Ecuador

By Maria Nereida Jaimes

ecuador-flag_grande

Flag of Ecuador

Introduction

Ecuador, a democratic country named because of its proximity to the equator is bordered by South American countries Colombia and Peru. Ecuador has experienced a drastic change in its government in the past century and has managed to survive various eras of political and economic instability.

The beginning of the century marked a huge turn for the country as a new constitution emerged. Since the constitution was placed in effect in 1998, four presidents have lead the democratic country with varying ideologies.  The different viewpoints of such administrations in Ecuador have classified it as a “partly free” country by Freedom House and has gained the rank of 105 out of 180 concerning free speech and free press in 2017 by Reporters Without Borders. Ecuador has seen a gradual improvement in its rank as opposed to the previous years. Ecuador’s free speech and free press values plummeted with the third president, Rafael Correa. The Correa Administration suppressed the rights of free speech and free press with oppressive laws. In 2018, the new president Lenin Moreno has taken office in hopes of regaining faith from the Ecuadorian community.

Historical Background

Ecuador is a representative democracy that is composed of three branches: executive, legislative, and judicial. Ecuador has an autonomous electoral agency called the Tribunal Supremo Electoral which manages voting for all citizens. The country is separated into 24 provinces each of which is further divided into administrative cantones and parroquias. The democracy is bound by the constitution with ideas inspired from the United States.

Ecuador has a significant background that has lasted over a 9,000-year period. Ecuador’s history is marked by five eras, including the pre-Colombian era, the Conquest, the Colonial period, the War of Independence, and the Republic era. The Pre-Colombian era is marked by the Incan invasion of the tribes that formed the confederation of Quito. The Incan empire was ruled by Huayna Capac, who which divided the empire to his two sons Atahualpa and Huascar. The division not only created opposing beliefs but it led to a civil war in which Atahualpa arose victorious. The civil war weakened the Incan Empire and provided the perfect opportunity for the Spanish conquest. The conquest began when Francisco Pizzaro landed in Ecuador in 1531 and took advantage of the conflict to overthrow the Incan Empire.

The victory of the Spaniards marked the beginning of the Spanish Colonial Era in which Ecuador was an integral part of Spain’s colonies in the new world under the viceroyalty of Lima, Peru. In 1563 Ecuador was awarded its own Audiencia; a type of government, allowing it to deal directly with Madrid. The Quito Audiencia was composed of a court of justices and an advisory body that consisted of a president and several judges. During this period Ecuador was occupied by an encomienda system: a system that was composed of granted lands and forced labor. This encomienda system persisted to nearly the end of the Colonial Period.

Ecuador was under Spanish control for about 300 years until the Criollos—a mix of Spanish and natives begun the War for Independence era. This era emerged as Napoleon invaded Spain and deposed of King Ferdinand VII in July 1808. During this period there was strong oppositions from the Quito Audiencia. They called for a congress in 1811 and declared the entire area of the Audiencia to be independent of any government currently in Spain. Two month later the Audiencia approved a constitution for the state of Quito that provided for democratic government, but also granted recognition to the authority of Ferdinand should he return to the throne.

This gave way to the era of Gran Colombia, a period of eight years where Ecuador became the southern district within the Republic. The people of Ecuador weren’t quite satisfied with the Republic of Colombia and decided to part, drawing their own constitution once again. General Juan Jose Flores was placed in charge of political and military affairs and was noted as the founder of the Republic. Flores was preceded by General Garcia Moreno who governed through conservatism between 1860 and 1895. From 1895 to 1925 Ecuador was ruled by liberals, headed by Eloy Alfaro. Alfaro gave separation to the church and state, created schools and implemented several rights—such as freedom of speech. His administration was followed by Jose Maria Velasco Ibara, whose five presidential terms began with a mandate in 1934 and with his final presidency in 1972. The world wars created vast instability for the republic, and between 1960 and 1979 the country was subjected to a military government. In 1979 Ecuador returned to its democratic rule yet continued to suffer political and economic instability. At the end of the century Ecuador suffered and economic crisis causing it to change its currency to the dollar and reinvent its constitution once again. With the new constitution in place Quito Major Jamil Muhmad was named president, who later endorsed Gustavo Noboa to take his place. At the end of Noboas presidency Rafael Correa was elected president who served for three consecutive terms from 2007 to 2017 and who was later succeeded by the current president of Ecuador, Lenin Moreno.

Free Speech

The issues concerning free speech in Ecuador have become controversial internationally since the election of then—President Rafael Correa in 2007. Correa not only challenged the democracy and the nations constitution but he also undermined international agreements protecting free speech.

