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9 de Marzo del 2022
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Lectura: 27 minutos
9 de Marzo del 2022
Fermín Vaca Santacruz
The ups and downs of the renewal of the Constitutional Court
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A series of incidents marked a competition to appoint three new judges to the Plenary of the Constitutional Court, which also renewed its authorities. Citizen and civil society observers followed the process. Four of the nine candidates resigned and the competition was declared void before the appointment was made.

The renewal of the Constitutional Court was successful, but the journey was stormy. Resignations, questionings, doubts and claims marked a complex process in which distrust and speculation were the order of the day.

It all began on August 27, 2021, when the president of the Transparency and Social Control Function (FTCS), Danilo Sylva, appointed the members of the Qualifying Commission for the partial renewal of the Constitutional Court.

The members of the Commission were Dunia Martínez and Edgar Neira, from the Executive Function; Luis Alberto Fernández and Medardo Oleas, from the Legislative Function; Vanesa Aguirre and Rafael Oyarte, from the Transparency and Social Control Function. Aguirre was appointed president, while Oyarte was appointed secretary. The Commission worked ad honorem, counting on the support of the officials of the Transparency and Social Control Function, but this detail would provoke an incident in the future.

Aguirre, according to her curriculum vitae, is a doctor (equivalent to PhD) from the University Pablo de Olavide. She is a Senior Specialist in University Teaching and Procedural Law from the Universidad Andina Simón Bolívar. Degree in Legal Sciences from the Pontificia Universidad Católica del Ecuador.  She is an auditor at the Arbitration and Mediation Center of the Quito Chamber of Commerce.

THE COMMISSION WORKED AD HONOREM, WITH THE SUPPORT OF THE TRANSPARENCY AND SOCIAL CONTROL FUNCTION, BUT THIS DETAIL WOULD CAUSE AN INCIDENT IN THE FUTURE.

Mr. Oyarte holds a Master's degree in Public Law with a major in Constitutional Law and a postgraduate degree in Constitutional Law from the Pontificia Universidad Católica de Chile. He holds a Doctorate in Jurisprudence from the Pontificia Universidad Católica del Ecuador. His area of practice is public law.

In the case of Neira, he holds a Master's degree in Administrative Law from Universidad San Francisco de Quito. Lawyer and Doctor in Jurisprudence, from the Pontificia Universidad Católica de Quito. He specializes in administrative and tax litigation, as well as arbitration.

Dunia Martínez is a candidate for a Doctorate in Law, from Universidad Andina Simón Bolívar, Master in Law. She is a Doctor in Jurisprudence and a lawyer from Universidad del Azuay.

Medardo Oleas' curriculum vitae highlights that he is a lawyer and Doctor in Jurisprudence from the Pontificia Universidad Católica del Ecuador.  He is a practicing attorney. He has been permanent judge in several specialized chambers and advisor in Electoral Material.

About Luis Alberto Fernández, it was published that he is a PhD candidate in Law, from Universidad Andina Simón Bolívar. He holds a Master's Degree in Law, with mention in Constitutional Law, as well as a Doctorate in Jurisprudence, Lawyer and Bachelor's Degree in Social Sciences. He has been a judge, prosecutor and legal advisor.

The process begins 

On October 7, 2021, the call for the process was made.According to the Qualifying Commission, "the process will be governed by the principles of independence, transparency and publicity, meritocracy, probity, integrity and speed". The Commission explained that "this public competition refers to a partial renewal, by thirds, of the judges of the Constitutional Court; therefore, the Executive, Legislative and Transparency and Social Control functions will each present three candidates".

It was also specified that "the candidates will be subject to the regime of requirements and disqualifications set forth in the Constitution and the Organic Law of Jurisdictional Guarantees and Constitutional Control". This refers to the requirements to become a constitutional judge, which included "notorious probity" in the practice of the profession and having been a lawyer for at least ten years, among others.

The timetable presented included up to 106 days, where the longest stages were 15 days for the presentation of applications, 15 days for the presentation of challenges, up to 30 days for the evaluation of merits and opposition, among other deadlines.

THE TIMETABLE PRESENTED INCLUDED UP TO 106 DAYS, WHERE THE LONGEST STAGES WERE 15 DAYS FOR THE PRESENTATION OF APPLICATIONS, 15 DAYS FOR THE PRESENTATION OF CHALLENGES, UP TO 30 DAYS FOR THE EVALUATION OF MERITS AND OPPOSITION, AMONG OTHER DEADLINES.

