: between YES and NO there is much to learn and much to ponder. Montecristi Referendum 2010: justice, rights and democracy
Mideros Andrés Mora
The plebiscite, referendum and / or referendum is a mechanism of direct democracy in which popular sovereignty is exercised, and where civic participation of all / I the / o Citizen / os is vital to strengthen society. A process of direct democracy is desirable in itself and that encourages participation, and although it may be imperfect is the most equitable manner possible social choice. Direct democracy is guaranteed in the Constitution, with rights of participation rights include: participate in public affairs and to be consulted, among others. As a society, there is now more democratic than that in which the discretion of each person is worth the same (one vote).
democracy based on majority, but requires strict respect for minority rights (to differentiate it from a dictatorship), and the rights must seek the welfare of society as a whole (to generate good living , justice and equity, not just individual accumulation). It is clear that "the majority can be wrong" and that the votes are induced for and against using media campaigns and other mechanisms to disseminate opinion, information, disinformation, arguments, lies, and / or deceit. However, the result of a consultation is better than the action of a person or group of persons (although are democratically elected representatives), provided they are not highly specialized topics, or that be is informed and adequately discussed.
Beginning in 2011, President Rafael Correa presented ten questions that received a positive opinion on its constitutionality by the Constitutional Court, will lead to a referendum process (constitutional reform) and referendum . It is important to note that the popular statement is immediate and mandatory, and that the questions require an absolute majority of valid votes for approval. No vote and vote no or white is to make others the decision.
Topics included are diverse, but include referendum questions related to the justice system. Some people say they have checkered themes to create distractions. It would examine whether the same people who say you can not spend resources on popular queries all the time ... I think that many if they are. Unfortunately, the initiated, what was missing was prior discussion and dialogue. Ie, pending the discussion on the questions and its annexes, and now there is no place to say "I agree in substance but not in the way" or "I agree with some, but not with another" , or "this issue should go to consultation and it will not." Apparently, the questions posed by the Government's position, and the official debate appeals to support the citizen's revolution with the SI. We know what to expect from the opposition ... NO.
The questions presented by the President can be understood as a proposal to further breakthroughs, but erroneously high pass raises the existence of the National Assembly (where reforms could be discussed, prior to the referendum ), it overrides the Transparency and Social Control (who was born without force, and apparently the government wants to eliminate), is to involve Executive Function in the Judiciary (violating the separation of powers), and calls for the vote based on the support or rejection of the Government, when they should seek a comprehensive dialogue citizen.
In the present process is important to note the work of the Constitutional Court, which as the highest control and interpretation of the Constitution should guarantee the constitutionality of the questions. The opinion of the Court should be expanded in terms of respect for the principles and constitutional guarantees, and the court must show its independence as a guarantor of democracy. Just as we must trust in government, we must also trust the Justice, the National Assembly, the Watch. If we have to rely on one person (albeit reliable) will not achieve the changes we as a society need.
Important to note that Article 441 of the Constitution is clear in stating that a referendum requested by the President of the Republic, may be amended one or more articles of the Constitution, but you can not alter the fundamental structure, character and elements of the state, nor restrict the rights or guarantees. And ensure that rights are not restricted, the Constitutional Court must consider whether the questions concern the principle of independence of powers. Furthermore, in the form of questions, the question is whether inducing, by its wording, to vote for or against.
Fortunately, the referendum and referendum provides an opportunity for society to decide, and therefore each and all are free to think, debate and vote as they deem necessary. However, that "most people do not mistake" and achieve true democracy, it is the duty of the State (all institutions) and the media to stimulate discussion and provide information, but that does not remove the responsibility of everyone to analyze the questions, create dialogue, to think as a society and not individually, to think in the future and not just short-term thinking and vote on social welfare.
Finally, although there are problems and constraints in the process, it is important that the Government take the initiative for the use of direct democracy, and that is the sovereign (the people) to decide on important public issues. As a contribution to the dialogue, then I share my thoughts on each of the proposed questions, which may change after the ruling of the Constitutional Court but are a starting point. The questions are grouped into two parts: the first group of five questions relating to constitutional reforms (Referendum), where four are based on issues relating to the justice system, and the media and financial institutions, the second group, has other five questions, including issues of corruption, gambling, rights of nature means communication and social security. Questions and schedules can be found at: http://www.presidencia.gob.ec/pdf/final_preguntas.pdf .
Referendum - Question 1:
In order to improve public safety, are you agree that the law changed for the reasonable time for revocation of pretrial detention, by amending the Constitution as set out in Annex 1?
