Edited by: Tecnológico Superior
Corporativo Edwards Deming
January - March Vol. 6 - 1 - 2023
https://revista-edwardsdeming.com/index.php/es
e-ISSN: 2576-0971
Received: 09 January 2022
Approved: July 14, 2022
Page 9-18
The powers of the five functions of the state in
Ecuador
Las facultades de las cinco funciones del estado en el Ecuador
Marlon Astudillo Lindao*
Feliberto Fernando Guerra Cuenca
*
Xiomara Vaca Quiñonez
*
Oscar Alberto Gallardo Toapanta
*
ABSTRACT
The design of the functions of the State, within the
framework of the liberal regime characterized by political
representation, has been deeply criticized from a legal and
political perspective. However, since the current
Ecuadorian Constitution, there have been significant
changes in the institutional design, which have generated a
profound theoretical and normative discussion on the
validity of constitutional paradigms as old as the tripartition
of powers or the form of democracy. However, this
apparent dichotomy between types of democracy, in our
case representative and participatory, has not allowed us
to examine the progress and setbacks in the
implementation of democratic institutions in Ecuador. It is
therefore necessary to analyze within the constitutional
changes, the new Function of Transparency and Social
Control, especially the Council of Citizen Participation and
Social Control. Especially the power to appoint the highest
authorities of the State. At the end of this study, we will be
able to establish whether the new form of designation of
the highest authorities, together with the new institutional
scheme of the Ecuadorian State, become a contribution to
the consolidation of the democratic process in our
country. At the end of this study, we will be able to
* Universidad Técnica Estatal de Quevedo, Quevedo-Ecuador,
marlon.astudillo2016@uteq.edu.ec, https://orcid.org/0000-0002-6064-2617,
* Universidad Técnica Estatal de Quevedo, Master's Degree Program in Local
Development, Quevedo, Ecuador, fguerrac@uteq.edu.ec;
https://orcid.org/0000-0002-5967-2229
* Universidad Técnica Estatal de Quevedo, Quevedo-Ecuador,
xiomara.vaca2016@uteq.edu.ec, https://orcid.org/0000-0002-9692-2311,
* Universidad Técnica Estatal de Quevedo, Master's Program in Local
Development, Quevedo, Ecuador, ogallardo@uteq.edu.ec,
https://orcid.org/0000-0003-4110-339
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establish if the new form of designation of the highest
authorities, together with the new institutional scheme of
the Ecuadorian State, becomes a contribution to the
consolidation of the democratic process in our country.
Keywords: State, constitution, citizen participation,
politics
RESUMEN
El diseño de las funciones del Estado, en el marco del
régimen liberal caracterizado por la representación
política, ha sido profundamente criticado, desde una
perspectiva de índole jurídica y política. Sin embargo, a
partir de la vigente Constitución ecuatoriana se han
producido cambios significativos en el diseño institucional,
los cuales han generado una profunda discusión teórica y
normativa sobre la vigencia de paradigmas constitucionales
tan antiguos como la tripartición de poderes o la forma de
democracia. Sin embargo, esta aparente dicotomía entre
tipos de democracia, en nuestro caso la representativa y la
participativa, no ha permitido, examinar los avances,
retrocesos en la implementación de unas instituciones
democráticas en el Ecuador. Es por ello necesario analizar
dentro de los cambios constitucionales, a la nueva Función
de Transparencia y Control Social, en especial al Consejo
de Participación Ciudadana y Control Social. En especial la
facultad de designar a las máximas autoridades del Estado.
Finalizado el presente estudio, estaremos en la capacidad
de establecer si la nueva forma de designación de las
máximas autoridades, unida al novedoso esquema
institucional del Estado ecuatoriano se convierten en un
aporte a la consolidación del proceso democrático en
nuestro país. Finalizado el presente estudio, estaremos en
la capacidad de establecer si la nueva forma de designación
de las máximas autoridades, unida al novedoso esquema
institucional del Estado ecuatoriano se convierten en un
aporte a la consolidación del proceso democrático en
nuestro país.
Palabras clave: Estado, constitución, participación
ciudadana, política
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INTRODUCTION
The Ecuadorian Constituent Assembly's commitment to renew the state structure has
generated expectations, in an attempt to bring the state closer to society. However, this
search has not been exempt from controversy, which has been very little focused from
the academic point of view. For this reason, it is necessary to propose a theoretical and
normative review of the advances and setbacks of these changes of constitutional origin.