But on October 18, the first stumbling block occurred. Although the State functions sent the shortlists and, therefore, the nine candidates foreseen were presented, the Commission considered that most of them did not meet the requirements foreseen. At that time, the commissioners reviewed aspects such as professional trajectory, tax information, resumes and, above all, the endorsements of aspects such as ten years of professional practice or some elements that could accredit "notorious probity". And after doing so, they declared that it was preferable to declare the competition void and ask the State functions, once again, to send candidatures.

Between September 6 and 13, the Commission prepared its Regulations, which in the end had 26 articles, in which some of the aspects of the competition were specified. And on September 18, one month after the declaration of the competition as void, the process was reactivated with a new timetable.

On November 12, 2021, the Commission published the names included in the shortlists it had received. Richard Omar Ortiz Ortiz, Bárbara Brenda Terán Picconi and Jhoel Marlin Escudero Soliz were nominated by the Executive Function. The Legislative Function sent a shortlist with Salim Marcelo Zaidán Albuja, Ximena Alejandra Cárdenas Reyes and Luis Fernando Sarango Macas. The Transparency Function presented the nominations of Mauricio Alejandro Guim Alfago, María Fernanda Álvarez Alcívar and Carlos Gerardo Vásquez Morales. Some of the names, such as those of Bárbara Terán and Mauricio Guim had already been rejected weeks before, when the Commission declared the competition void, but they were resubmitted anyway. 

A REPORT BY THIS PORTAL RECOUNTED THE RELATIONSHIPS, ENVIRONMENTS AND PROXIMITY OF THE CANDIDATES. IT WAS POSSIBLE TO IDENTIFY THE PRESENCE OF CANDIDATES ESPECIALLY CLOSE TO THE UNIVERSITY OF THE AMERICAS, WHERE THE MINISTER OF GOVERNMENT, ALEXANDRA VELA, WAS DEAN OF LAW, AND THE UNIVERSITY OF SAN FRANCISCO.

A report of this portal revealed the relationships, environments and proximities of the candidates. It was possible to identify the presence of candidates mainly close to the Universidad de Las Américas, where the Minister of Government, Alexandra Vela, was Dean of Law, and the Universidad San Francisco. Also, the evident absence of lawyers from public universities, as well as the fact that the majority of candidates came only from Quito and Guayaquil.

The first decisions of the Commission provoked public criticism from the Dean of Jurisprudence of San Francisco University, Farith Simon, who questioned what he called the "abusive discretionality" of the Commission in a column he published in the newspaper El Comercio. The column provoked the discomfort of members of the Commission such as Vanesa Aguirre and Rafael Oyarte. Oyarte maintained, in a dialogue with PLANV, that it was not an "inter-university competition" between San Francisco and other universities. 

The roster of candidates

Five days later, on November 17, 2021, the Commission had already made a decision on the nine files that arrived at the beginning. They declared that candidates Salim Zaidan Albuja, Bárbara Terán Picconi, Jhoel Escudero Soliz, Alejandra Cárdenas Reyes and Richard Ortiz Ortiz did meet the requirements for the position, while they gave Luis Sarango Macas and Carlos Vásquez Morales time to correct and complete the documentation.

Regarding candidates Mauricio Guim Alfago and María Fernanda Álvarez, the Commission decided that they did not meet the requirements and asked the Transparency Function to send two new names.

On November 26, the Commission declared that Luis Fernando Sarango Macas and Carlos Gerardo Vásquez Morales had completed the missing requirements, while the names of Ana Carolina Donoso Bustamante and Jorge Washington Sosa Méndez were sent in place of the two candidates who did not meet the requirements.

Thus, the final list of the competition was announced at the beginning of December. But before the process continued, the secretary, Rafael Oyarte, resigned from the Commission. The jurist said that he did not agree with the way in which the public authorities had prepared their shortlists and was dissatisfied with the lack of rigor in the fulfillment of the requirements. He also reminded that the Commission was working ad honorem and that he should continue with his professional practice.

The list of candidates in the race was as follows: Ana Carolina Donoso Bustamante Ximena Alejandra Cardenas Reyes, Jhoel Marlin Escudero Soliz, Richard Omar Ortiz Ortiz, Luis Fernando Sarango Macas, Jorge Washington Sosa Meza, Barbara Brenda Teran Picconi,Carlos Gerardo Vasquez Morales and Salim Marcelo Zaidan Albuja.

