Is Lasso’s cross death legal? An ex-judge says yes while legal experts say it’s a matter of opinion

May 18, 2023 | 54 comments

Almost all of President Guillermo Lasso’s political opponents are claiming his use of the muerte cruzada, or cross death, is illegal and the Constitutional Court has agreed to review the decree.

The Constitutional Court in Quito.

Lasso is basing his decision on one of three constitutional requirements for the cross death: that a “serious political crisis and internal upheaval” is occurring in the country.

Those objecting to the cross death, including former president Rafael Correa, indigenous leader Leonidas Iza and several members of the National Assembly, say there is no crisis and no upheaval and hence, the decree should not be allowed.

So who’s right?

According to a former president of the Constitutional Court, Lasso’s decision is fully legal and cannot be changed. “It is not possible for the court to intercede in the case or overturn the president’s order,” says Hernán Salgado. “Of the three justifications for the cross death, only the first is subject to the court’s review and this was not basis in this case.”

Salgado says the constitution respects the prerogative of the president to decide if conditions warrant the dismissal of the National Assembly and a call for new elections. “Political actors can claim the cross death is being improperly invoked, and it is certainly their right to express their feelings, but the order is strictly reserved for the president to decide.

The ex-judge said he would be “stunned” if the court overturns Lasso’s decree. “If this happens, I believe the president would be justified to ignore the ruling on the basis that it violates separation of state powers.”

According to constitutional lawyer Carlos Iglesias it is a matter of personal and political interests whether national conditions justify the cross death. “It’s a matter of opinion,” he says. “The constitution offers no guidance on the issue and simply lays out the reasons the cross can be invoked. If you look at the situation from the president’s viewpoint, it’s hard to argue that a crisis does not exist. He’s on trial, accused of embezzlement, and could be dismissed from office.”

On the other hand, says Iglesias, it can be argued that the cross death is being used by Lasso to avoid impeachment. “It’s a convenient way out of the trial, there is no doubt. He apparently decided the final vote in the Assembly would be very close and he decided not to risk a negative outcome.”

Iglesias says he can’t predict what the Constitutional Court will do. “The court was apparently reluctant to take up the president’s appeal of the legality of the National Assembly trial and I would assume it would be reluctant to address this case although it may hear arguments,” he said. “The issue of separation of government powers is very sensitive and the judges would probably prefer to avoid it.”

Political science scholar Arianna Tanca says earlier claims by Lasso’s opponents could be used against them in the Constitutional Court. “Before the court narrowed the Assembly’s impeachment trial to the charge of embezzlement, those promoting the trial justified it by saying the country was in a crisis and that the president was to blame. It could be argued that Lasso concurs.”

Tanca agrees with Iglesias that the Constitutional Court may be reluctant to take up the issue. “The constitution only lists the reasons the cross death can be decreed. Like other political arguments, there is no black and white answer to the legality, but it appears to be within a president’s rights.”

The Constitutional Court is expected to consider the case Thursday or Friday.

Lasso invoked the cross death early Wednesday morning, dismissing the National Assembly and ordering the National Elections Commission to organize new elections for the Assembly and the presidency.

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