The biggest obstacle that Ecuador’s free speech has faced is the implementation of the 2013 Organic Communications Law (OCL). The law was passed in June 14, 2013 and it went in effect in 2014. The OCL seeks to provide the professionalism of journalism, as well as aims to defend citizen’s rights enabling them to object to publications that they do not agree with that have been written or said to in turn receive a public reply (Valentin, K. Erriksson). According to Freedom House the law was meant to impose a range of vaguely word content restrictions, codifying “media lynching” through the text for the government’s protection—defined as the repeated dissemination of information intended to harm a person’s reputation or credibility (Freedom House). In addition, the OCL also prohibits “censorship,” defined under the law, as the failure of private media outlets to cover issues that government considers to be of public interest (Human Rights Watch). The government posed the law to seem as a protection of the citizen’s rights to information, yet the law has been criticized as an oppressor of free speech and as a governmental tool to control and dictate the information made available to the public.

The Ecuadorian people have faced many issues since the implementation of the OCL, including the censorship of their speech and violent responses by the government officials disrupting peaceful protests. On Sept. 17, 2014, up to 20,000 Ecuadorians took to the streets to manifest a protest over issues concerning labor legislation, increases in transportation costs, access to public university education as well as other proposed policies (Human Rights Watch). The peaceful protestors were confronted by government officials and many were brutally beaten for speaking freely on the issues they found concerning. Many of the protestors were arrested and convicted without due process (Human Rights Watch). Three days after the events took place, President Correa went on to congratulate the National Police for their actions during the demonstrations and accused demonstrators of attempting to overthrow the government. This is one of the many protest that have been carried out, all resulting in similar outcomes. This sparked criticism from the United Nations and the Inter-American Commission of Human Rights condemning Correa’s free speech practices (Alpert, Megan). Correa sided with the public officials instead of protecting the rights of the citizens and condemning corruption.

Rafael Correa’s main focus was to protect himself and uphold the honor of the government. Correa focused on the oppression of free speech while claiming to be its guardian  (Index On Censorship). To uphold his claim on the protection of free speech Correa decided to grant asylum to WikiLeaks founder Julian Assange, who took refuge in the country’s embassy in London (Free Speech in Ecuador Has Limits). Correa’s actions to grant asylum to Assange—a free speaker in world issues contradicted the actions that he imposed at home concerning the freedom of speech. Correa and Assange were widely criticized, both for evoking ideas that contradicted their beliefs. Assange was previously “principled and plucky champion of freedom of speech, but the moment Assange decided to seek shelter in Ecuador… he betrayed the principles he claimed to represent” (Fuentes, Fred). Correa took this opportunity to uphold his image as the protector of free speech, given that he did in fact provide asylum to a key figure in international politics. Fred Fuentes makes the argument in Ecuador: Correa pushes free speech, challenges ‘media dictatorship’ that “above freedom of information and speech, comes freedom to make as much money as possible, no matter what. That is why, just as the U.S. hates Assange for releasing information it wanted to keep secret, media corporations hate Ecuador for challenging their right to control information.” This elicits the idea that with information comes power and that the freedom of speech infringes it.

Correa narrows the idea of free speech in order to protect his image and defend the government. The use of the internet as a platform has become a new way of expressing free speech and defying the nations laws. The internet has been used by individuals such as Gabriel Gonzales to criticize the government. Gabriel Gonzalez anonymously ran a humor website called the Crudo Ecuador that published photo montages and videos making fun of Correa (Alpert, Megan). Correa began to attack those who seek to criticize him, his main target being Gabriel Gonzales. The government’s role has been focused on censoring those who attack and defame public officials.  The government has also abused U.S. copyright law which whom they held international agreements with, all in efforts to try to have critical images and documents removed from the internet (World Report 2017). According to Reporters Without Borders, many Ecuadorians have seen content removed from their Facebook, YouTube or Twitter accounts that criticize or mock the government’s actions. The actions taken by the government to remove content that defames them via the use of the internet has become a way of censoring individuals when they choose to speak about issues that they deem important. Rafael Correa focused on protecting his reputation and manage to turn the law to his advantage while at the same time infringing on the freedom of speech.

Today the idea of the internet as a way of seeking to deliver free speech is one that has overcame many of the constrictions of the OCL. The government tried to censor Ecuadorians from viewing content that constricted their honor and dulled their political power. The government was not only criticized by the media or those informed of their actions but by many external factors such as the idea of trying to exploit U.S. copyright and its international agreements to provide for their protection.  The use of the internet makes it easier for individuals to share their beliefs and receive information that is not only important to the government but to their selves.

Free Press

The idea of free press has a significant role in providing information to the citizen that may be or not of utter importance. Ecuador’s free press has been an influential aspect in its history. During Correa’s presidency the idea of free press was suppressed, mostly due to the Organic Communications Law that infringed in every aspect that the media stands for.

Correa’s administration sought to use the law to “oppose media corporations that, through their monopoly on information, have created ‘media dictatorship’ for their own economic and political interest. They attempted to break the ‘media dictatorship’ and democratize the right to information and ensure media corporations are not beyond the law (Fuentes, Fred). The government also claims that the idea of the OCL is to provide “everyone information of public interest received through media that is verified, balanced, contextualized and opportune,” and that “the deliberate and repeated omission of subjects of public interest constitute an act of prior censorship” (Reporters Without Borders). The law in itself is a contradiction, a law that was formulated by the government to shift the power of the media to their hands. Since its implementation the government has attacked the press causing a “chilling effect,” an idea that has condemned the press to seek self-censorship for fear of the penalties imposed by the law.

