The law provides for criminal and administrative sanctions for the arbitrary detention that takes place as the result of the excessive use of the police force, in their abusive application or interpretation of the penalties or other regulations or for reasons of discrimination. For disciplinary arrests of members of the Armed Forces and the National Police Force, the provisions of the law shall be applied.
The victims of criminal offenses shall benefit from special protection; guarantees shall be provided to them for preventing their revictimization, especially in obtaining and assessing the evidence; and they shall be protected against any threat or other forms of intimidation. Mechanisms shall be adopted for integral reparation, which shall include, without delay, knowledge about the truth of the facts and restitution, compensation, rehabilitation, guarantee of nonrepetition, and satisfaction with respect to the infringed right.
A system for the protection of and assistance to victims, witnesses, and participants in the proceedings shall be established. In no case shall extradition of an Ecuadorian be granted. Trial of said Ecuadorian shall be subject to the laws of Ecuador. Proceedings and punishment for the crimes of genocide, crimes to humanity, war crimes, forced disappearance of persons or crimes of aggression to a State shall not be subject to statutes of limitations.
None of the above-mentioned cases shall be liable to benefit from amnesty. The fact that one of these crimes might have been perpetrated by a subordinate shall not exempt the superior who ordered said crime or the subordinate who carried out the order from criminal liability.
The law shall establish special and expeditious procedures for bringing to trial and punishing the crimes of domestic violence, sexual offenses, crimes of hate and crimes perpetrated against children, adolescents, young people, persons with disabilities, elderly persons and persons who, because of their specific characteristics, require greater protection. Specialized prosecutors and defense attorneys shall be appointed for dealing with these cases, in accordance with the law.
The right to legal security is based on respect for the Constitution and the existence of prior legal regulations that are clear, public and applied by the competent authorities. Ecuadorians have the following duties and obligations, without detriment to others provided for by the Constitution or by law: 1. To abide by and enforce the Constitution, the law and the legitimate decisions taken by the competent authority.
Ama killa, ama llulla, ama shwa. To not be lazy, not lie, not steal. To defend the territorial integrity of Ecuador and its natural resources. To cooperate in keeping the peace and safety. To respect human rights and to fight for their enforcement. To respect the rights of nature, preserve a healthy environment and use natural resources rationally, sustainably and durably.
To promote public welfare and give precedence to general interests over individual interests, in line with the good way of living. To administer public assets with honesty and in true compliance with the law and to report and combat acts of corruption. To practice justice and solidarity in the exercise of their rights and the enjoyment of goods and services.
To promote unity and equality in diversity and in intercultural relationships. To take on public office as a service to the community and to be accountable to society and authority, in accordance with the law.
To respect and recognize ethnic, national, social, generational, and gender differences and sexual orientation and identity. To cooperate with the State and community in social security and to pay taxes levied by law. This duty is a joint responsibility of mothers and fathers, in equal proportion, and shall also be applicable to children when their own mothers and fathers need them.
The National Assembly and all bodies with legal and regulatory authority shall be obligated to adjust, formally and materially, the laws and other legal standards related to the rights provided for in the Constitution and international treaties and those that are needed to guarantee the dignity of human beings or communities, peoples and nations.
In no case shall amending the Constitution, laws, other legal and regulatory frameworks or actions by the government endanger the rights recognized by the Constitution. The drafting, enforcement, evaluation and monitoring of public policies and public services that guarantee the rights enshrined in the Constitution shall be governed by the following provisions: 1.
Public policies and the provision of public goods and services shall be aimed at enforcing the good way of living and all rights and shall be drawn up on the basis of the principle of solidarity. Without detriment to the prevalence of public welfare over individual well-being, when the impacts of the implementation of public policies or the provision of public goods and services undermine or threaten to undermine constitutional rights, the policy or provision must be reformulated or alternative measures shall be adopted to reconcile the conflicting rights.
