The Court System

The judicial branch consists of three organs of equal status and importance: the Supreme Court of Justice (CSJ); the Fiscal Tribunal, which recognizes and resolves controversies arising between the revenue-collecting administration and the taxpayers and determines tax obligations; and the Contentious Administrative Tribunal (TCA), which is primarily responsible for recognizing and resolving controversies arising in public administration. Located in Quito, these judicial bodies have jurisdiction over all of the national territory. Their judges or ministers of justice must be Ecuadorian citizens by birth, be at least forty years of age, hold a doctorate in jurisprudence, and have at least fifteen years of professional experience as a lawyer, judge, or university professor in jurisprudence. The appointment of the CSJ's sixteen justices is the constitutional prerogative of Congress.

In practice, Congress and the executive branch have frequently manipulated the supposedly independent judiciary for political purposes. Congress appoints the judges of the three judicial organs to serve four-year terms. If vacancies later arise, these are filled by the organs themselves until Congress nominates official replacements. Occasionally, the president may intervene (on his or her own accord and without any specific constitutional authorization to do so) in the process of nominating CSJ justices by presenting a list of candidates, and the Council of State (a body whose bureaucratic organization and powers are unclear) may intervene by endorsing the candidates suggested by the president. At the apex of the court system is the CSJ, consisting of five chambers of three judges each, as well as the court's president. When they meet, the members of the five chambers constitute the plenary tribunal. The tribunal selects the court's president, who represents the entire judicial branch for a two-year period and may not be reelected until after five periods have elapsed.

The three judicial organs have certain powers with respect to reforming the Constitution and initiating legislation. The CSJ may initiate reforms of the Constitution, and all three judicial organs may initiate proposals of law. In an arrangement similar to the "legislative coparticipation" enjoyed by the president, the justices of the three judicial bodies may meet with Congress or its Legislative Commissions to intervene, without voting rights, in the discussion of bills. The CSJ has a very secondary role in controlling matters of constitutionality. Although any of its chambers, as well as the Fiscal Tribunal and the TCA, may declare a law or regulation unconstitutional, the plenary session of the CSJ must affirm such a declaration, in which case the matter is reported to the TGC.

The CSJ supervises the superior, lower, and special courts and prepares regulations to ensure that judicial employees function properly. The CSJ examines the statistics of the cases submitted annually by the superior courts, hears or resolves questions raised by these courts, and suspends or removes lawyers who violate legal statutes. It also removes criminal, provincial, and cantonal judges and attorneys for misconduct while in office or for incapacitation. Finally, it publishes the semiannual Gazeta Legal (Legal Gazette), as well as the court's diary.

Each province has a Superior Court, whose judges are named by the CSJ. Within its jurisdiction, each Superior Court nominates penal, civil, labor, traffic, and tenancy judges, as well as fiscal agents, public defenders, notaries, registers of property and merchandise, and other judicial officials. Superior courts have first-instance jurisdiction in criminal cases involving provincial governors, mayors, members of electoral tribunals, customs officials, provincial judges, and police officials. They hear appeals from lower courts in both criminal and civil cases. They also resolve questions raised by lower-court judges and supervise their activities, as well as those of attorneys and notaries public. In addition, they appoint provincial and cantonal judges and attorneys.

Lower courts included thirty-five criminal and forty-two provincial courts in the late 1980s. They have first-instance jurisdiction in civil cases where the amount involved exceeds 8,000 sucres. They must consult the higher courts on the interpretation of the law. When ordered by higher courts, lower courts must have representatives visit the jails in the provinces to hear the complaints of inmates, correct any abuses caused by prison personnel, and secure the release of any person arrested or detained in an illegal manner. To be a provincial judge, a person must be a citizen and a lawyer with three years of service.

The eighty-seven cantonal courts have jurisdiction in civil cases where the amount involved is between 200 and 8,000 sucres. Cantonal judges also may fine political lieutenants (tenentes políticos), who are responsible for the administration of justice in each parish (parroquia), for negligence of duty. Finally, special courts try cases involving juveniles, and labor disputes.

The Fiscal Tribunal, consisting of three chambers and nine judges named by Congress, resolves tax controversies. The TCA, which consists of two chambers of three judges each who are named by Congress, resolves controversies originating in the public administration and monitors the application and fulfillment of the law by entities of the state and their officials.

The justices of the three judicial organs--CSJ, Fiscal Tribunal, and TCA--are subject to prosecution by Congress or, in its recess, the PCL. The Constitution prohibits the judges and fiscal officials from carrying out leadership functions in the political parties, or intervening in elections. They are also prohibited from serving as lawyers or holding other public or private positions, with the exception of university professorships.

The Tribunal of Constitutional Guarantees

The TGC, rather than the CSJ, interprets and monitors compliance with the Constitution. Located in Quito, the TGC consists of eleven members and their substitutes, who serve for a two-year period, without the possibility of reelection. Congress appoints three TGC members who are nonlegislators and selects eight others from lists submitted by the president, the CSJ, the mayors and provincial prefects, the legal labor unions, and the Commercial Associations. TGC members selected to represent the legislative, executive, and judicial branches must not already be government officials; they must be citizens by birth, in possession of their rights of citizenship, over forty years of age, and doctors of jurisprudence; and they must have fifteen years of professional experience as lawyers, judges, or university professors in jurisprudence. TGC members representing the workers, the Commercial Associations, and the citizenry (such as the mayors and provincial prefects) are required only to be citizens by birth and in possession of their citizenship rights. The ministers of state, the comptroller general, and the leaders of recognized political parties may participate in TGC deliberations without voting rights.

The TGC's role has been secondary and temporary, and its decision-making power weak. Salgado points out that the control of constitutionality has been, in effect, entrusted to a largely political organ, Congress, which lacks the requisite impartiality for debating the unconstitutionality of laws, decrees, or resolutions enacted by Congress itself. Although the 1979 Constitution failed to give the TGC enforcement authority, the 1983 constitutional reforms partly rectified this deficiency. Under the 1983 reforms, the TGC may demand the dismissal of officeholders who violate TGC decisions, and the violators' superiors are obligated to comply; request judges to initiate penal action; or report its decision to Congress, which may act on it. The TGC may also suspend those laws, decrees, accords, regulations, ordinances, or resolutions that violate the Constitution. Nevertheless, it must submit its decision to Congress or, in its recess, to the PCL, for final resolution of the case of unconstitutionality. The PCL, for its part, has had relatively broad powers to control constitutionality.

The TGC has several other powers as well. During the recess of Congress, the TGC is empowered to authorize any foreign travel by the president and to revoke a state of national emergency. The Law of Municipal Regime allows the TGC to rule on cases involving the disqualification of municipal councillors (concejales municipales), vacancies, or unconstitutional ordinances that the Provincial Councils were unable to resolve. The Law of Political Parties of 1978 and the Law of Elections of 1987 also grant the TGC some electoral powers.

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Source: U.S. Library of Congress