At the time of writing this editorial the Court will resolve the
request of the President, regarding the refusal of a Council of
Military Discipline to judge the behavior of a military in active
service for answering a personal letter directed to him, as the
highest authority of the Armed Forces. According to Rafael Correa,
the letter is offensive and constitutes a lack of respect that fits
into grounds for disciplinary action against the officer.
The members of the Disciplinary Board based their refusal
answering that they are not competent to hear this case since the
rules that govern them apply only to solve situations of military
indiscipline among military members, and saying that the President
of the Republic is a non-military civil authority.
Given this response, Correa sued by a protective action
supported by the Constitution the members of the Council, because
this decision violates his right to legal security. Correa hopes
that the constitutional court declares the existence of the
infringement of such rights and to invalidate the resolution. In
addition, the president has requested that the judge
"ratifies" the President as the highest authority of the
Armed Forces as set out in art. 147, paragraph 16 of the
Constitution of the Republic.
I believe that the reasons given by the Council for not knowing
the alleged indiscipline, do not go to the bottom of the situation
in question, but, using marginal arguments, they chose to recuse
themselves. The hierarchy of the President of the Republic within
the Armed Forces is the "highest authority" therefore the
Council should analyze the situation and decide whether the
behavior of the military who answered the personal letter,
constituted or not a regulatory offense which deserves a
The protective action, as it is stated in art. 39 of the Organic
Law on Jurisdictional Guarantees and Constitutional Control
(LOGJCC) requires there to proceed: 1. violation of a
constitutional right; 2. that the act or omission comes from public
authority and; 3. lack of other effective legal mechanism to
protect the right.
We wondered then if there are all the three requirements. At
first sight they would seem so fulfilled, but the art. 41 of the
same law states that protective action proceeds against any act or
omission of a non-judicial public authority that violates or has
violated the rights to impair, diminish or cancel its enjoyment or
exercise. The Military Disciplinary Board could be considered as a
public authority? The answer is no.
The article 42 of the LOGJCC expressly states that
"protective actions on rights are not applicable: 5. when the
claim of the plaintiff is the declaration of a right".
Constitutional rights and the means to prevent infringement,
all, without exception, even the "rights of nature", are
designed to prevent abuse of public authority or individuals
providing public services and not, to resolve the impasses that
occur between state institutions, among which are, the executive
branch and the Armed Forces.
Ecuadorian legislation has recently incorporated some
absurdities such as "compulsory resignation," "the
limitation of profits to workers", "advance of the income
tax whether or not profits exist", among others. Now, it is
also intended that the one who has power and authority has to be
legitimized by a constitutional judge ordering a Disciplinary
Council to obey, and that this same judge declares the existence of
a law confirming that the President is the highest authority of the
From what we have discussed, we conclude that the action for
constitutional protection submitted by the President of the
Republic does not proceed neither by form or content.
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