The State shall guarantee the equitable and mutually supportive allocation of the budget for the implementation of public policies and the provision of public goods and services. In the drafting, implementation, evaluation and monitoring of public policies and public services, the participation of persons, communities, peoples and nations shall be guaranteed. Jurisdictional guarantees shall be governed, as a rule, by the following provisions: 1.
Any person, group of persons, community, people or nation will be able to propose actions envisaged in the Constitution. The judge with jurisdiction in the place where the deed or omission originated or where its impacts were exerted shall be the competent authority and the following rules of procedures shall be applicable: a The procedure shall be simple, quick and efficient.
It shall be verbal in all of its stages and proceedings. Support of an attorney to file the action shall not be indispensable. Once the action has been submitted, the judge shall immediately convene a public hearing and at any time during the proceedings will be able to order the submittal of evidence and designate commissions to gather this evidence.
The claim alleged by the person filing the complaint shall be presumed to be true as long as the public institution that is called upon does not prove the contrary or does not provide information. The rulings of the first court can be appealed in a provincial court. Legal proceedings shall only be complete when the sentence or ruling has been fully enforced. If the sentence or ruling is not complied with by the public servants, the judge shall order their dismissal from their job or employment, without detriment to the civil or criminal liabilities that might be applicable.
When it is an individual who has failed to comply with the sentence or ruling, the liability set forth in the law shall come into force. All final judgments shall be referred to the Constitutional Court for their development in case law. Preventive measures can be ordered either jointly or independently of the constitutional actions for the protection of rights, for the purpose of avoiding or ceasing the violation or threat of violation of a right.
Protection proceedings shall be aimed at ensuring the direct and efficient safeguard of the rights enshrined in the Constitution and can be filed whenever there is a breach of constitutional rights as a result of deeds or omissions by any non-judiciary public authority against public policies when they involve removing the enjoyment or exercise of constitutional rights; and when the violation proceeds from a particular person, if the violation of the right causes severe damage, if it provides improper public services, if it acts by delegation or concession, or if the affected person is in a status of subordination, defenselessness or discrimination.
Habeas corpus proceedings are aimed at restoring the freedom of those who are being held illegally, arbitrarily or illegitimately by order of a public authority or any other persons, as well as to protect the life and bodily safety of persons in prison. Immediately after the proceedings are filed, the judge shall convene a hearing, which must be held within the following twenty-fours, where the warrant of arrest and imprisonment with the legal formalities and the justifications of fact and law that substantiate the measure must be presented.
The judge shall order the appearance of the imprisoned person, the authority in whose charge the imprisoned person has been committed, the court-appointed defense attorney and the person who had ordered or caused the imprisonment, depending on the case.
If necessary, the hearing shall be held in the place of detention. The judge shall rule within twenty-four hours after completion of the hearing. In the event of illegitimate or arbitrary detention, release from prison shall be ordered. The ruling ordering release from prison shall be complied with immediately.
If any kind of torture, inhumane, cruel or degrading treatment is confirmed, the order to release the victim, provide integral and specialized care, and provide measures that are alternative to imprisonment when applicable shall be issued. When the order for imprisonment has been issued in criminal proceedings, the appeal shall be made with the Provincial Court of Justice.
The petition for access to public information shall be aimed at guaranteeing access to this information, when this information has been denied expressly or tacitly or when the information provided is incomplete or not trustworthy.
It can be filed even if the denial to provide information is based on the secret, reserved, confidential nature of the information or any other classification. The reserved nature of the information must be stated prior to the petition by a competent authority and in accordance with the law. All persons, by their own rights or as legitimate representatives for this purpose, shall have the right to know of the existence of and gain access to documents, genetic data, personal data banks or files and reports about themselves or about their assets that appear in public or private entities, whether in hard copy or on electronic media.
Likewise, they shall have the right learn about the use made of this information, its end purpose, the origin and destination of the personal information and the time of validity of the data file or bank. The persons responsible for the data banks or files will be able to disseminate the filed information with the authorization of the holder or the law. The person owning the data will be able to request the person in charge to allow access free of charge to the file, as well as update of the data and their correction, deletion or annulment.