Annex referred to paragraph 9 of Article 77 of the Constitution. The reform eliminates periods of 6 months and 1 year for offenses punishable by imprisonment and confinement, respectively, after which the remand order has no effect. Instead it provides that the terms and conditions set out in the Act
The reform gives flexibility for the legislature (National Assembly) can establish terms and conditions as needed while maintaining the warranty expiration of preventive detention, which seeks to prevent people are deprived of liberty without trial (which guarantees the right to liberty). In what should be, the Act (which established the terms and conditions) should prioritize the right to liberty, and search for balance between the efficiency of the judicial system (both to punish and to acquit), due process and citizen security.
However, the reform seems simple but it must be analyzed in the present context, since it is intended that persons deprived of liberty without trial, are not released until complete the process. The concern is that by not defining the terms for the expiration of the remand, you lose the guarantee of the right leading to political definitions in the National Assembly. From a public policy view, the aim should be to increase the efficiency of the judicial system, so that "criminals" we are placed / os released for lack of sentence, and not continue to detain people for inefficiency of the judicial system (including those to be innocent). No prisoners without trial, but the guarantee of freedom and justice flexible, timely and independent.
Referendum - Question 2:
In order to avoid impunity and ensure the attendance at criminal trials of people charged, would you agree that alternatives to detention is applicable only for misdemeanors, amending the Constitution as set out in Annex 2?
Annex 2 presents amendments to Article 77 of the Constitution. The first amendment relates to paragraph 1, which made 4 modifications: i) instead of establishing that the "deprivation of liberty applied exceptionally" notes that this "will not be the general rule"; ii) as reasons for the deprivation of liberty is maintained to ensure compliance with the penalty and the presence in the process (clarifying that refers to the person charged or accused) and includes "the right of victims to justice prompt, timely and without delay"; iii) increases the maximum period of detention without trial design for flagrant crimes from 24 to 48 hours, and iv) is removed the possibility of the judge or justice of the "direct preventive measures other than detention," and states that non-custodial measures shall be used only for crimes that can "ventilate using special procedures. "
The second reform concerns the numeral 11, which guaranteed priority implementation of sanctions and alternative security measures preventive detention (guaranteeing the right to liberty), based on "the circumstances, the personality of the offending person and the demands of social reintegration of the sentenced person." This paragraph is replaced in a manner that indicates that "the judge or court may impose penalties and alternative security measures deprivation of liberty only in those crimes, according to the law, are likely to ventilate through special procedures. "Finally, repealing Article 159 of the Criminal Procedure Code.
This reform changes the shape and substance of the articles in the Constitution. The original version considers the deprivation of liberty as an exceptional measure, priority measures and considering alternative social reintegration as a priority and start system justice, and guarantee the right to freedom of persons who may be charged, have not been convicted (including those who are innocent). The proposal raises the deprivation of liberty as necessary to prevent impunity, which can be considered pragmatic face of growing insecurity prevailing in the country, but does not respond to the need for timely justice nor Warranty rights.
It should be noted that prior to the deprivation of liberty, as a precautionary measure, it should strengthen the justice system and alternative measures to ensure the right to liberty and the presumption of innocence. In the case flagrant crime, the arrest is appropriate, but should be accompanied by prosecutors acting ex officio (without private prosecution) to ensure justice. Beyond the arrest, what is required is to strengthen the justice system. As an example there is the case of Cuenca, where the system works efficiently, that is ... if you can.
Referendum - Question 3:
In order to avoid conflict of interests, would you agree to prohibit the private financial system institutions and the companies private communication of national character, its directors and principal shareholders, own or shares outside the financial sector or communication, respectively, by amending the Constitution as set out in Annex 3?
Annex 3 provides for two amendments to the Constitution. First, change the first paragraph of Article 312, which prohibited financial institutions and groups have stakes in companies outside the financial activity. Instead it states that "the institutions of the private financial system and the private media in nature national, its directors and principal shareholders, may hold, directly or indirectly, of equity in companies outside the financial activity or communication, as appropriate. The respective control agencies will be responsible for regulating the provision. "
The second reform, amending the first paragraph transitional provision of the twenty-ninth, which stated that "legal person shareholding in financial sector companies outside this sector, were sold within two years from the entry into force of this Constitution. "replacing it with" stocks and shares they hold the private financial system institutions and private media companies national, its directors and main shareholders in various companies involved in the sector, were sold within one year after the adoption of this reform in a referendum. "
The reform aims to ensure the independence of the media and non-interference of financial entities. It argues that institutions Financial can not have economic interests in other sectors, thus reducing moral hazard in financial intermediation, increasing specialization and avoiding the formation of large economic groups where financial activities related can lead to financial crisis. It should be understood that while financial institutions are private entities are managing resources of depositors and are therefore regulated. In addition, financial services are a public service, which is exercised by authority of the State. On the other hand, seeks to stop the relationship between economic groups and media to ensure its independence, transparency and objectivity.
