TITLE IX. SUPREMACY OF THE CONSTITUTION
CHAPTER 1. Principles
Article 424
The Constitution is the supreme law of the land and prevails over any other legal regulatory framework. The standards and acts of public power must be upheld in conformity with the provisions of the Constitution; otherwise, they shall not be legally binding.
The Constitution and international human rights treaties ratified by the State that recognize rights that are more favorable than those enshrined in the Constitution shall prevail over any other legal regulatory system or action by public power.
Article 425
The order of precedence for the application of the regulations shall be as follows: the Constitution; international treaties and conventions; organic laws; regular laws; regional regulations and district ordinances; decrees and regulations; ordinances; agreements and resolutions; and the other actions and decisions taken by public authorities.
In the event of any conflict between regulations from different hierarchical levels, the Constitutional Court, judges, administrative authorities and public servants, it shall be settled by the application of the standard of higher order of precedence.
The regulatory order of precedence shall take into consideration, in what pertains to it, the principle of jurisdiction, especially the entitlement to exclusive jurisdiction of decentralized autonomous governments.
Article 426
All persons, authorities and institutions are subject to the Constitution.
The judges, administrative authorities, and public servants shall directly apply constitutional standards and those provided for in international human rights instruments, as long as the latter are more favorable than those set forth in the Constitution, although the parties do not invoke them expressly.
The rights enshrined in the Constitution and international human rights instruments shall be for immediate observance and enforcement. The absence of a law or lack of knowledge about the norms cannot be alleged to justify the violation of rights and guarantees enshrined in the Constitution, to dismiss proceedings for their defense, or to refuse recognition of these rights.
Article 427
Constitutional provisions shall be interpreted by the literal meaning of its wording that is mostly closely in line with the Constitution as a whole. In the event of any doubt, it is the most favorable interpretation of the full and effective force of rights and that best respects the will of the constituent, in accordance with the general principles of constitutional interpretation, that shall prevail.
Article 428
When a judge, by virtue of his/her office or at the request of a party, considers that a legal norm is contrary to the Constitution or to international human rights instruments that provide for rights that are more favorable than those enshrined in the Constitution, it shall suspend the case and refer it for consultation to the Constitutional Court, which within no more than forty-five (45) days shall rule on the constitutionality of the norm. If the Court issues no ruling within the established time-limits, the affected party is entitled to file the corresponding complaint.
CHAPTER 2. Constitutional Court
Article 429
The Constitutional Court is the supreme body for controlling, constitutionally interpreting and administering justice in this matter. It exercises national jurisdiction and its seat is in the city of Quito.
The decisions related to the attributions provided for in the Constitution shall be adopted by the plenary of the Court.
Article 430
The Constitutional Court shall enjoy administrative and financial autonomy. The law shall determine how it is organized, how it functions and the procedures for performing its duties.
Article 431
The members of the Constitutional Court shall not be subject to impeachment, nor can they be removed from office by those who appoint them. Nevertheless, they shall be subject to the same controls as other public authorities and shall be answerable for all their deeds or omissions in the performance of their duties.
Without detriment to civil liability, in the event of criminal liability, they shall be charged by the Attorney-General of the Nation and tried by the full National Court of Justice, for which purpose a vote comprised of two third of its members shall be required.
Their dismissal shall be decided upon by two thirds of the members of the Constitutional Court. The procedures, requirements, and causes shall be determined by law.
Article 432
The Constitutional Court shall be comprised of nine members, who shall perform their duties in the plenary court and in chambers in accordance with the law. They shall hold office for a term of nine years, without entitlement to immediate reelection, and two thirds of them shall be renewed every three years.
The law shall determine the replacement mechanism in the case a standing member is absent.
Article 433
To be designated member of the Constitutional Court, the following shall be required:
- To be an Ecuadorian national and in possession of political rights.
- To hold a university degree in law, legally recognized in the country.
- To have practiced with notable rectitude the profession of attorney-at-law, judge or university instructor in law for a minimum often years
- To demonstrate probity and ethics.
- To not belong or have belonged, over the past ten years, to the executive board of any political party or movement.
The law shall provide for the procedure to accredit these requirements.
Article 434
The members of the Constitutional Court shall be designated by a qualification commission comprised of two persons appointed by each one of the following branches of government: the legislative, the executive, and transparency and social monitoring. Members shall be elected from among the candidates submitted by the above-mentioned branches of government, through a public examination process, with citizen oversight and option for challenging the process. In the membership of the Court, efforts shall be made to ensure parity between men and women.
The procedure, terms and other elements of selection and qualification shall be determined by law.
Article 435
The Constitutional Court shall select from among its members a Chair and Vice-Chair, who shall hold office for three years and who cannot be re-elected immediately. The Chair shall act as the legal representative of the Constitutional Court.
