Adwaldo Lins Peixoto Neto

It is not news that presidential impeachment often takes place in Latin America. With the attempt against Guillermo Lasso last week, 25 presidents have faced impeachment, one of the multiple presidential falls in the continent. However, Guillermo Lasso’s impeachment proceedings are the first case starring an unusual end due to the use of an institutional resource atypical in Presidentialism: a presidential prerogative of dissolving the assembly by decree and calling new elections to both legislative and executive. This decree was nicknamed muerte cruzada (crossed death), as new politicians would occupy both legislative and Presidential seats after the elections.

To understand better the use of this power by the Ecuadorian president, as its advantages and consequences, it is necessary to come back to the context of Lasso’s election and the social crisis, which triggered the political crisis which led to the temptation of his impeachment, and the use of the muerte cruzada as his last resource to remain in office.

Political context: Guillermo Lasso’s election and government so far

Guillermo Lasso (67) is a former banker and right-wing candidate who won the Ecuadorian presidential elections on April 11th, 2021, in fierce elections, getting 52,5% of the votes, defeating Arauz, a leftist candidate from correísmo, a political heir of former president Rafael Correa. However, once in office, Lasso’s government faced a series of problems centered on high public insecurity due to drug trafficking and inflation, which increased the cost of fuel in the Country. These circumstances led to a series of riots, leading the president to take measures to control the price of gasoline, which displeased his supporters, who accused him of populism.

The high level of violence leads the President to decree a state of emergency in 3 provinces (Guayas, Manabí e Esmeraldas), even authorizing civilians’ use of fire guns. Furthermore, the Safety Conseil of the Country proclaims the situation as terrorism and a threat to national security on March 27th, 2023.

This social instability strokes the Presidential popularity, and Lasso leads to disapproval by 85% of the voters.  Unable to manage this crisis effectively and revert the negative electoral public opinion, Lasso got vulnerable to the opposing coalition, which started to organize, waiting for the right moment to try the president’s removal.

The presidential impeachment and the use of the muerte cruzada

An impeachment resolution was supported by the opposing coalition in the Asamblea Nacional (National Assembly), alegging suspicion of crimes against public administration, peculation, and fund malversation. In Ecuador, the legislative is unicameral, so the Ecuadorian Constitution provides that the Constitutional Court gives an opinion about the legal grounds of the presidential impeachment resolution. Accordingly, on March 29th, the Ecuadorian Constitutional Court has ruled the impeachment resolution admissible, which was accepted by the Ecuadorian Assembly on May 17th, starting the presidential impeachment of Guillermo Lasso.

TheEcuadorian Assembly is composed of 137 congress members, and the constitution requires the vote of 92 of them (two-thirds of its members) to remove the president. However, on May 14th, Virgilio Saquicela, a congressman who integrated the political opposition, was reelected to the chief of the Assembly by 96 votes, four votes more than the required to remove the president, signalizing a possible conviction of Lasso in the impeachment trial, set to May 16th. From this moment, using the Presidential Decree of dissolution of the National Assembly and call for new elections became the best defense strategy. The muerte cruzada enters the radar.

Starting the trial, the president gave his testimony appealing to political stability due to the country’s history of consecutive presidential falls. However, after his defense, Lasso used the Presidential Decree of dissolution of the National Assembly, the Decree on 741, on May 17th, opposing the impeachment trial and finishing the members of Congress’s mandates.

The muerte cruzada is an institutional resource that was set in the Ecuadorian Constitution of 2008, provided in section 148, allowing the president to dissolve the assembly, in his/her opinion, in 3 cases:

1 – the National Assembly has taken up duties that do not pertain to it under the Constitution upon a prior favorable ruling by the Constitutional Court;

2 – if it repeatedly without justification obstructs the implementation of the National Development Plan;

3 – or because of a severe political crisis and domestic unrest.

This presidential prerogative can only be exercised once in the first three years of his/her term in office (in Ecuador, the presidential mandate is four years and allows only one reelection). The constitution also provides that, within seven days after the publication of the decree of dissolution, the National Electoral Council shall convene, for the same date, legislative and presidential elections for the rest of the respective terms of office.

The most interesting of this institutional mechanism is that the President dissolves the assembly. Still, he also decrees his left of office, the reason why this resource is called muerte cruzada: it’s a reciprocal death.  So, if the president also loses his mandate, why would he be interested in using the muerte cruzada?

Since the publication of the decree, the members of Congress’s mandates are finished, but the President remains in office for six months, as the country cannot stay without a head of state. Up until the installation of the National Assembly, the President of the Republic shall be able, upon a prior favorable ruling issued by the Constitution Court, to give decree-laws for urgent economic matters, which may be adopted or repealed by the next legislative body.

This situation allows the President to govern for six months without opposition or control. Even if the decrees depend on the Constitutional Court, this judicial organization has other attributions and may need to work on exercising the legislative competencies. During this period, the President concentrates more power, with less accountability, as the legislature is dissolved. It represents a high risk of autocracy.

In practice, the arm wrestling between these two powers evidences that, on one side, Ecuadorian members of Congress have committed suicide because they have lost their terms immediately. But, simultaneously, the President still has a six-month period to govern. The Presidential Decree no. 741 had its constitutionality argued by the opposing parties by judicial review (7). Still, the Constitutional Court confirmed its constitutionality, which keeps the legality of the elections that will take place soon.

Muerte cruzada between parliamentary and presidential system: institutional design troubles

As it was used for the first time on the Continent, the operation of this typical mechanism of the parliamentary system adapted to a presidential constitution without regular calibration reveals some problems. First, the Constitutional Court plays a role in the impeachment proceedings as a legal gatekeeper of its legitimacy. Hence, it becomes complicated to invoke his competence to review the constitutionality of any process step.

Secondly, once the legislative branch is not operating, the Constitutional Court may exercise some of its competencies. Still, others must be set in the Constitution and compatible with its judiciary nature. For example, in presidential constitutional designs, it is usually the competence of the legislative branch to account for or allow the absence of the President of the country. Nowadays, in Ecuador, the assembly is dissolved. President Guillermo Lasso informed the Constitutional Court of his intention to leave the country for personal reasons from May 24th to May 28th (Official letter n. T.71-SGJ-23-0135, May 22nd). Still, the court deferentially exposed it has no competence to take care of this decision.

Third, because the issuance of its decree was done suddenly – even though its possibility was known – the next elections will be distinguished from the regular ones. Generally, the candidates and the parties organize themselves to run with some advance, and the National Electoral Council has an electoral calendar organized, as elections are not an event that is easily accomplished. With this abrupt change on the horizon, all the organizations involved in the electoral process were taken by surprise and have lots of efforts to guarantee the regularity of the voting process. At the same time, the running of the likely candidates for the votes happens in a hurry.

Although political instability is not new in Ecuador or Latin America, this context is different from everything that has ever been seen in the region. The consequences of a President constitutionally allowed to govern by decree without a legislative branch to account for him, with a Constitutional Court still understanding which are its competencies while the new assembly is not set yet, is a situation to follow carefully, especially in a region where democracy and the strength of the institutions are still young.