Freedom of expression requires free media and independent economic and political interests. The interference of politicians and private interests in the media reduce their independence and becomes a form of imposition of criteria, distorting their social function. Public media are suitable provided they do not meet the interests of the government of the day, but a communication policy. Freedom of speech, independent media requires the Government, but worse is the private capture of the media, because the Government at least has been elected democratically.
Referendum - Question 4:
In order to overcome the crisis of the judiciary, are you agreed to replace the Plenary Council of the Judiciary by a Technical Committee composed of and three representatives appointed, one by the President of the Republic, one in the National Assembly and one by the Transparency and Social Control, for a period of 18 months in charge of all and each of the functions of the Judicial Council and to restructure the judicial system by amending the Constitution as set out in Annex 4?
To understand the importance of this question, it introduced the National Judicial Council. The Council must conform (designating its members) the National Court of Justice, Provincial Court and District Courts and Criminal. The Constitution establishes the Judicial Council as the entity responsible for defining the policies of the judicial system, conducting the selection process of judges and other servants of the judiciary, and the evaluation, promotion, and sanctions, and ensure transparency and efficiency of the judiciary, among other functions.
The Constitution establishes the National Judicial Council as the governing body, administration, supervision and discipline of the judiciary, is made up of nine members, with a period of six years. Six members must be professionals in law, and three areas of administration, economics, management or other related fields. The appointment of members (and alternates) establishes a duty and an Council of Citizen Participation and Social Control (Article 208, paragraph 11) by competitive examination and opposition, with citizen oversight and appeal (Article 108).
Annex (4) of this question, replaces Article 20 of the Transitional Regime, which stated that within 180 days will be organized by the Council of the Judiciary, through the procedure established in the Constitution. The reform proposal states that "dissolves the current plenary session of the Council of the Judiciary. In its place, create a Transitional Technical Commission composed of three delegates appointed, one by the President of the Republic, one in the National Assembly and one by the Transparency and Social Control. The Committee shall have all powers of the Judicial Council, including powers granted to the new Judicial Council Provisions Transient Code of Judicial Function.
The new plenary of the Council shall be appointed under the procedure laid down in Article 179 of the amended Constitution, after eighteen months from the date of the establishment of the Transitional Technical Commission. "Based on This clarifies that "the merits and Opposition Contest conducted by the Council of Citizen Participation and Social Control for the appointment of nine Members of the Judicial Council, shall lapse for lack of sustenance." Finally, the repeal of the first transitional provision of the Code of Judicial Function.
The proposal, as presented by President Rafael Correa is based on trust in government to carry out the profound changes required in the justice system. However, beyond the trust and support the Government and a political project can not allow interference by a state function in another. The breakdown of the separation of powers, violates the principles and spirit of the Constitution of Montecristi. In this case arises to create a Commission with a representative of the executive, breaking the separation of powers, and a representative of the National Assembly, which leads to the politicization of justice. Finally, it ignores and undermines the Council of Citizen Participation and Social Control.
to strengthen justice, the worst that can happen is that the politicization and to allow the interference of other powers in it. The past practice of the 'party, were based on the capture of justice and the pursuit of absolute power. While Order now confidence, there is a project that differs totally from the old political parties can not trust a person or group to perform two or more tasks simultaneously. It is possible that she does, and is a pragmatic option, but bad for the concept and principle of separation of powers. What you should do is strengthen the Council of Citizen Participation and Social Control, so that according to currently established name the / os new / os Judicial Council members based on merit competition, with oversight and the possibility of impeachment. Not required that the government (executive) to do everything, but each function to meet its mandates.
Referendum - Question 5:
In order to have a more efficient administration of justice system, are you agree to modify the composition of the Judicial Council, amending reforming the Constitution and the Organic Code of the Judiciary as set out in Annex 5?
This question, in its annex, proposes amendments to the Constitution and the Code of Judicial Function. In amending the Constitution Articles 179 and 181, changing the formation of the Council of the Judiciary (described above). By modifying this Council would consist of: the President of the National Court of Justice, the Attorney General, the Ombudsman, a delegate of the Executive and a delegate of the National Assembly. The delegates of the executive and legislative functions should be ratified by the Council of Citizen Participation and Social Control, by public scrutiny (under the oversight and impeachment process). In Article 181 stipulates that decisions are taken by simple majority, and finally deleting Article 180 (outlined above).