In the case of sensitive data, whose file must be authorized by law or by the person owning the information, the adoption of the security measures that are needed shall be required. If the petition is not duly answered, the person can resort to a judge. The affected person can file a complaint for damages caused. Proceedings for failure to comply shall be aimed at guaranteeing the application of rules and regulations comprising the legal system, as well as compliance with the rulings or reports of international human rights organizations, when the regulation or decision whose enforcement is being pursued contains an obligation to make it clear, express and enforceable.
The petition shall be filed with the Constitutional Court. The special proceedings for protection shall be admissible against those rulings or definitive judgments where there has been a violation, by deed or omission, of the rights enshrined in the Constitution, and they shall be filed with the Constitutional Court. This appeal shall be admissible when regular and special appeals have been exhausted within the legal framework, unless the failure to file these resources was not attributable to the negligence of the person bearing the constitutional right that was infringed.
Participation shall be governed by the principles of equality, autonomy, public deliberation, respect for differences, monitoring by the public, solidarity and interculturalism.
The participation of citizens in all matters of public interest is a right, which shall be exercised by means of mechanisms of representative, direct and community democracy. Organizations can be articulated at different levels to build up citizen power and its forms of expression; they must guarantee internal democracy, the rotation of power of their leaders, and accountability.
All organizations shall be able to develop alternative forms of dispute mediation and settlement, in those cases permitted by law; to act as delegates of the competent authority, with acceptance of due shared responsibility with this authority; to call for reparation of damages caused by public or private institutions; to draw up economic, political, environmental, social and cultural proposals and claims; and to propose other initiatives contributing to the good way of living.
Volunteer work for social action and development is recognized as a form of social participation. Individuals and communities shall be able to exercise the right to resist deeds or omissions by the public sector or natural persons or non-state legal entities that undermine or can undermine their constitutional rights or call for recognition of new rights. Citizen action shall be exercised individually or representing the community when a right is infringed and when it is threatened; it shall be submitted to a competent authority, in accordance with the law.
The exercise of this action shall not prevent other actions guaranteed by the Constitution and the law. At all levels of government, entities of participation shall be set up, comprised of elected authorities, representatives of the dependent regime, and representatives of the society of the territorial sphere of each level of government, which shall be governed by democratic principles.
Participation in these entities is aimed at: 1. Drafting national, local and sector plans and policies between governments and the citizenry. Improving the quality of public investment and drafting development agendas. Drawing up participatory budgets of governments.
Building up democracy with permanent mechanisms for transparency, accountability and social control. Promoting citizen training and fostering communication processes. To implement this participation, public hearings, oversight committees, assemblies, gross-roots lobbying, consultative councils, observatories and other entities that promote civic-mindedness shall be organized.
The sessions of decentralized autonomous governments shall be public and at these sessions there will be an empty seat that shall be held by a representative of the citizens, depending on the topics to be dealt with, for the purpose of participating in their debate and decision making.
Ecuadorians, including those residing abroad, whether individually or collectively, will be able to submit their proposals and projects at all levels of government, through the mechanisms provided for in the Constitution and by law. Grass-roots legal and regulatory initiatives shall be exercised to propose the creation, amendment or repeal of legal regulations to the Legislative Branch of Government or any other body that has a regulatory jurisdiction.
It must benefit from the backing of a number accounting for no less than zero point twenty-five percent 0. Those who propose a grass-roots initiative shall participate, by means of their representatives, in discussing the project in the corresponding body, which shall have a term of one-hundred eighty days to review the proposal; if the proposal is not reviewed within those time-limits, it will enter into force. When it involves a bill, the President of the Republic shall be able amend the bill but not to veto it completely.
While one grass-roots proposal to amend the Constitution is being processed, no other can be submitted at the same time.
The corresponding electoral body shall convene a referendum as ordered by the President of the Republic, the supreme authority of decentralized autonomous governments or citizen initiative. Decentralized autonomous governments, on the basis of a decision taken by three fourths of their members, can request that a referendum be convened on issues of interest for their jurisdiction.