From the above, this research aims to analyze the functioning of the new institutional
scheme of the Ecuadorian State, from the establishment of five powers, instead of the
classic tripartition of powers, but from an approach of the models of democracy, all this
in line with the new form of appointment of authorities instituted in the current
Ecuadorian Constitution. To fulfill this objective, in the first chapter, we will begin with
a brief characterization of the model of representative democracy within which we will
analyze in particular aspects such as the separation of powers, as well as the system of
checks and balances including an approach to the model of democracy established in the
Ecuadorian Constitution of 1998. In the second part, we will study participatory
democracy trying to show its relationship with the crisis of representative democracy,
we will continue with a brief conceptualization of participatory democracy, then we will
formulate a reconstruction of the origins of the so-called Fifth Power, then we will
characterize the new institutional scheme of the Ecuadorian State, and finally we will
explain the system of checks and balances of the current Ecuadorian Constitution. In the
second chapter, first of all, we will make a brief conceptual approach to the Council of
Citizen Participation and Social Control, as well as to the system of designation of
authorities as a discrepant element between the 1998 and 2008 constitutions, we will
advance with a critical analysis from which we will elaborate a brief comparison of these
forms of designation of authorities, in order to establish both advantages and
disadvantages of these. With this, we will reach the conclusion of the thesis, which
ultimately consists of reviewing whether the current reality of the Ecuadorian
institutional scheme is or is not a contribution to the construction of a more democratic
Ecuadorian society, at least from a theoretical institutional perspective.
MATERIALS AND METHODS
When reviewing various methodologies and/or stages proposed by different authors in
the literature consulted on the subject, as is the case with (Melo, 2010) who applies an
organizational analysis methodology that integrates a knowledge management model
oriented to bpm, and to the improvement of business processes at all levels of the
organization dedicated to the management of exceptional cargo transportation. In
another study (Roalcaba, 2008) 1. Identify the risk, classify it and incorporate it into the
database. 2. Search for causes. 3. Propose measures for change based on process
management. 4. Follow up. Most studies agree that a process management and
improvement project consists of three phases: process analysis, process design and
process implementation; (Zaratiegui, 1999); (Amozarrain, 1999); (Rivera, 2002); (Trujillo
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Barroso, 2011); (Harrington, 1991).
RESULTS
Participatory democracy. But is participatory democracy so new? Actually, not so much,
as we have already discussed above, a direct and more participatory democracy was
developed before the representative one, and this became the option in the face of the
emergence of the Nation-State; however, it is different in terms of the new political
conditions that have been emerging. As an example and perhaps the most important,
that of the participants, although in ancient Greece equality for citizens was raised,
exclusion was the rule, so thousands of people were not considered as such, including
women, slaves, which restricted participation to a tiny number of those who lived at
that time. What, in our understanding, leads us to believe that for the existence of
participation it is necessary for society to intervene in the State in a deliberative way,
but also decisively in its management, accompanied by the other two parts, one focused
on the satisfaction of material goods and the other on the unrestricted respect for
human rights. Now, Chomsky also holds a similar concept of what is a democracy
beyond the formal, which he calls "meaningful democracy" Meaningful democracy
presupposes the ability of ordinary people to pool their limited resources, to form and
develop ideas and programs, to include them in the political agenda, and to act in support
of it. (BROJAS.CALDERON, 2018)In the absence of resources and organizational
structures that make this activity possible, democracy is limited to the option of choosing
between several candidates who represent the interests of one or another group that
has an independent power base, usually located in the private economy, At this point,
we can establish a simile with participatory democracy, At this point, we can establish a
simile with participatory democracy, with which it gives content to representative
democracy, establishing that if the individuals of a society cannot bring their points of
view and support them in the state structure, the only thing left is a formality of
democracy, basically expressed in the elections of this or that candidate, who even
already has a perspective from his or her economic class. An example of the
aforementioned, which is worth mentioning, and which is embodied as a normative
provision, is what refers to the incorporation of some mechanisms of direct democracy.
Our Constitution tells us that the participation of citizens in all matters of public interest
is a right to be exercised through the mechanisms of representative, direct and
community democracy (Art. 95 C.R.E).
What we are arriving at is that the problem, perhaps, is not solved simply in the
coexistence, but in the complementarity between representative democracy and
participatory democracy (B. Souza Santos, 2004: 68-70). de Souza Santos, 2004: 68-70),
clearly understanding that we must continue in the search for new forms of integration
and greater incorporation of new social actors, with which we can strengthen, over time,
a maximalist perspective of democracy, for which we can turn to generate new ideas on
the strengthening of participatory democracy74 , and thus be able to build experiences
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that can invigorate democracy, both from the social actors and from the State; a problem
that we will address with the new institutional framework in the framework of
participatory democracy. It is clear, then, that these bodies try to break with this
inequitable and rights-violating State, understood as the paradigm of the liberal and
neoliberal State, of course, without denying that in the constitutional State these rights
cannot be violated, but with a clear connotation of a greater weight of the role of
regulation of the State public power to the Law; therefore, much more guaranteeing and
respectful of rights than in the previous Liberal State. It is for this reason that the struggle
of the social movements and the Ecuadorian citizenry, since the mid-1990s, inevitably
ended in a new Constitution, thus betting on the construction of participatory
democracy, together with a new institutional framework that is in line with this new
model. Boaventura de Souza, in this sense, argues that: "Social movements would be
inserted in movements for the expansion of the political, for the transformation of
dominant practices, for the increase of citizenship and for the insertion of excluded
social actors in politics. We can see in the constitutional text several important issues;
in the first place, it is identified as an independent body that assumes a task on behalf of
the citizenry to activate social control over state powers, without assuming that this
commission fulfills the functions of the Prosecutor's Office or the Comptroller's Office.