In the Code of Judicial Function, replace the Judicial Council's "Resources Management Commission" for " Human Resources Unit. " In addition, articles are amended to officers / os as a judicial service commission, place of residence. Finally, reform of integration, functional structure and functions of the Judicial Council. The reform of the Civil Code of Judicial, seems unnecessary as early referendum and that given National Constitutional Assembly is called to legislate the matter, one can not override another function of the state, and go to a referendum but is has discussed the issue first.
If you are looking for an independent judiciary is no reason to delegates of the executive and National Assembly in the Council of the Judiciary. It's the Transparency and Social Control, which should control whether the formation of the Council of the Judiciary, for it created the "fifth power". Nor can include the / a Chairperson of the National Court of Justice, the / Attorney General, or the / a Ombudsperson Publica, because the Judicial Council to select, evaluate and sanction judges and other servants of the function Legislature. You can not have a body composed of selecting and evaluating who should be selected and evaluated.
To achieve long-term goals, you must respect and strengthen the institutions, respecting the separation of powers, and broadening citizen participation and social control. The process can take time, but the restructuring of the state must make based on the Constitution of Montecristi for this makes sense, and not betray the people's mandate and the roadmap of the political project.
Consultation - Question 1:
In order to combat corruption, are you agree that private enrichment crime is not justified?
Corruption is an evil upon which I venture to think that we all want to eliminate both in public and in private. However, it is unclear when the unjustified enrichment is achieved without having committed an unlawful act. Nor is defined by that or to whom or what to justify the "enrichment." It is clear that in the public sphere unjustified enrichment is an offense for possible misappropriation of public funds, and that the / officers will have to declare their incomes before and after public office, and justify their enrichment outside the Revenue received for the role.
However, in private what is illegal by law that prohibited Beyond the rejection of the inequities and inequalities of income that I consider unfair, harmful to society and even immoral, I see no sense a justification of "enrichment" private . I understand that all / you are obliged to declare our income tax purposes, and that this declaration should be made in accordance with the law, so a false declaration and tax evasion is a crime in itself. Also, consider that to be considered illegal enrichment must be the result of unlawful acts.
It is important for the debate to know what is meant by private illicit enrichment, and indeed this definition should be part of the question not to give rise to subjectivity and subsequent interpretations (in case of approval the question.) I believe that crime instead of something achieved through illegal acts (crimes), it should strengthen the regulation on these events as well as mechanisms of control and punishment. I understand the statement of income, but not the justification for private enrichment when this is the result of legal actions. In case of referring to immoral acts or outside of ethics, it is necessary to establish whether these acts are illegal (and classified) and otherwise subjectivity in legal matters is a dangerous thing for the guarantee of rights.
Consultation - Question 2:
In order to avoid gambling for profit become a social problem, especially in the most vulnerable segments of the population, Are you in agreement in their respective jurisdictions prohibit the cantonal businesses dedicated to casinos and game rooms?
is important to note that the prohibition applies to casinos and game rooms for profit. However, I am raising questions as regulated in order to profit in the event of private meetings for gambling. I think that potential social problems remain in these meetings. Moreover, the generation of illegal gambling dens in response to the ban could increase these problems and create networks of violence.
It is undoubtedly important regulation and control of such business, but the ban seems excessive and unclear in their objectives. Not find social problems related to gambling, which are greater than those associated with addiction to alcohol, snuff or other drugs. However, I think that if a ban could create black markets and the consequent violence related, and whose control is more complex than the entities that request special operating permits.
I believe that social problems related to certain (possible) behavior of individuals (for gaming) are not resolved by prohibition, but through the proper regulation and effective control of both the supply and consumption of (potential) problem generators social as well as with information, prevention and support networking. Not all people change their behavior gambling, those who do continue to "play" unless there is support and containment systems. However, it is a question that is required to clarify goals, determine the relationship between gambling and social problems, generate debate and disseminate information specialist to know what is best for society.
Consultation - Question 3:
In order to avoid killing an animal just for fun, are you agree to prohibit in their respective jurisdiction cantonal , public entertainment where animals are killed?
is important to note that the question is set to cantonal courts, meaning that the decision may be different in each county. Although the question is complex it includes values \u200b\u200brelated to life, culture, tradition and nature, to generate a social choice process given the same value (one vote) as determined by each individual.
The question raises questions about the rights of nature, the right to a culture of peace and respect for life, raised in the Constitution. While this kind of shows are performed privately, the death of an animal for the fun of making an attack on rights issue of public interest. Although the question says only events in which death occurs in an animal, is an important step to end violence and torture just for fun, but this does not end in death.
