of the 3 first years of his/her term (in Ecuador, the presidential term of office is 4 years, allowing only 1 reelection). No more than 7 days after the publication of the decree of the dissolution of the legislature, the Consejo Nacional Electoral (National Electoral Council) shall convoke new elections to both the legislative and executive offices for the same day. The winners will only remain in office for the rest of their “respective terms of office”.[2]
The most interesting aspect of the crossed death is that the president dissolves the Assembly and also decrees his own ouster from office, as the call for new elections includes the executive. It seems like a Western movie where both adversaries go to the front of the saloon for a duel, and both end up dead. Hence the name.
Why did President Lasso use Crossed Death?
Until the finish of the new elections and the installation of the new assembly, the President will be constitutionally allowed to govern by decree, and those will have legal status, since the legislature is closed. The Ecuadorian Constitution limits the theme of these decrees to economic urgency, after a prior constitutional court judgment, and these decrees will be analyzed by the next assembly, which can approve or deny them.
Can Presidentialism work like Parliamentarism? The Never Ending Debate
The debate about presidentialism versus parliamentarism is like a ghost that sometimes appears from nowhere to threaten politics and constitutional law. The literature has already evidenced that Presidentialism and Parliamentarism vary in a wide spectrum with lots of characteristics, and their success is due to the ability of the constituent to calibrate the checks and balances in an adequate way.[3]
In my view, this prerogative of dissolution of the legislative bodies is a kind of institutional rule which might function well in a pure parliamentary system, where the executive branch derives from the legislative one, depending on its confidence to survive. But these typical instruments of parliamentarism, when transferred to presidential constitutions, may not work as expected. The Ecuadorian situation already evidences that: since the legislative branch is dissolved, President Lasso informed the Constitutional Court of his intention to leave the country for personal reasons from May 24th to May 28th (Official letter n. T.71-SGJ-23-0135, May 22nd). However, taking account of presidential absences from the country is a legislative and not a judicial attribution, thus the court held that it had no competence over the issue.[4]
It is opportune to highlight that the Peruvian Constitution also provides the presidential prerogative of dissolving the congress in section 134 if the legislature censures or denies confidence in a member of the Cabinet.[5] This legal device was the cause of many crises in Peru, which makes us question the desirability of these instruments in presidential constitutions.
The Trouble with La muerte cruzada in Ecuador
Immediately following the presidential decree of dissolution of the Ecuadorian assembly, the constitutional debates about its judicial review started in the media. First, we have to assume that this institutional instrument has been provided in the body of the Constitution since its promulgation, so the President can use this prerogative in the situations outlined in the Constitution. The question is: will the Ecuadorian constitutional court admit its review for other arguments?
The dilemma starts because of Ecuador’s institutional design for impeachment. To approve the impeachment, the resolution must be submitted to the Constitutional Court, which analyzes its legal grounds. With its approval, the impeachment procedure must go on. But the real problem is: once the impeachment starts, until which moment can the president use the prerogative of section 148 and decree la muerte cruzada?
This is not a constitutional issue exclusive to Ecuador; courts for example play a role in impeachment in many countries. In Brazil, in 1992, Fernando Collor de Mello faced impeachment and, when he realized that his game was over, on December 29th, 1992, at 09:00 o’clock, before the voting session started, his lawyer read a resignation letter, trying to avoid the trial and the imminent conviction. That was considered an outrageous act, and the matter was judicialized. The Brazilian Supreme Court decided that the right of resignation, when exercised immediately before the trial, is an abuse of power, nullifying the act and determining the progress of the impeachment.[6] At the end of the trial, Collor, who already had resigned his office, was convicted of the crimes of which he was accused, and was disqualified from holding any public office for a period of eight years.[7]
Back to Ecuador, Lasso’s maneuver has to be followed with attention. Such an instrument increases the power of the President and weaken checks and balances. This can be problematic in such a region where political instability has been persistent, and where redemocratization is still young. Both Ecuador and Peru, countries which the constitutions present this presidential prerogative, are the ones with the most presidential failures on the continent. Despite the new Chilean constituent debates about the political system[8] after the failure of the ratification of the last constitution, and the debate about semi-presidentialism going back and forth in Brazil over time,[9] the consequences of Lasso governing with no opposition, even for a constitutionally limited period of time, may be dangerous for Latin American constitutionalism.