Article 436
The Constitutional Court shall perform the following duties, in addition to those granted to it by the law:
- To be the supreme body for interpreting the Constitution and international human rights treaties ratified by the Ecuadorian State by its rulings and judgments. Its decisions shall be binding.
- To hear and resolve public claims of unconstitutionality, based either on substantive or procedural grounds, filed against general regulatory acts issued by authorities of the State. The declaration of unconstitutionality shall lead to invalidation of the challenged regulatory act.
- To declare, by virtue of its office, unconstitutional those norms that are related, when in those cases submitted to its examination it concludes that one or various of them are contrary to the Constitution.
- To hear and resolve, at the request of a party, claims of unconstitutionality against general administrative acts issued by all public authorities. The declaration of unconstitutionality shall lead to the invalidity of the challenged administrative act.
- To hear and resolve, at the request of the party, claims of noncompliance that are filed to guarantee enforcement of general administrative regulations or acts, regardless of their nature or hierarchy, as well for enforcement of rulings or reports from international organizations for the protection of human rights that are not enforceable through regular judiciary channels.
- To issue judgments that constitute binding case law with respect to actions of protection, enforcement, habeas corpus, habeas data, access to public information and other constitutional processes, as well as those cases selected by the Court for review.
- To arbitrate conflicts of jurisdictions or attributions among the branches of government or bodies established by the Constitution.
- To ensure, by virtue of its office and immediately, monitoring of the constitutionality of the declarations of state of emergency, when this involves the suspension of constitutional rights.
- To hear and sanction failure to comply constitutional rulings and decisions.
- To declare the unconstitutionality incurred by State institutions or public authorities that fail to observe, either totally or partially, the mandates contained in constitutional norms, within the time-limits set by the Constitution or within the time-limits deemed to be reasonable by the Constitutional Court. If this failure persists, after this time-limit has elapsed, the Court shall provisionally issue the regulation or enforce the observance, in accordance with the law.
Article 437
Citizens individually or collectively shall be entitled to file a special petition for protection against judgments, final writs or resolutions that have the force of sentencing. For ruling on the admissibility of this appeal, the court shall check compliance with the following requirements:
- That the judgments, writs and resolutions are final and fully enforceable.
- That the complainant shows that, in the judgment, there has been a breach, either by deed or omission, of due process of law or other rights enshrined in the Constitution.
Article 438
The Constitutional Court shall issue a prior and binding ruling of constitutionality in the following cases, in addition to those stipulated by the law:
- International treaties, prior to their ratification by the National Assembly.
- Calls to referendums nationwide or of decentralized autonomous governments.
- Objections of unconstitutionality presented by the President of the Republic in the processing of drafting laws.
Article 439
Constitutional proceedings can be filed by a citizen individually or collectively.
Article 440
The rulings and decisions by the Constitutional Court shall be final and without recourse to appeal.
CHAPTER 3. Amending the Constitution
Article 441
The amendment of one or various articles of the Constitution that does not alter the fundamental structure or the nature and constituent elements of the State, does not set constraints on rights and guarantees, and does not change the procedure for amending the Constitution shall be carried out as follows:
- By means of a referendum requested by the President of the Republic or by the citizenry with the backing of at least eight percent (8%) of the persons registered in the voter registration list.
- At the initiative of a number accounting for no less than one third of the members of the National Assembly.The bill of amendment shall be processed in two discussions; the second discussion shall be held, without delay, no later than thirty (30) days after a year has elapsed since the start of the first debate. The amendment shall only be adopted if it is supported by two thirds of the members of the National Assembly.
Article 442
Partial amendment not entailing any constraint on constitutional rights and guarantees or changing the procedure for amending the Constitution shall take place at the initiative of the President of the Republic or at the request of the citizenry with the backing of at least one percent (1%) of all citizens registered on the voter registration list or by a resolution passed by a majority of the members of the National Assembly.
The constitutional amendment initiative shall be processed by the National Assembly in at least two discussions. The second discussion shall take place ninety (90) days at the latest after the first. The draft amendment shall be approved by the National Assembly. Once the bill for the constitutional amendment has been approved, a referendum shall be called within the following forty-five (45) days.
For approval of the referendum, at least one half plus one of the valid votes cast shall be required. Once the amendment has been adopted by the referendum, within the seven following days, the National Electoral Council shall order its publication.
Article 443
The Constitutional Court shall rule which of the procedures provided for in the present chapter pertains to each case.
Article 444
Installation of a Constituent Assembly can only be called by referendum. This referendum can be requested by the President of the Republic, by two thirds of the National Assembly or by twelve percent (12%) of the persons registered on the voter registration list. The referendum must include how representatives must be elected and the rules for the electoral process. The new Constitution, for its entry into force, shall require adoption by referendum with half plus one of all valid ballots cast.