Citizens will be able to request the call for a referendum on any matter. In all cases, a previous ruling by the Constitutional Court on the constitutionality of the proposed questions shall be required.
All persons, in the exercise of their political rights, will be able to recall elected authorities. The request for recall can be submitted after the first year and before the last year of the term of office for which the challenged authority was elected. The National Electoral Council, once it is apprised of the decision taken by the President of the Republic or the decentralized autonomous governments or accepts the petition requested by the citizenry, shall within fifteen 15 days call for a referendum, plebiscite or recall motion to dismiss , which then must be held in the ensuing sixty 60 days.
For the adoption of a matter proposed for referendum, plebiscite or recall, an absolute majority of valid votes shall be required, except for a referendum to recall the President of the Republic, in which case the absolute majority of voters is required.
In the case of recall, the challenged authority shall be removed from office and shall be replaced by whoever is stipulated by the Constitution. For the expenditures required to hold the elections that are convened by order of decentralized autonomous governments, they shall be charged to the budget of the corresponding level of government; those that are convened by order of the President of the Republic or at the request of the citizenry shall be charged to the General Budget of the State.
Political parties and movements are non-State public organizations, which constitute the expressions of political plurality of the people and are sustained by philosophical, political, ideological, inclusive and nondiscriminatory concepts.
Their organization, structure and functioning shall be democratic and shall guarantee rotation of power, accountability, and parity membership between women and men on their governing boards. They shall choose their board members and candidates by means of internal electoral processes or primaries.
Political parties shall be national in nature, shall be governed by their principles and bylaws, shall propose a government platform and shall keep a record of their members.
Political movements may pertain to any level of government or the district of Ecuadorians living abroad. The law shall set the requirements and conditions for the democratic organization, permanence and actions of political movements, as well as incentives for them to forge alliances.
Political parties must submit their statement of ideological principles, government platform setting forth the basic actions they propose to carry out, bylaws, symbols, emblems, logos, list of governing board members. The registry of members cannot have a number accounting for less than one point five percent 1. Political movements must submit a statement of principles, government platform, symbols, acronyms, emblems, logos and registry of members or followers, with a number accounting for no less than one point five percent 1.
Political parties and movements shall be funded by membership dues paid by their members and followers, and as long as they meet the requirements stipulated by law, the political parties shall receive State allocations subject to monitoring. The right of political parties and movements registered in the National Electoral Council to political opposition at all levels of government is recognized. The political parties and movements or their alliances may submit militants, sympathizers or unaffiliated persons as candidates for general election.
Political movements shall require the backing of persons registered in the voter registration list of the corresponding jurisdiction by a number accounting for no less than one point five percent 1. When requesting registration, those who are submitting their candidacy shall submit their government platform or proposals. The following cannot be candidates to an election by universal suffrage: 1. Those who, when registering their candidacy, have a contract with the State, as natural persons or as representatives or proxies of legal entities, when the contract was entered into for the implementation of a public work, provision of public service or production of natural resources.
Those have been convicted and sentenced for crimes punishable by long-term imprisonment or for bribery, illicit enrichment or embezzlement. Those who owe alimony payments. The judges of the Judicial Branch of Government, the Electoral Dispute Settlement Court and the members of the Constitutional Court and the National Electoral Council, unless they have resigned from office six months before the date set for the election. Members of the foreign service who hold a position abroad cannot be candidates representing Ecuadorians abroad unless they have resigned from their position six months before the date set for the election.
Public servants whose appointment and recall are discretionary and those who have fixed-term contracts, unless they have resigned prior to the date of registration of their candidacy. The other public servants and teachers can submit their candidacy and shall enjoy a leave of absence without salary from the date of registration of their candidacies up to the date following the election, and if they are elected while they hold office. Performance of their duties by those who are elected to parish boards shall not be incompatible with the performance of their duties as public servants or teachers.
