The intervention of the Constitutional Court in the procedures of amending, reforming, and changing the Constitution

Abstract

The Ecuadorian Constitution designs a novel system for the reform of its text. Unlike other models, Ecuador's Constitution provides for two mechanisms for exercising the power of constitutional reform: the amendment and the partial reform. These mechanisms differ from each other not only in terms of their procedure but mainly in the magnitude and depth of the modification that they allow in constitutional provisions. Likewise, the Supreme Norm develops the so-called “pre-constituent power”, which consists of the regulation that guides a new democratic legitimacy that seeks to exercise the original constituent power and thus replace the Constitution. In this system, the Constitutional Court assumes a fundamental role through three mechanisms: i. The decision of procedure; ii. The decision regarding the constitutionality of the call for a referendum; and, iii. The subsequent constitutional control. The moments in which the Court exercises some of these powers, as well as their scope, have not been treated uniformly in the Constitutional Court's jurisprudence. On the contrary, the current members of the Magistracy have departed from interpretations made by previous compositions of the Court and have established new guidelines in these matters. The jurisprudential changes are frequent and natural in the High Courts, which prompts the necessity to analyze in detail the reasons that motivated them, especially if they deal with fundamental aspects of the constitutional regime.