The Constitutional Court of Ecuador (the “Court”) declared Executive Decree No. 604 unconstitutional on procedural grounds. The Decree contained the “Guidelines for the Application of Prior Legislative Consultation in the Issuance of Executive Branch Regulations” (the “Executive Decree”).
The Court concluded that the Executive Decree regulated essential aspects of the right to prior legislative consultation of Indigenous, Afro-Ecuadorian, and Montubio peoples and nationalities, a matter that, under the Constitution, must be regulated through an organic law enacted by the National Assembly.
Prior Legislative Consultation: A Collective Right Subject to Statutory Reservation
In its analysis, the Court reiterated that prior legislative consultation constitutes a collective right and a guarantee of prior participation regarding regulatory measures that may affect collective rights. Therefore, the regulation of its essential elements is subject to the principle of statutory reservation through an organic law.
According to the Court, prior legislative consultation includes essential aspects such as the identification of its beneficiaries, the conditions for effective and timely participation of the consulted groups, and its mandatory and prior nature as a requirement for the validity of State action.
The Executive Decree Exceeded Administrative Matters
The Court observed that the Executive Decree did not merely establish administrative rules for the implementation of the consultation process but directly regulated the content of the right itself.
As a result, the Court concluded that the Executive Branch regulated matters that can only be developed by the National Assembly through an organic law.
Unconstitutionality with Deferred Effects
Despite declaring the Executive Decree unconstitutional, the Court decided to defer the effects of its ruling in order to avoid a regulatory vacuum that could affect the exercise of the right to prior legislative consultation and legal certainty.
Accordingly, the Executive Decree will remain temporarily in force until the National Assembly enacts an organic law comprehensively regulating prior legislative consultation concerning legislative or administrative measures that may affect collective rights.
Significance of the Decision
The ruling reaffirms the scope of the principle of statutory reservation and strengthens the protection of the collective rights of Indigenous peoples and nationalities.
The Court also reiterated important jurisprudential standards regarding prior legislative consultation, including:
Finally, the Court ordered that compliance monitoring of this ruling be incorporated into Case No. 38-13-IS/19, through which it supervises the National Assembly’s obligation to enact comprehensive legislation on prior legislative consultation.
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