The Rule of Law in Ecuador During the Pandemic

COVID-19 Reports on Latin America and the Caribbean: No. 14

The Ecuadorian health minister confirmed the country’s first case of Covid-19 on February 29, 2020. Ecuador’s early battle with the virus was well-documented globally, as it was the epicenter of the initial outbreak in Latin America. The port city of Guayaquil was particularly hit hard as its public health infrastructure collapsed amid a proliferating number of cases. In the early days of the pandemic, Spain’s El País characterized Guayaquil as the “Wuhan of Ecuador.”

President Lenín Moreno declared a sixty-day state of emergency (estado de excepción) on March 16 under an executive decree (no. 1017). The decree, which restricted citizens’ freedom of movement and assembly, also allowed the government to use satellite and cell phone platforms to monitor people suspected of having Covid in order to ensure they were complying with isolation requirements (art. 11, p. 17). Ecuador has no personal data protection law in place, although there is a bill on that topic languishing in the National Assembly. On March 19, Ecuador’s Constitutional Court ruled that the executive decree and its tracking measures were constitutional, but contoured the scope of the government’s data collection activities (Case No. 1-20-EE, §§ 54–56).

On April 14, Ecuador’s El Comercio cited the Ministry of Health’s most current Covid-19 statistics:  7,529 cases, 355 deaths from the virus, and 424 deaths suspected to be Covid related, although all of these numbers were likely higher.

Even before the state of emergency was officially declared, President Moreno had convened the National Committee for Emergency Operations (Comité de Operaciones de Emergencia Nacional, COE), which was charged with mounting the nation’s response to the health emergency. Similar emergency operations committees were constituted at the regional and cantonal levels. The government cited the following as its legal basis for convening these committees: article 390 of the Ecuadorian Constitution and article 24 of the Regulation of the State’s Public Security Law (Reglamento de la Ley de Seguridad Pública del Estado).

The national COE has met virtually on a regular basis since March 14; its members include various government ministers and Ecuador’s vice president. As part of its ongoing work, the COE has released resoluciones, informes, and infografías, which are available online. The COE’s first resolution banned large public events (emphasizing religious processions), gatherings of more than thirty people in public spaces like theatres and cinemas, the entry of foreigners and nationals for three weeks, and visits to senior citizens’ living facilities. The resolution also ordered public transit vehicles to be cleaned every three hours and the cremation of the remains of Covid-19 victims.

National ministries have also promulgated numerous acuerdos ministrales (ministerial agreements) during the pandemic. A full collection of acuerdos ministrales and other norms associated with the pandemic are available on the coronavirusecuador.com portal. The Ministry of Public Health’s website hosts a collection of its own norms and other Covid-related documents. Ecuador’s state of emergency was extended for thirty days on May 15 through another executive decree (no. 1052), and then again for sixty days on June 15 through executive decree (no. 1074). The latter decree acknowledged that, as of June 15, there were 47,322 Covid-19 cases and the country had lost 3,929 of its citizens to the virus (p. 8). On June 22, the National Assembly passed the Organic Law to Support the Humanitarian Response to Covid-19 (Ley Orgánica No. 46).

Various NGOs have been following Covid-19’s impact on Ecuador’s indigenous communities. The health ministry confirmed the first Covid-19 positive case among these groups on May 17. On May 20, the Waorani community filed a motion in a provincial court in Pichincha, asking that the court compel the Ecuadorian government to coordinate a Covid-19 plan with the group’s leadership. The provincial court ruled in the community’s favor on June 18, ordering the Ecuadorian government to take urgent actions to stop the spread of the virus in Waorani territory. In July, the Confederation of Indigenous Nationalities of the Ecuadorian Amazon created a platform to allocate and deliver Covid-19 services to Ecuador’s eleven groups of indigenous peoples. The platform is updated regularly, and it provides an array of Covid-19 data, including each group’s positivity rate, the number of suspected cases, the number of Covid fatalities, and recovery rates. The site is available in both Spanish and English.  On October 6, Amazon Watch and other NGOs went before the Inter-American Commission on Human Rights (via Zoom), alleging that the government of Ecuador had not fulfilled its obligations to protect its indigenous populations.

In the judicial branch, the Judicial Council (Consejo de la Judicatura), through Resolution 031-2020 dated March 17, suspended all judicial work in the country except for those judicial units with competence to hear “flagrant matters” (materia de flagrancia) (art. 2) and habeas corpus petitions (art. 5). The resolution defined “flagrant matters” as those concerning criminal law, domestic violence, traffic, and juvenile infractions (art. 2). This resolution, however, was reportedly applied inconsistently across the country. On April 28, the Constitutional Court ordered the Judicial Council to adopt “clear and timely measures to guarantee Ecuadoreans’ access to justice. The Judiciary Council should urgently clarify that even during the current state of emergency, Ecuadorians will not be restricted in their fundamental right to access justice in cases of human rights violations” (see § 21 of the opinion). On July 3, the Judicial Council adopted Resolution 074-2020; its provisions included directing courts with access to the proper technology and technical expertise to “prioritize” virtual hearings. The Judicial Council posted a manual on the protocol for virtual hearings (July 2020) and instructional manuals and videos for Zoom, WebEx, and Microsoft Teams.

On August 14, the Moreno government sought to extend the country’s state of emergency through another executive decree (no. 1126). The Constitutional Court allowed a thirty-day extension, but indicated that it would approve no further extensions after September 12. The judges, in their ruling, noted that the state of emergency should not be considered a permanent and suitable way to face adverse situations of an indefinite nature, in reference to the Covid-19 pandemic (see § 9 of the opinion). The Court ordered the government to use the tools of the ordinary legal regime to control and mitigate the health crisis (see §§ 42–45 of the opinion). On September 13, the COE kept in place the obligatory wearing of masks outside the home and the requirement of a negative PCR test (within the past 10 days) for those arriving in the country, while schools remained closed with virtual learning. The freedom of movement and assembly, however, was restored.

An October 28 article in El Universo reported that, according to the Minister of Health, the rates of Covid-19 infections in some areas of the country were falling, although he still urged citizens to remain vigilant. A quick check on November 6, 2020, of Ecuador’s Covid-19 dashboard per the WHO showed 171,783 confirmed cases and 12,730 deaths. Ecuador’s population is about 17 million. The United States’ Center for Disease Control (CDC) indicates that Ecuador still has a high risk of Covid infection. 

*For following legal developments in Ecuador, see El Universo and El Comercio (Spanish) and the Latin American Herald Tribune and Ecuador Times (English) as well as in our Venezuela, Colombia and Ecuador page. For an interesting read on the role of the Ecuadorian Constitutional Court during the early days of the pandemic, see the blog post, “How Ecuador’s Constitutional Court is Keeping the Executive Accountable During the Pandemic,” (Gustavo Prieto, April 28, 2020).

By Julienne Grant

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