by: Steven Peterson and Carlos Espinosa
Historically, South America has witnessed a prevalence of judicial politics, with high courts often interpreting their judiciary powers expansively, resulting in blurred lines between adjudication and presidential powers.
Recent rulings by Ecuador’s Constitutional Court, suggest a practice of judicial politics focusing on environmental litigation, particularly, conflicts regarding large-scale mining projects. Constitutional rulings (should overall) focus on interpreting, balancing and proportionally defining the scope and delimitation of conflicting rights.
However, it is noteworthy that Ecuador's High Court has predominantly concentrated on socioenvironmental conflicts (allegedly) caused by large-scale mining projects. On July 31, 2023, the Constitutional Court accepted a public action of unconstitutionality against Executive Decree 754, which reformed the Bylaw to Ecuador's Environmental Code.
The contested legislation concerns Decree 754's procedural reform of public consultation. Ecuador's 2008 Constitution introduced five distinct consultation procedures: Pre-legislative Consultation, Prior, Free and Informed Consultation, Environmental Consultation, Popular Consultation, and Citizen Participation.
Each of these mechanisms originates from diverse theoretical, legal, and political backgrounds. However, the vagueness, lack of concrete legislation, incomplete policy responses, wide scope, and conflicting nature of each consultation mechanism have led to a form of judicial politics opposing the industry rather than addressing socioenvironmental conflicts directly.
It is essential to recognize that this is not the place to evaluate the constitutional merits or lack thereof of Executive Decree 754. Instead, we should contemplate the immediate and long-term consequences that arise from the Court's temporary "suspension" of Decree 754.
In its procedural admission, the Court ordered suspension of Decree 754 as a precautionary measure, without differentiating the legal premises supporting each form of consultation. As a result, the Court's precautionary measures safeguarding ethnic minority rights have, inexplicably, extended to the general population. Whether intended or unintended, the Court’s ruling carries significant social, political, and economic implications.
Suspension of Decree 754 highlights two ongoing trends within Ecuador's Constitutional Court. Firstly, the Court consistently exercises its powers as a form of judicial politics, whenever cases involve socioenvironmental matters related to large-scale mining. It's important to note that the primary evidence presented by the Plaintiffs in this case, solely points to Decree 754, as the root cause for the advancement of mining projects throughout Ecuador.
This of course, begs the question of whether Plaintiffs seek to protect a collective right, further environmental standards or oppose advancement of an industry. Any industry generates environmental impacts, national legislation affects rights various cross-cutting manners and Human Rights are not absolute. Basic premises that should inform constitutional rulings.
Secondly, the Court's indiscriminate and disproportionate suspension of legislation raises concerns about political interests influencing the scales of justice. By failing to thoroughly analyse and balance the distinctions between each form of consultation, a legal vacuum is created that exacerbates the root causes of long-standing social and environmental conflicts.
In effect, suspension of Executive Decree 754 has brought environmental licensing to a standstill. The suspension of Citizen Participation procedures, regulated by Decree 754, has not only affected the mining industry but also has halted environmental licensing for all other industries in Ecuador. Additionally, the Court's failure to address the environmental consequences of illegal mining, raises questions and further compounds societal unrest.
Although the suspension is temporary, the indefinite timeframes of judicial proceedings in Ecuador will fuel speculation and political opportunism. Thereby weaking Ecuador's international image and diminishing the country’s famished economic forecasts.
Finally, one must consider the political implications of the Court's decision, given that Ecuador is approaching anticipated presidential and legislative elections on August 20, 2023.
Steven Petersen
Carlos E. Gallegos-Anda
* Legal Practice: collective rights, mining, environment, renewable energy & administrative law