Time for appeals

In the midst of the year-end holidays, the process of impugnations was opened. As explained by the Commission, the challenges had to be related to "lack of probity, suitability, non-compliance with requirements or existence of disqualifications, incompatibilities or concealment of relevant information, established in the Constitution, the law or the regulations" and the deadline to submit them was December 27.

The impeachment process received only four complaints. Natalia Elena Roca Pogo protested against the candidacy of Jorge Washington Sosa Meza , while Bárbara Terán Picconi received the objections of Rocío Delgado Vásconez. Sylvia Fernanda Bonilla Bolaños and María Gracia Espinosa Vaca spoke against Salim Marcelo Zaidán Albuja.

But the impeachment process triggered the first resignations. Salim Zaidán presented his withdrawal from the contest at the end of December, after learning of the two challenges against him. The jurist questioned that the challenges were an anthology of his publications in social networks and also the impartiality of the commissioners. In his case, the two challenges, filed by feminist activists, were related to a conflict with his ex-girlfriend, with whom he has a daughter. 

SALIM ZAIDAN WITHDREW FROM THE CONTEST AT THE END OF DECEMBER, AFTER LEARNING OF THE TWO CHALLENGES AGAINST HIM. THE JURIST QUESTIONED THAT THE CHALLENGES WERE AN ANTHOLOGY OF HIS PUBLICATIONS IN SOCIAL NETWORKS AND ALSO THE IMPARTIALITY OF THE COMMISSIONERS.

After Zaidán's resignation, the telematic hearing of the challenges was held on January 10, 2022. Both Bárbara Terán and Jorge Sosa were connected to the hearing. In the case of Sosa, he was accused of being part of the circle of the Bucaram family and of the board of directors of his movement, Fuerza Ecuador, as well as of owing alimony.

An investigation of this portal revealed that Sosa appears as legal advisor of the drug trafficker alias Gerald, a fact about which the candidate, consulted on the matter, maintained that it was a consultation and not a defense of the controversial drug lord. However, this fact was not a reason for any challenge, a constant that would be repeated in other cases.

Bárbara Terán, on the other hand, was challenged by the lawyer of a former professor of the University of San Francisco, a professor with a PhD obtained in Germany, who is in a judicial war with that university. Labor claims and even criminal charges have been filed in the case. Terán represents in several of these processes the authorities of the University, where she is also a professor.

In her case, in the first declaration of desertion, it was pointed out that she had opened a RUC many years after the date she had started her professional career, which was highlighted in a report on her portfolio. However, this fact was not mentioned later and was not challenged.

Challenges rejected and new resignation

On January 12, 2022, both challenges were rejected by the Commission. In the case of Jorge Sosa, there was a dissenting vote by Dunia Martínez, who considered that the case did call into question the attorney's notorious probity.

In the case of Bárbara Terán, the Commission rejected the challenge and emphasized that the applicant had not committed any ethical transgression that could be proven by the challenge. But Terán would not remain in the race either. Shortly after the challenge was rejected, the lawyer resigned from the contest claiming that she had tested positive for covid. Terán's resignation coincided with the publication of the first evaluation obtained by the applicants, related to merits.

The competition regulations established a score out of 100 points, of which 20 came from the evaluation of merits, 40 from the oral exams and 40 from the written exams. The merit scores were published on January 14, 2022: Ximena Alejandra Cardenas Reyes (16.5), Ana Carolina Donoso Bustamante (20.0), Jhoel Marlin Escudero Soliz (20.0), Richard Omar Ortiz Ortiz (18.0), Luis Fernando Sarango Macas (14.5), Jorge Washington Sosa Meza (14.5), Barbara Brenda Teran Picconi (16.5) and Carlos Gerardo Vasquez Morales (18.0).

With these first marks, the seven applicants who remained after the resignations of Zaidán and Terán moved on to a new stage. Written exams were taken and initially identified with codes. The scores ranged from 8/40 the lowest to 39/40 the highest. 

SHORTLY AFTER THE CHALLENGE AGAINST HER WAS REJECTED, BÁRBARA TERÁN RESIGNED FROM THE CONTEST CLAIMING THAT SHE HAD TESTED POSITIVE FOR COVID.

