As reported by this media, former president Rafael Correa in an interview he gave to the digital portal Panel The Spaniard advanced what would be the first moves of the strategy his political grouping would implement if they win the 2025 general election: “If we win the 2025 election or before, we will be completely surrounded. That Constitutional Court repeals presidential decrees, repeals laws, interprets the Constitution and thereby passes laws… Then they would rule. We would have to go to the Constituent Assembly, in addition to winning the elections, in order to recover the country. Otherwise, little can be done, because they have taken over the whole country”.

He then proposes going to the assembly through a national consultation, but without going through the Constitutional Court because, according to him, Article 149 of the Constitution allows the President of the Republic to call for a national consultation without a prior opinion.

You are completely wrong.

At least six constitutional assemblies were held in Ecuador in the 20th century, all of which promised to solve the population problem, and now another one is being proposed

The Constitution establishes three mechanisms for changing the constitution such as amendment, partial reform and the third mechanism is the Constituent Assembly, conceived as “the strictest of the mechanisms for changing the Constitution”, since it even implies the authority to draft a new constitution. . These three mechanisms require the intervention of the Constitutional Court at different times and in a binding manner, so there is no constitutional way to convene the Constituent Assembly without a prior decision of the Court.

The Constitution finally

A famous foreign constitutionalist once told me: if the Constitutional Court bothers politicians, it is because it works; worry when no one complains about her.

In addition, in general, Article 438 of the Constitution establishes the obligation – without exception – of the Court to issue a preliminary and binding decision on constitutionality, among other cases, for invitations to public consultations; that is, however you look at it, the Court must give an opinion before any public consultation, as is also required by law on the matter.

But to continue with the bad news for the former president, there is already express judicial practice that confirms all of the above, since there were attempts by citizens to convene the Constituent Assembly. Therefore, in opinion no. 5-20-RC/21 (rapporteur: Ramiro Ávila Santamaría) not only confirms that the Court must issue an opinion before any popular consultation initiative to convene the Constituent Assembly, but also establishes in this opinion that it is not possible to convene the Constituent Assembly with “full powers ” (unlimited, extraordinary, unconditional powers) since a body with “full powers” ​​is incompatible with the republican principle of separation of powers and constitutional democracy. in which the concentration of power and power in one body is incompatible. Therefore, The constituent could not, for example, enact laws, appoint or appoint, pardon or judge, since he could not exercise the powers of bodies exercising constituted power.

A famous foreign constitutionalist once told me: if the Constitutional Court bothers politicians, it is because it works; worry when no one complains about her. (OR)