My reflections on bullfighting, but can be generalized, can be reviewed at: http://andresmiderosmora.blogspot.com/2010/11/consulta-popular-y-corridas-de-toros.html . Finally, it should be noted that the question is clear regarding the prohibition entertainment where animals are killed, which does not prohibit a show in itself, by allowing that "traditions" can be reformed and shows appropriate way to ensure the life of animals.
Consultation - Question 4:
In order to avoid excesses in the media, "you agree to deliver a media law that creates a Council Regulation that regulates the distribution of content on television, radio and print publications that contain messages of violence, sexually explicit or discriminatory, and establish the criteria for further responsibility of journalists or media issuers?
Freedom of expression is necessary for the strengthening of democracy. Media independent, objective and responsible are necessary to ensure that its existence will generate social value. Regulation that ensures messages of peace and tolerance is good for building a culture of peace, to eradicate discrimination in all its forms and to guarantee the right to communication. It must guarantee freedom of expression and the objectivity of the media, while ensuring rights of all persons not to be defamed and you'll receive information.
A Council Regulation, is positive provided that is independent of political power and economic interests. The Communications Act is necessary in Ecuador, and should regulate both private and public media, including generation, to ensure professionalism, provide space to all voices and forms of expression. The discussion should not be on whether or not a communications law (which is needed) but on the content of the law is not questioning the need for a Council Regulation (which is necessary) but in structure, independence and functions. More than a query, is a topic of citizen oversight in the National Assembly, and respect for civic and political agreements (if any). In my opinion, the answer is yes, but we must be aware of the specifics of the law
Consultation - Question 5:
In order to avoid labor exploitation, "you agree that no affiliation with Social Security Institute workers as employees to be criminalized?
The Constitution provides the guarantee of social security as a primary duty of the State. Social security is an inalienable right which is based on principles of compulsory and universal. Included in the rights that guarantees freedom and equality in opportunities, and establishes the responsibility of Ecuador and Ecuadorians. Likewise, the Constitution provides for social security as a component of inclusion and fairness to the Good Life.
social security system is established in the Constitution and public, with the Social Security Institute (IESS) responsible for the provision of contingency social security (sickness, maternity, paternity, occupational hazards, unemployment, unemployment, old age, invalidity and disability, among other possibilities). In the case of workers is in a dependent relationship, the contribution must be made by both the person and their employer is.
Whereas the provisions of the Constitution, it is understood that non-membership of workers IESS / agency relationship is in breach of an inalienable right (the / these workers are unable to give up social security), as security is the duty of the state, and responsibility of all / os. The violation of a right not guaranteed by administrative sanctions or fines, it should be considered a crime and be punished as such (the Act define the forms, cases and procedures). Las / os employers / it must respect the law and ensure social security contributions as part of its social responsibility, if rights are respected there will be no reason for the sanction.
final reflection
These are personal reflections and initial construction, for a democratic process where open and respectful debate is essential. Consent vote is vital, including, but exceed, ideologies and political positions. Support or opposition a political project or the Government should not define in advance, the vote against decisions that affect society as a whole, to modify this and provide a framework for the future. It is true that direct democracy is always good, but not abuse it to ignore (without having exhausted the means) to other powers as the legislature, where they could deal with reforms of the Civil Code of Judicial ( according to the provisions of the Constitution) and relating to communications law, one can not use a referendum to reduce (without prior deliberation) of the emerging powers Role of Transparency and Social Control when it should be strengthened, and less to violate the principle of separation of powers.
is important to strengthen independently of the Transparency and Social Control, by consolidating the Participation Council and Social Control to fulfill their duties, rather than remove them. It seems that this Council (as the fifth power) was born without a voice, and is resigned to disappear. Likewise, the judiciary must be independent of other branches of government (executive and legislative branches) from the administrative level to the operative. Is constitutional guarantee citizen participation and independence of powers (in particular need of justice). We are in revolution, a revolution that the current administration, but a revolution that is public and is based in the Constitution of Montecristi (you can modify articles and forms, but foundational principles and spirit).
hope the referendum and consultation to strengthen democracy, the institutions of government (executive, National Assembly, Council of Citizen Participation and Social Control, and the Electoral) promote debate and participation and to provide information necessary also hope that the / o Citizen / we are responsible for informing you, discuss, debate, vote, respect and fulfill. It should give all the confidence and support to the Government to carry out their duties in the executive, but should strengthen the independence and capacity of the other branches of government (five in total), for democracy to endure and changes beyond of a government that is the goal of this revolution. Between the YES and NO, there is much to learn and much to ponder before you go to vote.