Two resignations in during the testing process

Between January 24 and 26, the oral tests were held, which were transmitted by the Facebook channel of the Transparency Function. They would be the scene of new resignations. Carlos Vásquez showed up at the test to resign, calling into question the impartiality of the process. For the Commission, the resignation "prevented the commissioners from appreciating the preparation and level of knowledge of the candidate". Sosa also resigned at that time, leaving only five applicants out of the nine that had been qualified.

Despite the resignations and criticisms, the Commission managed to present the final scores, which, despite the possibility of a revision, were not modified. The best scored was Richard Ortiz with 94, Jhoel Escudero, with 93 and Alejandra Cárdenas with 89.5. The other two candidates were left behind, as is the case of Ana Carolina Donoso with 75 and Luis Sarango, with 58.5.

The Commission appointed the three highest scoring candidates as judges and assigned the remaining two to the bench of eligible candidates (who in theory can join the Constitutional Court if someone is missing). With its final report, the Qualifying Commission concluded one of the most complex competitions in recent years. 

The vision of the observers

The process counted on a citizen overseer, chaired by Janeth Carrillo, who monitored the contest. At least five more people were part of the overseer's office, but this was complicated by covid contagions and also by the crisis of the Participation Council, whose officials were to guide the drafting of the document, which at the time of writing this report had not been submitted. Carrillo did not want to advance his impressions.

On his side, the Citizenship and Development Foundation delivered its own report on this process. Mauricio Alarcón, executive director, announced that there have been several incidents in the process, based on the rules resolved by the Constitutional Court in 2020. Once the competition was over, a lottery was held to determine who would leave and also to decide what to do with possible resignations.

Alarcón said that there were omissions in the Commission, whose members had to comply with the same requirements of those to be elected. Thus, he pointed out that the members of the Qualifying Commission did not present their patrimonial declarations before the Comptroller's Office, something they were obliged to do, since Alarcón maintains that they are public officials.

A first declaration that the process was not successful, where incomplete information was provided and a "subjective and superficial" analysis led to the fact that when the names were repeated, they had to be accepted. The jurist emphasizes that the names that had already been discarded should not have been accepted either and that the Commission should have explained why it accepted them.

Alarcón argues that a rule is needed to regulate conflicts of interest, in relation to the questioning of the Qualifying Commission. Among this type of conflicts, he highlights previous professional relationships or the fact that Dunia Martinez, despite being part of the pool of candidates for the Constitutional Court, joined the Commission.

For the expert, the forms had open questions where subjectivity would always be present, which generated problems and doubts. 

This is the complete report by Fundación Ciudadanía y Desarrollo (Citizenship and Development Foundation).

In the 47-page report, the Foundation made nine recommendations, among them, that the Constitutional Court should adjust its internal regulations to the regulations in force, that the members of the Qualifying Commission should not have conflicts of interest and that they should also present their sworn declarations of assets, as well as that in their decisions they should respect the legal norms. In addition, Citizenship and Development recommended that the Commission be correctly formed and that it be completed in the event of resignation. The eligibility list was also the subject of a recommendation, as there is a lack of regulation on its formation and operation.

The Foundation also requested the adequate use of electronic media to promote transparency and publicity in this process. Finally, they requested a standardized regulation applicable to future processes for the renewal of judges of the Constitutional Court. 

 

   INTERVIEW   

"The new judges will have to demonstrate that they have no ties to the regime."

Vanesa Aguirre, president of the Qualifying Commission

What is your impression of the selection process?

I think it is evident that it was not easy. There were many incidents, but the balance is positive because the work was accomplished and the country's institutions were protected.

In previous processes, were there as many resignations as in this one?

One candidate did resign in a previous process, but the circumstances were different. How Dr. Ortiz, Dr. Cárdenas and Dr. Escudero perform is up to them, and they will have to demonstrate that they are qualified for a high magistracy such as that of the Constitutional Court.

In their resignations, Zaidán, Sosa and Vásquez questioned the fairness, evidence and other aspects of the process. How do you respond to these doubts?

It is necessary to take into account the moments in which these resignations took place. Mr. Zaidán resigned when the challenge against him was accepted for processing, perhaps encouraged not to answer what was stated in the challenge. Mr. Sosa and Mr. Vasquez resigned once the results of their written test were known. These facts indicate, by logical deduction, that the low results led them to withdraw from the following stages. Prior to that, they did not express any disagreement about how the competition was being conducted. It was surprising that they only expressed their disagreement when the scores were known. In the case of Bárbara Terán it was clearly a health problem.

Requests for requalification were made at the end of the process, but all were rejected, why?

