15
spurious Court, thus violating the terms of Art. 202 of the Constitution of the Republic, and
that is the case of the 30 jurists who have accepted those illegal and unconstitutional
appointments and who have taken office. 40
59.
The applicants then requested that the Pichincha Bar Association prosecute those
lawyers and punish them by suspending their exercise of the profession. 41
60.
On March 29, 2005, the Court of Honor of the Pichincha Bar Association stated that
“although (…) it is not competent to assess and judge the legislative actions of the National
Congress, in order to determine the existence or otherwise of the alleged violations we must
analyze whether the legislative branch was legally empowered to terminate the APPLICANTS and to
appoint, by means of a resolution, the RESPONDENTS as justices of the Supreme Court.”42 On this
point, it found that:
Following a thorough legal analysis of the constitutional provision and of the documents in the
proceedings, pursuant to Article 273 of the Constitution and after due study of it, there is no
legal provision that empowers the National Congress to dismiss or terminate the functions of
the Supreme Court justices and much less to appoint new justices.
(…)
The Constitution itself, in Articles 198, 201, and 202, sets out with absolute clarity the
requirements, duration, termination, and method of election of the justices of the Supreme
Court of Ecuador.
According to the Constitution, the justices of the Supreme Court are not subject to fixed
terms of office and may only be terminated for the reasons set out therein. Vacancies are to
be covered by means of COOPTATION, for which the criteria of professionalism and the
judicial career will be observed, in accordance with law.
To dismiss the serving Supreme Court justices, the 51 legislators invoked their interpretation
of Transitory Article 25 of the Constitution, including them among the public officials
appointed by Congress for a fixed term and arguing that they were elected by Congress in
1997 for a period of four years, pursuant to Article 173 of the Organic Law of the Judicial
Branch and, consequently, were serving under an expired mandate.
That interpretation of the Transitory Provision was not in line with Article 284 of the
Constitution, which provides that should doubt arise regarding the scope of a constitutional
provision, Congress may offer an obligatory interpretation, following the same procedure as
used to enact a law: in other words, with the assent of two-thirds of the total congressional
membership (67 deputies). This interpretation was made with the assent of 51 legislators.
In addition, Article 69 of the Organic Law of the Legislative Branch stipulates: ‘The name
“resolutions” shall be given to decisions that represent regulated actions and that regulate
procedural matters.’ Resolution No 25-181, whereby the APPLICANTS were terminated and
the RESPONDENTS were appointed as justices of the Supreme Court, modifies and
extinguishes rights – functions for which a law is required.
40
Annex 18. Resolution of the Court of Honor of the Pichincha Bar Association, dated March 29, 2005. (Annex to the petitioners’
submission, presented at the hearing held before the IACHR on March 13, 2006.)
41
Annex 18. Resolution of the Court of Honor of the Pichincha Bar Association, dated March 29, 2005. (Annex to the petitioners’
submission, presented at the hearing held before the IACHR on March 13, 2006.)
42
Annex 18. Resolution of the Court of Honor of the Pichincha Bar Association, dated March 29, 2005. (Annex to the petitioners’
submission, presented at the hearing held before the IACHR on March 13, 2006.)