Suggested citation: Peixoto Neto, “La Muerte Cruzada”: How Ecuador’s President Lasso Ended an Impeachment Attempt by Decree, Int’l J. Const. L. Blog, May 26, 2023, at: http://www.iconnectblog.com/la-muerte-cruzada-how-ecuadors-president-lasso-ended-an-impeachment-attempt-by-decree/.
[1] Constitution of the Republic of Ecuador (2008): https://constituteproject.org/constitution/Ecuador_2021?lang=en, section 148 (English) or Constitución de la República de Ecuador (2008): https://www.oas.org/juridico/pdfs/mesicic4_ecu_const.pdf (Español), art. 148.
[2] Constitution of the Republic of Ecuador (2008): https://constituteproject.org/constitution/Ecuador_2021?lang=en, section 148, 3rd paragraph (English) or Constitución de la República de Ecuador (2008): https://www.oas.org/juridico/pdfs/mesicic4_ecu_const.pdf (Español), art. 148, tercer párrafo.
[3] To summarize the debate, see CHEIBUB, José Antônio. ELKINS, Zachary; GINSBURG, Tom. “Beyond Presidentialism and Parliamentarism.” British Journal of Political Science 44(3): 515-544.; MOE, T. & CALDWELL, M. “The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems.” 1994. Journal of Institutional and Theoretical Economics 150/1: 171-195; COLOMER, J. M. and NEGRETTO, G. L. (2005), Can Presidentialism Work Like Parliamentarism?. Government and Opposition, 40: 60–89.
[4] ECUADOR. CORTE CONSTITUCIONAL. En relación al comunicado del presidente Guillermo Lasso Mendonza en el que informa a esta Magistratura sobre su salida del país. Available at https://twitter.com/CorteConstEcu/status/1661150600564985856?t=8WQCjCvZm__QwLd7RJ2Cig&s=19. Access on May 23rd, 2023.
[5] Polítical Constitution of Peru (1992): https://constituteproject.org/constitution/Ecuador_2021?lang=en, section 134 (English) or Constitución política del Perú (1992): https://www.oas.org/juridico/pdfs/mesicic4_ecu_const.pdf (Español), art. 134.
[6] For more details of Fernando Collor’s impeachment, see: PEIXOTO NETO, Adwaldo. The Legitimacy Of The Impeachment process In Brazilian Presidentialism: An Analysis From The Precedent Collor- Would We Learn About The Past?. Revista de Direito da Faculdade de Guanambi. v.5, n. 2, julho-dezembro 2018Doi:10.29293/rdfg.v5i2.24424.
[7] Constitution of Federative Republic of Brazil (1988): https://constituteproject.org/constitution/Brazil_2017?lang=en (English) section 52, sole paragraph, or Constituição da República Federativa do Brasil (1988): https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm (Portuguese), art. 52, parágrafo único.
[8] CHILE. Chilean Constituent Debates. (04/11/23). Sesión 07: Sistema Político, Reforma Constitucional Y Forma De Estado (Session 07: Political System, Constitutional reform and Form of State): https://www.youtube.com/watch?v=2wIYaKmNuDk (Spanish).
[9] BRAZIL. CHAMBER OF DEPUTIES. (03/30/22). Discussões sobre implantação do semipresidencialismo no Brasil começam na semana que vem. Plano de trabalho do colegiado foi aprovado nesta quarta-feira. (Debates about the implementation of semipresidentialism in Brasil starts next week. Collegiate work plan was approved on tis Wednesday). Fonte: Agência Câmara de Notícias. https://www.camara.leg.br/noticias/862503-discussoes-sobre-implantacao-do-semipresidencialismo-no-brasil-comecam-na-semana-que-vem/ (Portuguese).
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