Those who have exercised executive authority in de facto governments. The authorities elected by the people can be reelected only once, whether consecutively or not, to the same office. The authorities elected by the people who submit their candidates for a different office shall resign from the one they are currently holding.
The State, through the media, shall guarantee, in an equitable and egalitarian fashion, promotion of the election fostering debate and dissemination of the program platforms of all the candidates. Political subjects cannot hire advertising in the media and on billboards.
The use of State resources and infrastructure, as well as government publicity, at all levels of government for the electoral campaign, is forbidden. The law shall set sanctions for those who fail to comply with these provisions and shall determine the limit and control mechanisms for political solicitation and campaign spending.
For multi-person elections, the law shall establish an electoral system in line with the principles of proportionality, equality of vote, equity, parity and rotation of power between women and men and shall determine the voting precincts inside and outside the country.
If a provision is declared unconstitutional and this affects the normal development of the electoral process, the National Electoral Council shall propose to the Legislative Branch of Government a bill so that the Legislature can review it within no fewer than thirty 30 days ; if it is not dealt with, it shall come into force by law.
The Legislative Branch of Government is exercised by the National Assembly, which is comprised of Assembly persons elected for a four-year term of office.
The National Assembly is comprised one single house of representatives and shall have its seat in Quito. The National Assembly shall be comprised of: 1. Fifteen 15 Assembly persons elected as representatives of the nation as a whole national district. Two 2 Assembly persons elected for each province, plus one 1 additional Assembly person for every two hundred thousand , inhabitants or fraction thereof over one hundred fifty thousand , , on the basis of the last national population census.
The law shall determine the election of Assembly persons representing regions, metropolitan districts, and the district representing Ecuadorians living abroad. The National Assembly shall have the following attributions and duties, in addition to those provided for by law: 1. To swear into office the President and Vice-President of the Republic when the National Electoral Council has declared that they have won the election. The swearing-in ceremony shall take place on the 24th of May of the year they were elected.
To be apprised of the annual reports that must be submitted by the President of the Republic and issue views regarding them. To expedite, codify, reform and repeal laws and interpret them, with a generally mandatory nature. To create, amend or eliminate taxes by means of the law, without detriment to the attributions granted to decentralized autonomous governments.
To audit the activities of the Executive, Electoral, and Transparency and Social Control Branches of Government and other bodies of the public sector and to request public servants to provide the information that it deems necessary. To authorize, on the basis of a vote of two thirds of its members, the criminal impeachment of the President or Vice-President of the Republic when the competent authority so requests it on substantive grounds.
To adopt the General Budget of the State, in which the limits of government indebtedness shall be stipulated, and monitor its implementation. To grant amnesty for public crimes and pardons for humanitarian reasons, with the favorable vote of two thirds of its members. The above shall not be granted for crimes perpetrated against public administration or for genocide, torture, forced disappearance of persons, kidnapping, or homicide on political or moral grounds.
The National Assembly shall elect a President and two Vice-Presidents from among its members, for a two-year term of office, and they can be reelected. The Vice-Presidents shall hold, in order, the office of the President in the event of temporary or definitive absence or resignation from office of the President of the National Assembly.
The National Assembly shall fill the vacancies when required and for the time remaining to complete the terms of office. The supreme body of the legislative administration shall be comprised of those who hold the office of President and the office of the two Vice-Presidents and of four members elected by the National Assembly from among the Assembly persons belonging to different legislative groups.
The National Assembly shall be installed in Quito, without the need to issue a call to meeting, on the fourteenth of May of the year of its election. The plenary shall be held regularly and permanently, with two fifteen-day recesses every year. The sessions of the National Assembly shall be public, barring those exceptions provided for by the law. During recess, the President of the National Assembly, as such, at the request of the majority of the members of the Assembly or of the President of the Republic, shall convene special sessions to deal exclusively with the specific matters indicated in the call to meeting.
The political parties or movements that do not manage to account for the above-mentioned percentage will be able to join with others for the purpose of forming a legislative group.
