High Court rules Noboa’s executive decrees violated the constitution, but the consequences are unclear

The Constitutional Court has declared unconstitutional two executive decrees issued by President Daniel Noboa. Decree 500, declared on January 7, named Cynthia Natalie Gellibert vice president. Decree 505, issued a week later, assigned presidential duties to Gellibert while Noboa campaigned for reelection.

The Constitutional Court in Quito.

Although the court made its decision January 23, it was not made public until Monday. The court offered no explanation for the delay.

According to the judges, the decision was based on Article 146 of the constitution which states that the vice president will assume presidential duties during a reelection campaign. On January 17, the Constitutional Court upheld a lower court ruling, dismissing a 150-day administrative suspension of Vice President Verónica Abad and upholding her status as vice president.

In its ruling, the court also claimed that Noboa was in error when he cited circumstances of force majeure in assigning duties to Gellibert.

Although decrees 500 and 505 have expired, the court said it was “empowered” to rule on them because they violated the constitution. “The decrees have a direct impact on the constitutional rules for replacing the president in the event of his or her temporary absence and have national repercussion and consequences that are both regulatory and administrative,” the court said.

It is unclear what impact the ruling will have on the election. “The court’s decision was narrow in scope, focusing on the constitutionality of the two decrees,” said Guayaquil law professor Gustavo Arias. “The court does not have the authority to penalize the president, and it did not offer an opinion on his candidacy for reelection.”

Arias said it is up to the Contentious Electoral Tribunal (TCE) or the National Assembly to consider sanctions. “Because we are less than a week away from the election, I do not anticipate any action by the TCE although this could come after the election,” he said. “On the other hand, if Noboa wins the election or is involved in a runoff, the TCE could decide not interfere in the people’s choice.”

According to Arias, the ruling leaves a “gray area” regarding the assignment of presidential duties to Gellibert. “In effect, the judges say he [Noboa] cannot delegate his duties by executive decree but what if he delegates them without a decree?”, Arias asks.

Constitutional lawyer André Benavides said the Constitutional Court had fulfilled its obligation in declaring the unconstitutionality of Noboa’s decrees. “The judges made it clear that the president overstepped his authority and is not allowed discretion in interpreting the constitution,” he said.

Like Arias, Benavides believes it is unlikely the TCE or the National Assembly will “definitively address” the court’s ruling before the election. “After the election, if Noboa is reelected, the issue could be taken up by the Assembly.”

In response to the court ruling, Government Minister José De La Gasca said Monday night that the administration accepts the decisions on decrees 500 and 505. “At the same time, the court has accepted decrees 494 and 512, which appointed Cynthia Gellibert vice president due to the temporary absence of Verónica Abad,” he said. “Those decrees do not challenge Abad’s status as vice president but explain her lack of availability.”

Presidential candidate Andrea González blasted the court for withholding its decision for almost two weeks. “It is outrageous the decision was not announced the day it was made,” she said. “Now, with the election just days away, it is probably too late for the TCE to act.”