Political Justice in Ecuador: the same old song


Gerard Coffey – Quito
May 2010

It’s an ethical question. What are the limits: how far should a political leader be prepared to go, not only in undermining his or her opponents but, more importantly, in suppressing differences of opinion on the same side? Is power to implement a policy agenda the only measure of a successful government?

In Ecuador, the question has been put to Rafael Correa. The context was a dispute between the President and a number of members of the National Assembly over their proposal to have the Attorney General, Washington Pesantez, removed from office.  Pesantez was accused, amongst  other  things, of favouritism in appointments, lack of impartiality, not complying with his obligations as Attorney General, and using his influence in order to shelve certain legal cases. Some statements are hard to dismiss, such as those of Lucy Blacio, the now ex district attorney from the Province of El Oro, who publicly accused the Attorney General of pressuring her to shelve a ‘delicate’ case.

In most instances it is the parliamentary opposition that proposes the removal of a government minister1: the objective is almost inevitably to gain political advantage. But this time, and herein lies the difficulty for Correa, the protagonists belonged to the governing Alianza Pais.

Feet of Clay

Two accusations in particular caught the public’s attention. The first was that the cousin of the Attorney General’s wife was able to buy a car belonging to a bank, a Porche Cayenne that the Attorney general himself had been using, at well below market value. The second and more serious charge, and the incident that instigated the entire investigation, was that Pesantez interfered in the processing of a case involving his wife Alicia Borja.  A young woman was killed in an accident involving a car in which Borja was travelling. A number of witnesses stated that she was driving at the time, although this was strenuously denied. What Pesantez has not denied is that he telephoned the acting local attorney, Patricio Sosa, and asked that his wife not be treated as a common criminal. A police officer who was also travelling in the car, which was apparently doing about 100km per hour in a lane reserved for buses, has now been accused and could face up to
five years in jail if convicted.  At one point it was stated that a video of the area would show conclusively who was driving, but the recording never appeared.

Pesantez reacted aggressively to the charges. He publicly threatened some of the legislators involved, and members of the Attorney General’s Office publicly supported him by means of a half page announcement in the capital’s major newspaper  ‘El Comercio’.  The publication was highly unethical and Pesantez denied any knowledge of it.  The President of the Association of Officials and Employees of the Attorney general’s office was also obliged to resign. However another member of the Association told the National Assembly  that the meeting of the Association that approved the payments for the publication was held with Pesantez’ authorisation.

The President himself was also keen to stop the case. He first suggested that if the assembleistas wanted to accuse Pesantez they should have the backbone to renounce their parliamentary immunity, and then publicly stated that for him the charges against the Attorney General lacked a solid basis. Pesantez was, he stated, a person he trusts and has known for years. It was a media show, he said, and a mistake to bring this type of political action when the Minister’s term was due up in a few months.

The result of the manoeuvring was a tied vote at the sub-committee charged with investigating the case and making a recommendation to the full Assembly. The terminal blow was the conversion of one of the committee members, Pamela Falconi who saw the light and changed her vote at the last minute, leading to a lack of majority. The President’s influence was rumoured to have been decisive. She denied it.

Constitutional Conflict

It could be said that openness is preferable to hypocrisy and that Correa’s public opposition was, if not ethical, at least not hypocritical. But these were not the only options. Staying out of the issue altogether would probably have been the wisest course of action. But the real questions here are not Correa’s interference in the process, or even Pesantez’ innocence or guilt, important as they may be. The fundamental issues are faith in the justice system, which has historically been close to zero, and the role and integrity of the National Assembly, whose approval rating, while generally slightly higher, has hardly been a point of pride for its members.

One of the Assembly’s constitutional responsibilities is to provide a check on Presidential authority, and one of the elements of this counterbalance is the power to question the probity of the executive’s ministers, and where necessary dismiss them from office.  There are obvious hurdles to overcome: complete separation of powers between Assembly and Executive is a virtual impossibility, especially in the case of a majority government. But the Assembly members do have an important role to play and, in a presidential system such as Ecuador’s, a public obligation to maintain a certain level of independence. One of their  tasks, and this applies above all to the members of the governing alliance, is to demonstrate that  the Assembly can be trusted to point out cases of corruption or abuse of power, even if these take place within their own or the executive’ s ranks, and even if, in the end, they turn out to be mistaken.

Given the constitutional obligation of the Assembly to prosecute, and the separation of the two powers, Presidential intervention represents a constitutional conflict. But in this particular case it represents something more: a clear attempt to control supposed ‘rebel  elements’ within the President’s own party. No doubt Rafael Correa is doing what most elected Presidents do in order to protect what he or she sees as the governing party’s interests. But that does not make it ethical. And it certainly does not make it revolutionary.

Doris Soliz, the Minister charged with Political Coordination between the Presidency and the Assembly has argued that no member of any political party is totally at liberty to do what they want – agreed – and that this is all about party ‘discipline’, something a lot harder to swallow. If ‘discipline’ means not exposing cases of possible corruption or influence peddling, whether or not they turn out to be certain, then we need to look for another word to describe what is going on.

Close your eyes and think of the nation

Whether Correa should or should not have publicly sided with Pesantez against the members of his own party is a matter of opinion, but a recent public survey indicated that sixty eight percent of those polled think it was ‘inopportune’. And while the Allianza Pais project is still worthwhile  – none of the governing assembleistas who tried, and failed, to have Pesantez removed has resigned from the party – the project has undoubtedly been weakened. This was an opportunity lost. No one believed in the justice system before the Pesantez business surfaced, and they still don’t. The same old politicking was once again in evidence. Here there has been no change. Here there has been no revolution.