To fulfill its attributions, the National Assembly shall set up permanent specialized committees, in which all of its members shall participate. The law shall determine the number, establishment, and competencies of each one. To carry out its work, the National Assembly shall be governed by the corresponding law and its internal regulations.
To amend or codify this law, an absolute majority of the members of the Assembly shall be required. The Assembly persons shall perform a public duty at the service of the country; they shall act for the general welfare of the nation; they shall be held politically liable by society for their deeds or omissions in the performance of their duties and attributions; and they shall be obliged to render accounts to their constituents.
Assembly persons shall not be able: 1. To hold any other public or private office or perform their professional activities if the latter are incompatible with their office, except for teaching at university as long as their schedule allows them.
To provide, process, receive or administer resources of the General Budget of the State, except those earmarked for the functioning of the administrative budget of the National Assembly. To process appointments to public office. To collect allowances and other income from public funds that do not pertain to their duty as Assembly persons. To accept appointments, delegations, commissions or representations that are paid from other State duties.
To be a member of the governing boards of other associated bodies of institutions or companies in which the State has a share. To enter into contracts with entities of the public sector. Whoever fails to observe one of these prohibitions shall forfeit the status of Assembly person, in addition to being held liable by law for this failure. Assembly persons shall enjoy parliamentary immunity from legal proceedings by the National Court of Justice during the performance of their duties; they shall not be held civilly or criminally liable either for the opinions they give or for the decisions or actions they carry out in the performance of their duties, inside or outside the National Assembly.
To file criminal proceedings against an Assembly person, prior authorization from the National Assembly shall be required, except in those cases that are not related to the performance of their duties.
If the petition filed by the competent judge requesting authorization for trial proceedings is not answered within a term of thirty 30 days, it shall be construed as granted. During the periods of recess, the time-limits indicated above shall be suspended.
Assembly persons can only be arrested and imprisoned in case of a felony or final judgment of conviction. Criminal proceedings that had been filed prior to the swearing into office shall continue to be processed by the judge in charge of the hearing the case. The National Assembly shall be able to proceed with the impeachment of the President or Vice-President of the Republic at the request of at least one third of its members, in the following cases: 1.
For crimes against the security of the State. For crimes of extortion, bribery, embezzlement or illicit enrichment. For crimes of genocide, torture, forced disappearance of persons, kidnapping or homicide on political or moral grounds.
To file impeachment proceedings, a ruling of admissibility by the Constitutional Court shall be required, but prior criminal proceedings shall not be required.
To proceed with censure and removal from office, a favorable vote of two thirds of the members of the National Assembly shall be required. If the censure leads to grounds for suspicion of criminal liability, a decision shall be taken to refer the matter for investigation by the competent judge. The National Assembly shall be able to remove the President of the Republic from office in the following cases: 1. For severe political crisis or internal unrest. To proceed with the removal from office, the favorable vote of two thirds of the members of the National Assembly shall be required.
If the motion to remove the President from office is adopted, the Vice-President shall take over the Office of the President of the Republic. This power can only be exercised once during the legislative period, during the first three years of office. Within seven days at the most after publication of the ruling to remove the President from office, the National Electoral Council shall convene for a same date legislative and presidential elections ahead of time for the rest of the respective terms of office.
Installation of the National Assembly and the swearing in of the President-elect shall take place in accordance with the provisions of the Constitution, on the date set by the National Electoral Council. To proceed with their censure and removal from office, the favorable vote of the absolute majority of the members of the National Assembly shall be required, except for Ministers of State and members of the Electoral Branch of Government and the Judiciary Council, in which case two thirds shall be required.
Censure shall lead to the immediate removal of the authority from office. If the reasons for the censure lead to grounds for suspicion of criminal liability, the decision shall be taken to refer the matter for investigation by the competent authority. The National Assembly shall adopt laws as general norms for the general welfare.
The attributions of the National Assembly that do not require the enactment of a law are exercised by means of agreements or resolutions. A law shall be required in the following cases: 1.
Regulating the exercise of constitutional rights and guarantees. Providing for the criminal categorization of infringements and providing for the corresponding sanctions.