Secondly, this body was supposed to fulfill its functions in representation of the citizenry
in the fight against corruption, with which we can see that it is a commission that at least
in its constitutional structure is declared to derive from representation. Thirdly, it is
given the power to request information from any official, the CCCC had to bring its
findings to the attention of the Public Ministry or the Prosecutor's Office. (BORJA, 2012)
DISCUSSION
Democratic procedures, in the capitalist system, should have allowed the realization of
the essential component of liberal democracy: the protection of the people from
tyranny, and, in the long term, the establishment of the power of the people. In this
sense, we emphasize that representative democracy, for its implementation,
contemplated several procedures aimed at restricting the possibility of abuse of power,
among them the separation of powers. The theory of the division of the three powers
is the most widespread, however, over the years, it has begun to be left behind because
it is a concept that transcended beyond its historical version. Therefore, there is no
patented model, we cannot assume it as a dogma, but it can be configured in different
ways, which will depend on the political, economic, historical conditions of a particular
State. Of course, the model of the three powers carries, consubstantially, the system of
checks and balances with which it has been tried to control the power from the power,
with the aim of reaching a balance of the different components of society. Here a
question arises: Was it feasible to guarantee that each branch of power effectively
represented a different part of society? The answer is negative, because, instead of
obtaining control of power, at least in the Ecuadorian case, the ambition of particular
groups (minority) and the lack of control of power ended up being consummated,
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allowing the emergence of these imbalances that triggered in Ecuador from the struggle
of powers to the assimilation of these in the hands of a single one. Although
representative democracy was defined to represent the different groups of society and,
to a certain extent, it succeeded in the beginning, this representation has been
narrowing, with an institutional framework that has fallen short to be the transmission
belt of society's need for participation before the State. The institutional framework has
not been able to regenerate itself to bring the State closer to the citizens, which has
generated a rupture that has been directed towards the irruption of a political and
academic current that does not believe in representation as the only way to exercise
their rights. Rather, it proposes greater control from the citizens towards the state
powers, with which it is necessary to forge a new institutionality that allows to gather
that participation. Undoubtedly, it is here that the so-called new Latin American
constitutionalism brings a significant amount of contributions to the democratization of
our societies, seeking to overcome the crisis of representative democracy. We can say
that the representative system was born promising us something that today it is not in
a position to fulfill, that is, to accommodate all sectors. This has not been assimilated by
representative democracy, due to its incompatibility, both theoretically and practically,
with the inclusion of new and broad sectors of the citizenry in state participation. It is
here that this new type of organizations and social movements seek recognition, but at
the same time carry out a social control in the face of the incapacity of the organs called
to do so, and they do so from a civic and not a purely corporatist point of view. In this
sense, the political problem would be solved in the complementarity between
representative democracy and participatory democracy, with the clear understanding
that the search for new forms of integration and greater incorporation of new social
actors must continue, in order to strengthen a maximalist perspective of democracy.
Although it is possible to speak of the first attempt to institutionalize a fourth power, be
it electoral power or citizen power, in the 19th century by the hand of Bolivar. It is in
the 20th century, with that inspiration, that the new state functions were built in
Venezuela and Ecuador, different, but from a common trunk, which for us is the Function
of Transparency and Social Control. We could see that the Constitution of 1998 started
from a rhetorical vision of participation, and we landed in a Constitution of 2008, which
tried to reflect the potential of participatory democracy, both from the hand of
progressive political sectors, as well as from the social movements and, of course, from
the "participationist" and "republican" intellectuals who contributed in its construction.
