The current constitutional system in Ecuador is a constitutional state of rights and justice. As a result, there is a special focus in two characteristics: first, the direct application of the fundamental rights and, second, the source of constitutional law beyond the formal text of the constitution which entitles constitutional judges to observe also foreign judgments and foreign constitutions as source or reference for their decisions.
A Constitutional State of Rights and Justice
The Constitution 2008 states as a principle in Art. 1 that Ecuador is a Constitutional State of rights and justice. This new concept for the structure of the State brings a new environment. One characteristic in a constitutional state of rights is that every person is submitted to the constitutional rights. The judges are entitled to the direct application of the Constitution in matters of fundamental rights. Consequently, there is no requirement of a law for the defense of these rights (Zavala 2010).
In addition, in a constitutional state of rights the characteristic is that sources of law are diversified beyond the statute. A principle of legal plurality is adopted including caselaw from local constitutional courts to be considered as national precedents, judgments from international courts, public policies in form of a law, indigenous communities law and judgments, and morality for the interpretation of legal texts (Avila 2009).
As a consequence, the Constitution 2008 created the Constitutional Court to act as the binding instance of interpretation of the Constitution and human rights treaties, to decide about the constitutionality of statutory law or general regulations by the administration, and to issue precedents regarding constitutional actions among other functions as stated in Art. 436. (Constitucion del Ecuador 2008).
Sources of Constitutional Law
A concept known as Constitutional Block had its origins in France in 1971. The objective was to recognize constitutional force to those fundamental rights not included in the text of the French Constitution of 1958. (Caicedo 2009).
With this in mind, the Constitutional Court of Ecuador formalized in 2010 a system of sources of constitutional law, adopting the mentioned principle of legal plurality. This system includes the Constitution of Ecuador as the compulsory source. Previous constitutions of Ecuador and constitutions from other countries are to be considered as reference.
Human Rights International Treaties in which Ecuador is member are considered binding regulations and consequently direct source. Not binding instruments as decisions and reports from Intergovernmental organizations, committees and international networks of civil society are to be taken in consideration to help to provide judicial reasoning.
Comparative international jurisprudence by courts of human rights are considered sources as well as jurisprudence of constitutional courts of the region when they contain precedents. Doctrines of local or foreign law are to be used to illustrate the juridical arguments in a decision that will create a precedent. Besides, decisions that do not create precedent can be taken in consideration as an exception. (PCO 2010).
Moreover, it is a fact that the Ecuador Constitutional Court has based many of its decisions in previous judgments by foreign courts, as those from Colombia, Spain and Germany.
Foreign Judgments as Source of Constitutional Law in Ecuador
As has been noted, the constitutional block of Ecuador entitles the Constitutional Court to justify its decisions based on jurisprudence from other courts, and doctrines in relation to the law in other jurisdictions. These are three examples of decisions in which the reasoning included foreign jurisprudence:
First, in 29 September 2009 with the case Omnibus BB the Court issued the Judicial Reasoning Test based in a judgment from the Supreme Court of Justice of Colombia (Case OMNIBUS BB 2009). This Test with the elements of logic and understandable reasoning constitutes the main fundament for many sentences from the Constitutional Court of Ecuador (Villagran 2016).
Second, in 8 May 2012 the Constitutional Court of Ecuador in the case Maria Bermeo et.al., as a reference for their decision, used a previous judgment from the Constitutional Tribunal of Spain in another matter related to judicial reasoning (Case Maria Bermeo et.al. 2012).
Third, in 3 July 2014, in the case Delia Tacuri, through binding jurisprudence the Court issued rules of constitutional law in matters of the emergence of personal data protection. The justification by the Court included a reference to a previous judgment by the Federal Constitutional Court of Germany regarding the 1983 census act. The principle is related to privacy. Every person has the fundamental right to determine the disclosure of its personal information (Case Delia Tacuri 2014).
Besides, submissions to foreign judgments for the interpretation of constitutional matters is not an exclusive particularity of the Constitutional Court of Ecuador. The use of foreign decisions in constitutional courts is a common practice by many countries, also known as judiciary transnational dialogue promoting the creation of a consensus in determined matters of constitutional law (Brito 2010). This is the so called fifth method of constitutional interpretation proposed by Peter Haberle, the comparison of Constitutions as a comparison of cultures (Gonzalez 2012).