Levying, amending or eliminating taxes, without detriment to the attributions that the Constitution grants to decentralized autonomous governments. Attributing duties, responsibilities, and competencies to decentralized autonomous governments. Amending the political and administrative division of the country, except with respect to parishes. Granting public monitoring and regulatory bodies the power to issue standards of a general nature in matters pertaining to their competence, without being able to alter or innovate legal provisions.
Laws shall be organic and regular. The following shall be organic laws: 1. Those governing the organization and functioning of the institutions established by the Constitution.
Those governing the exercise of constitutional rights and guarantees. Those governing the organization, competencies, powers, and functioning of decentralized autonomous governments. Those related to the system governing political parties and the electoral system. The issuance, reform, repeal and interpretation, of a generally mandatory nature, of organic laws shall require an absolute majority of the members of the National Assembly.
The initiative to submit bills pertains: 1. To the President of the Republic. To the other branches of the State in the framework of their jurisdiction. To the citizens who are in possession of their political rights and the social organizations that benefit from the support of at least zero point twenty-five percent 0.
Those who submit bills in accordance with the present provisions will be able to participate in their discussion, either personally or by means of their delegates.
Bills must refer to one single subject and shall be submitted to the President of the National Assembly with sufficient explanation of their grounds, the list of articles that are being proposed and a clear indication of the articles that would be repealed or amended by the new laws.
Stability of the bargain depends on the winners upholding the commitments and limitations embodied in the constitution so that they do not provoke losers to resort to extra-constitutional action.
In democracies, enforcement of these constitutional limitations ultimately relies on citizens. If they can coordinate, citizens can prevent the government from imposing costs on them and violating the political bargain. If they cannot coordinate, democracy may not be stable, as the government will continuously adjust the bargain in its favor with political acquiescence. Written constitutions can assist citizens in overcoming the coordination problem by providing a definition of what constitutes a violation by government, thus providing a focal point for coordination and enforcement activity.
Resolving the coordination problem among citizens attempting to enforce limits on government behavior is extremely difficult, however, and the mere presence of a written constitution is no guarantee that coordination will in fact occur. A central problem for constitutional endurance is that, although the constitutional bargain may be an optimal, self-enforcing arrangement for the parties at the time it is drafted, it may not remain so.
At the start of any peacefully created constitutional arrangement, each party comes to the negotiating table to bargain. The bargaining process is costly, because it requires negotiation and the expenditure of political resources.
The parties will conclude a bargain or not based on an expected stream of benefits to particular groups, net the transaction costs of negotiation. Should they conclude a bargain, it will of necessity be incomplete, in that the parties will be unable to specify every future contingency. One reason it will be incomplete is the familiar one of the transaction costs of negotiating terms of a deal: parties that seek to specify every contingency will never conclude an agreement.
Beyond the costs of negotiation, we focus on two types of obstacles to specifying a complete constitutional contract. First, there is uncertainty about future payoffs, which may vary with exogenous factors. Exogenous change means that even endogenously stable constitutions may come under pressure for renegotiation.
Our examination of constitutional histories confirms that constitutions frequently appear to die because of exogenous shocks, such as wars, regime change, and shifts in the boundaries of the state.
This is the problem of hidden information. A party to constitutional negotiation may misrepresent its own endowments and intentions for strategic reasons. Hidden information can lead to a miscalculation of relative costs and benefits. One can imagine that if the miscalculation is severe enough, the disadvantaged party will seek to renegotiate the deal.
Thus hidden information at the time of drafting can exacerbate pressures on the constitution later on. The problem of hidden information is particularly severe in the first period of constitutional performance, and we have many examples of constitutions that die in their first year of operation, particularly in the context of failed peace agreements.
Future contingencies, however, grow more difficult to predict with time, as more and more exogenous factors arise and interact with each other in complex ways. One standard answer to the problem of incomplete information is to write loosely defined contracts that allow flexible adjustment over time as new information is revealed. The parties specify performance within general parameters that can accommodate changing circumstances.