Therefore, we can denote that this change of institutional paradigm was seen by the
constituent as a means to achieve citizen participation as the axis of the new
Constitution, with which it is proposed to build, from the State, an organization that can
move those gears that allow us to make this leap; in this framework the CPCCS was
born. However, we should not make the mistake of converting participatory democracy
into the panacea for the solution of problems between society and the State, this should
be considered as a path that is being built in different places and at different times; which
is also plagued with vicissitudes. In this context, we highlight four aspects: the first is that
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in the face of the crisis of representative democracy in Latin America and in Ecuador in
particular, there was an increase in political participation through which the citizenry felt
part of the decision-making process, which in the end the limits of representation could
not find the way to digest these expressions. Secondly, this resulted in processes of
struggle that formed political projects, which embodied, in the new constitutions, the
idea of a revitalizing force of representative democracy in complementarity with
participatory democracy. Thirdly, this new democracy under construction bursts with
the formation of a new institutional framework, in which the Transparency and Social
Control Function plays a preponderant role, but more than the function itself, it is the
Council of Citizen Participation and Social Control. Fourthly, it should be noted that, in
the participatory model established in the 2008 Constitution, the State ends up assuming
an active role. It is worth emphasizing two dangers or warnings of this model established
in the Constitution, the first one is to encourage today more than ever the need to
strengthen a system of checks and balances that is adequate for the new institutional
scheme of five powers, because without an adequate apparatus of controls, the primacy
of one or some of these powers over the others is propitiated, especially this danger in
the current system is related to the presence of a very strong Executive. Moreover,
since the Executive has to designate the authorities among its functions, the presidential
model prevails, which may generate an imbalance of state powers, generating a crisis a
posteriori. The second danger is that the active role of the State as a generator of citizen
participation may end up inhibiting grassroots participation or, in the worst case, may
co-opt it196 politically for its use and social legitimization. Finally, given the complexity
of the new social actors, the new political moment demands that we move from this
constitutional imaginary to generate proposals that take us beyond participatory
democracy, that is, to radicalize democracy. This will only be possible if we manage to
combine the Constitution with democracy in its broadest sense; for this, it is of utmost
importance that the Law, as Cárcova tells us, being in the hands of those from below,
can be an instrument of social change, and not continue to be an instrument of
conservation of the establishment, this through the possibility of a construction of
democracy from below, from the citizens. We agree with Carcova, when pointing out
that the Law, therefore, the Constitution and other infra-constitutional norms must have
the objective of generating processes of change, but not be an impediment to it, and
become the cancer guard of the status quo. The new regime of participation established
in the Constitution comes from a sort of experiment of the constituent based on social
demands and fundamentally on the need to complement and expand the representative
democracy that was in crisis, with the decision of the Ecuadorian constituent to expand
the margins of citizen participation, but concretizing this aspiration from the state level
with a bold importance of the implementation of this new constitutional normative
framework.
In this undoubtedly novel institutional scheme, the role of the Transparency and Social
Control Function stands out, an institution created by the Ecuadorian constituent in the
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search for building citizen power in the discourse, but which in the end opted more for
state intervention as an actor that leads citizen participation, in the search for
strengthening state institutions.
We conclude that the survival of a mixed model of democracy in the Ecuadorian
constitution allows the coexistence of representative democracy, participatory
democracy and even community democracy, which does not mean that they are built in
a civic way from below, but rather from the increasingly preponderant effort of the
State, as a transversal axis to recover for it, the spaces lost in the liberal and neoliberal
tradition of recent years. Likewise, this functioning of citizen participation from the state
has put it in serious dangers, since, as we have seen, it is prone to political co-optation,
intensifying these dangers the role played by the State as leader of the processes of
participation, thus limiting the role of the citizen. The problem of the control of power
must come from better and qualified mechanisms that allow the functions of the State
to control each other, as a form of institutional control of the institutionality itself, in
order to avoid a crisis of legitimacy that could lead to a new democratic crisis.
We verify that, in terms of design, the CPCCS becomes an institutional guarantee that
allows to ensure the enforcement of the rights of participation, understanding that this
should be its main role, however, its increasingly intense role in the appointment of
authorities as we see is leaving aside the other constitutional powers, especially that of
ensuring the validity and respect that citizens have to exercise their rights to participate
in the state. 6. The form of election of the highest authorities of the country, we have
seen is developed in a double mixed system that on the one hand links participation and
meritocracy, but on the other hand intertwines citizen participation with state
participation, this due as a characteristic of the model itself. Understanding that this
mixed system is increasingly supported by state institutions.
It is worth emphasizing that the current form of designation of authorities has the
viability to potentially extend the margins of citizen participation and deliberation, in
contrast to the forms of the liberal representative model that contemplated forms of
designation that, although they had a deliberative margin, were elitist and partisan. In
addition, it is important to emphasize that in the current competitions there are phases
of opposition, merits and citizen challenge, which accentuate the possibility of having the
best citizens as the highest authorities, contrary to what happened in the previous forms
of appointment that did not guarantee these aspects, but the election was the result of
the parliamentary game.
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