ECUADOR: An Introduction to Public Law

Facets of Public Law in Ecuador 

Public law, as a fundamental pillar in the legal structure of a society, plays a transcendental role in establishing the rules and principles that regulate the relations between the state and its citizens, as well as among the citizens themselves. Its importance lies in the fact that it lays the foundations for the exercise of public power, the protection of fundamental rights and the resolution of conflicts of collective interest. By encompassing areas such as constitutional and administrative law, public law becomes the essential normative framework that guarantees stability, justice and equity in a society. Moreover, the constant evolution of social and political dynamics demands a continuous adaptability of public law to reflect and respond to the changing needs and values of the community, consolidating its relevance in shaping a legal order that promotes harmonious co-existence and general welfare.

Arbitration 

Currently, there is a tendency to submit public law conflicts to arbitration, whether at the national or international level, which reflects a significant change in the perception and application of alternative dispute resolution mechanisms in the public sphere. Despite the fact that in Ecuador there are regulatory obstacles that have historically limited the possibility of agreeing to arbitration in public law matters, there is a marked flexibility emerging both in public institutions and in the Attorney General’s Office. This change suggests a recognition of the effectiveness and efficiency of arbitration as a tool for resolving disputes of a public nature, evidencing the adaptability of the Ecuadorian legal system to contemporary demands.

In this context, the predisposition to the use of arbitration in public law cases opens the doors to an alternative means of conflict resolution that, although implying normative and conceptual challenges, also offers benefits such as speed, specialisation of arbitrators and the possibility of maintaining the confidentiality of certain aspects. The greater flexibility on the part of public institutions and the Attorney General’s Office to consider arbitration as a valid option denotes a pragmatic recognition of the complexity of contemporary conflicts and the need for agile and specialised mechanisms for their resolution.

Crucially, this change in perspective not only reflects an adaptation to global dynamics in dispute resolution, but also suggests an effort by the Ecuadorian authorities to strengthen legal certainty and encourage investment by providing parties involved in public disputes with a more agile and predictable framework. On the other hand, it is worth noting that, in the Ecuadorian context, the Constitutional Court has consolidated its position as a key player in the resolution of conflicts. It has a highly relevant role in the country’s judicial system. This institution, which is the highest body of constitutional interpretation, has emerged as a crucial instance to address disputes involving fundamental aspects of Ecuador’s political and social life.

It is undeniable that the Constitutional Court has become the epicentre of conflict resolution with political components today. In fact, on many occasions it has positioned itself as arbiter in matters that go beyond the legal sphere, involving political and social considerations of great importance, which at various times has led this body to exceed its powers and pronounce on aspects not necessarily within its competence. Thus, the Constitutional Court’s decision making has had a direct impact on the configuration of the political scenario, establishing precedents and delineating normative limits.

However, the Constitutional Court has not been the only body that has taken on great importance in the resolution of public conflicts. In Ecuador, there is a marked trend towards the use of jurisdictional guarantees as the main mechanism for resolving public conflicts. These guarantees, backed by the Constitution, represent a valuable tool for redressing violations of constitutional rights, providing an effective and expeditious means for the protection of citizens against possible abuses of state power. However, over the last year, a worrying abuse has arisen in the application of these guarantees, generating concerns about their indiscriminate use and the need to establish clear limits.

Abuse of jurisdictional guarantees 

The abuse of jurisdictional guarantees has awakened the attention of the authorities and society in general, raising the urgency of addressing this problem. There is a possibility that, in the coming year, the Constitutional Court or regulatory reforms may intervene to contain such abuse and ensure that the application of these tools is carried out in an appropriate manner in accordance with the legal system. This possible regulatory adjustment reflects the authorities’ commitment to preserve the effectiveness of jurisdictional guarantees without allowing them to become instruments for reasons unrelated to their original purpose.

A persistent challenge in this context is that proceedings arising from jurisdictional guarantees may be heard by any judge, regardless of his or her competence. This situation raises the possibility that issues that require specialised knowledge in the constitutional field may be resolved by judges who lack the necessary expertise, since they are only experts in the subject matter that corresponds to them (civil, criminal, labour, and so on). The need to address this issue highlights the importance of not only containing the abuse in the application of jurisdictional guarantees, but also of perfecting their use to ensure the proper administration of justice.

Resistance of indigenous and environmentalist groups

In constitutional proceedings, judges have been asked to resolve highly technical issues, such as aspects related to mining activity, which in recent years has undergone significant development, becoming an important pillar of the state’s economic income. However, with respect to the resistance of indigenous and environmentalist groups, whose collective position is intended to be discussed through jurisdictional guarantees, these actors perceive mining as a potential threat to their rights and to the environment.

Despite the tensions and challenges faced by the mining industry in relation to the claims of indigenous and environmental groups, it is important to note that Ecuador’s environmental legislation has been internationally recognised for its rigorousness. This legislation establishes strict standards for mining activity, with the objective of guaranteeing the protection of the natural environment and sustainability. Ignorance of this legislation by some critics may generate misperceptions about the ability to reconcile mining activity with nature conservation.

In this context, it is crucial to highlight that if the standards established in the environmental legislation are adequately met, it is possible to achieve a conciliation between the development of the mining industry and the conservation of the natural environment. The responsible implementation of mining practices, in line with environmental regulations, can pave the way for a harmonious coexistence between economic activity and environmental preservation, thus mitigating the concerns raised by indigenous and environmental groups. This balance is a crucial challenge for the sustainable development of mining in Ecuador.

The same has happened with other industries, related to extractive activities of non-renewable natural resources, such as oil exploitation, which has even been banned in certain locations, through popular consultations, which have – and will have – a serious impact on Ecuador, as the concession companies have been affected. The responsible implementation of practices in compliance with Ecuador’s rigorous environmental legislation is presented as the key to guaranteeing a sustainable balance between economic activity and the preservation of the natural environment.

Conclusion 

In conclusion, the importance of public law is revealed as a fundamental pillar in the configuration of a just, equitable and harmonious society. This field of law, by establishing the rules and principles that regulate relations between the state and its citizens, lays the essential foundations for the exercise of public power, the protection of fundamental rights and the resolution of conflicts of collective interest.