There is, however, a well-known risk of moral hazard from such loosely specified contracts. If performance is not precisely specified, one might claim that circumstances have changed in order to take a greater share of the constitutional surplus. Indeed, knowing that this is a possibility down the road, a party might seek to conceal its intentions and endowments from its constitutional partners during negotiation.
The reverse is also true. A standard response to the problem of hidden information is to write a more complete agreement specifying contingencies. By forcing the other party to reveal information during negotiation, one can minimize strategically generated surprises down the road. But this solution to the problem of hidden information, in turn, exacerbates the risk of rigidity in the face of exogenous change. A third standard solution to problems of hidden and incomplete information is to rely on third parties.
Analogizing to contract law, one might imagine a theory of constitutional review in which the courts seek to correct bargaining problems down the road. In such a case, the role of the court would be to provide default rules that reflect its understanding of the position the parties would have bargained to, should they have had all the information at the time. In contract theory, courts playing this role can provide a disincentive for negotiating parties to hide information from the other party.
There are significant problems, however, with expecting courts to serve this function for constitutions. First, there are capacity issues in which the courts may be unable to determine what the appropriate rule is. Second, in the constitutional context, no matter what decision the court makes, the relevant parties still face the second-order decision as to whether or not to comply with the court decision. That is, there is no guarantee that the decision will be followed and there is no external enforcer of the court decision.
One must thus return to the incentives of the parties to understand constitutional endurance. Finally, the assumption that constitutional courts are able to correct bargaining problems of hidden information is problematic because courts are not automatically granted the power of judicial review. Indeed, the existence of a constitutional court is itself a product of the constitutional negotiation, a term over which parties will bargain.
To summarize, two sources of uncertainty, the first caused by variance in exogenous parameters and the second caused by strategic incentives to hide information, mean that parties will never be able to produce a complete constitutional contract.
In considering whether to renegotiate, each party will consider its position in the current bargain, comparing it with expected outcomes of a constitutional renegotiation. Change in the constitution, however, is not costless.
Amendment processes vary widely in their difficulty and complexity, and this will be a factor that affects a decision to seek to change the terms. Even more costly than amendment is total replacement, because there are more issues to bargain over and putting all the issues on the table renders the bargaining results less predictable ex ante. If the expected outcome of constitutional renegotiation conceived of as the set of all possible alternatives multiplied by their probabilities of obtaining, less negotiation and switching costs exceeds the current stream of benefits, parties will opt for renegotiation.
Once a party seeks renegotiation, it must consider what means to use. Here the constitution itself comes into play, for it will typically have provisions for amending its terms.
There are two primary mechanisms by which constitutional change occurs: formal amendments to the text and informal amendments that result from interpretive changes. We expect that flexibility in these mechanisms of amendment will facilitate renegotiation. Sometimes, however, infra-constitutional means of adjustment may be unavailable. For example, one party may control crucial institutions such as the legislature or courts that are necessary for formal or informal amendment.
In such circumstances, the party may simply transgress the constitution and see if other parties acquiesce. Many constitutions, especially those written after World War II, emphasize "positive rights," or the rights of citizens to decent housing, clean environment and good education from their governments. Another difference among constitutions is the amount of detail contained in the document. Constitution proclaims general principles in part because the original framers were divided on key political issues that have been interpreted by the U.
In some countries, institutional practices have been accepted as "constitutional" even though they were never written into law, while in other countries, such as in Mexico, actual governance did not match the principles propounded in their constitutions.
Remarkably, according to the Illinois scholars, no systematic data exist on the content, provisions and structure of constitutions. This gap in research limits the comparative study of what types of constitutions make for more durable and efficient political institutions. Even describing the contents of a constitution is difficult given the wide variations among countries and time periods.
In a working paper, Elkins, Ginsburg and James Melton, an Illinois graduate student in political science, argued that constitutions are valuable by restricting the behavior of government. Another function of constitutions is to define a nation and its goals.
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