We found that in the grade revisions there were no rationales. Test standards were published and the answers were nowhere near to what was posed. In the case of the merits, the guidelines of the regulations were followed. All criteria have been published in the appendix of the final report.

What will be the role of the people remaining in the pool of eligible candidates? How many were there from previous processes?

I believe that in the previous process there were 11 eligible candidates, to which must be added the two in this competition.

It was questioned that after Oyarte's resignation he was not replaced in the Commission, was this necessary?

The nominating function, which was that of Transparency, did not decide anything in this regard. In the previous process, we also suffered a loss, but that is not a reason for nullity or an irregularity. We were not competent to replace Dr. Oyarte.

After declaring the process void, the Executive insisted on the same names. Was this legitimate?

It can be read in several ways, some argued that the State functions did not take this issue seriously, but I believe it was legitimate. The Commission applied the rules and regulations, and the sending of replacements was complied with, since all of them met the requirements.

It was questioned that the Commission did not act on public complaints about candidates, could they do so?

The public was given the possibility to question the candidates and for that there was a challenge phase. But the Commission could never act on its own initiative to remove people on issues that we may have known privately. A principle of impartiality could not be broken and the Commission did not have an inquisitorial principle to act.

Throughout the process there was a discussion of "notorious probity", a totally subjective issue. How can this criterion be analyzed?

It is difficult, but for example, you can include certificates from the Bar Association that you have not received any sanction from the Court of Honor, or from the Judiciary Council. In the case of a teacher, with evaluations confirming that he/she acts in a probative manner. A judge may include his or her sentences, but this is a difficult matter.

It has been said that the three finalists come from Minister Vela's circle, what is your opinion on this matter?

It turned out that two of them are professors at the Universidad de las Américas. This is a situational matter and in practice the new judges will have to demonstrate that they have no ties to the government. It is necessary for the Constitutional Court to limit any excess of public powers. I personally do not see what the problem is because whoever nominates the candidate must have some knowledge. I am not aware that the Minister of Government has sent those names but only that they came from the Executive. 

   INTERVIEW  

"Some were favored and others disadvantaged"

Salim Zaidán, former Constitutional Court candidate

In your resignation you questioned the impartiality of the Commission. What is your opinion of the incidents throughout the contest?

There are two actors responsible for this delegitimized process: the nominators and the Commission. I saw little commitment to strengthen the Court, the level of the candidates was not optimal, there were no candidates from the judicial career or with litigation experience. They fell into the usual trap: looking for candidates in academia and political circles. With the resignation of Rafael Oyarte, only one constitutionalist, Dunia Martinez, remained in the Commission. This had already happened in the previous contest. The Commission is supposed to be composed of professionals with the same level as the judges.

How would it have been proven that there was no impartiality?

Friendships were evidenced, such as the one between the legal secretary of the Presidency, Fabián Pozo, and commissioner Édgar Neira, who is also part of Ecuador Libre. Commissioner Vanesa Aguirre and candidate Ana Carolina Donoso were arbitrators in the Chamber of Commerce of Quito. Dunia Martínez was a colleague of the three winners at the Universidad de las Américas. With such a Commission, it was impossible to evaluate skills and knowledge impartially. Time proved me right and the links have become evident. The three finalists are very close to Vela.

The Commission says that there is nothing unusual about recommending people who know each other...

The desirable thing is to look for people with recognized trajectory, not with closeness or friendship with the authorities. People with training and experience in constitutional law should have been sought in the courts of justice, in the academy, and not only in the circles of the authorities. This happened to the three functions of the State. There should have been an objective profiling of constitutionalists. It was sought only in Quito and Guayaquil when there are lawyers from other cities.

There were four resignations, more than in previous contests. How to interpret that?

There have been questionings in the past but never so many resignations. They should accept in the Commission that there were questionings. Candidate Sarango complained about the grading. I reviewed the exams and I believe that there was not an adequate evaluation of the written tests. Some were favored and others were disadvantaged. All re-grades were rejected, but there were generous marks for the top candidates. There were exams with huge errors with 38 and 39 points. The distance between the qualifications confirms who benefited. The standard of the written exams was very low even though some had very high marks. I think that was also suspicious. In the oral exam there were poorly posed cases, open questions, no correction of candidates' mistakes, there was a low level of commissioners and candidates. In the merits there were also doubts, only four of the five commissioners qualified and there were also very generous marks.

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