The rule of a democracy states that the importance of communication through the media resides in the power that it obtains by influencing people massively by orienting their perceptions that could in respect provide for upcoming general interest that fortify the exercise of their rights. The media is granted with the power to provide information that influences the ideas of the general public, it is up to the public to decipher that information as useful or not. President Correa believed that certain information provided by the media was subject to be censored if it was not deemed as important by the government or if was based on defamation. The first lawsuit that Correa filled in the case of defamation was that against opinion editor Emilio Palacio after he was expelled from asking questions that Correa considered inappropriate (Martens, Vivares, & McChesney p. 73). “Ecuador’s highest court delivered a staggering, shameful blow to the country’s democracy siding with the president’s campaign to silence and bankrupt El Universo, Ecuador’s largest newspaper” (Ecuador’s Assault on Free Speech). The court upheld a $42 million libel judgment against Emilio Palacio as well as three other of the newspaper’s directors in addition to a three-year prison sentence. The root of it developed when Correa claimed “aggravated defamation of a public official—after Palacio wrote a column accusing Correa of ordering the army to open fire on a hospital during a protest.”  Due to international criticism focused on the violation of free speech, Correa excused the newspaper from paying any damages in exchange for a public apology (Reporters Without Borders). This case was brought to light even before the OCL was enacted, condemning the media to self-censorship on defamation cases.

When the OCL was implemented in 2013 the SUPERCOM—a government firm provided to deal with any violations of the OCL. According to Freedom House the SUPERCOM became involved in a high-profile case in January 2014, after the independent daily El Universo published a cartoon in December satirizing the government’s recent search of journalist and activists Fernando Villavicensio’s home, prompting Correa to call the cartoonist, Xavier Bonilla an “ink assassin” in televised speech. The government fined the newspaper two percent of profits from its fourth quarter, which amounted to $90,000 due to the violation of Article 25 of the OCL, which prohibits media from taking a position on the guilt or innocence of people involved in lawsuits. Bonilla was ordered to issue a correction and he was later sanctioned and asked to apologize again in 2015 when he published a cartoon labeled as discriminatory (Alpert, Megan). Gradually, Correa turned the law to favor him and his political agenda.

Freedom of press is diminished when the government seeks to control the importance of publications. Once the government involves itself with the credibility of the press the purpose of freedom has been exhausted. Free press gives the opportunity for journalist to publish content that many not be appropriate, or pleasant to everyone but it may be important in determining decisions by the general audience on topics that are of interest. In June 2014 four newspapers La Hora, El Comercio, El Universo and Hoy were accused of not providing Correa’s private visit to Chile enough coverage (Reporters Without Borders). According to Freedom House the coverage allegedly violated an article of the Communication Law that bans “prior censorship.” The law states that the media cannot censor information that is of utter importance to the public; the importance criteria determined by the government. This provides a violation of the constitution, for it states that the government may not dictate to the press what they have to publish. The law once again is so broadly written that it contradicts itself in its own terms.

The election of Correa marked the beginning of a corrupt government that forced the citizens to believe and only exercise the ideas they found fit. In a democracy the role of the press is to provide information to the citizens so that they can make informed decisions based on their knowledge and expertise. The role of the press is also to provide coverage on governmental corruption that is infringing on the rights of the individuals. The Organic Communication Law provided for the control of the press by thee government, suppressing the information that the consumer received. Ecuadorians were deceived by the law due to the lack of knowledge acquired because of governmental filtering. The people of Ecuador were found clueless on important matters such as corruption, increase in crime and overall attack to free speech. Since the end of Correa’s presidential terms, newly elected president Lenin Moreno has sought to overturn the many freedom violations that occurred under Correa. The task to overturn corruption and once again gain credibility from the Ecuadorian people will be marked to be a difficult one.

Critical Comparison

The United States was founded and established by the founders as a democracy that provides for basic liberties and human rights. The Bill of Rights is a document that was formulated to sustain the basic rights of the U.S. citizens. The First Amendment provides for the freedom of speech and freedom of press as well as others. The United States is seen worldwide as a free nation concerning freedom of speech and press. The legal system that provides for the protection of U.S. citizens and its constitutional rights is placed upon the checked judiciary branch; to avoid corruption.

Ecuador has posed the idea that any protest involving “broader public issues” are a violation to the government ideals because they automatically disturb the peace and incite lawless action. In the case of the protesters the lawless action only occurred when public officials decided to incite disturbance of the peace by beating demonstrators. If this were the case in the United States, the protesters would have the upper hand and the right to continue peacefully protesting, so far as their demonstration are of public concern and so far, as no lawless eminent action is incited. The U.S. Supreme Court case Snyder v. Phelps provides the idea that peaceful protest is protected under First Amendment to the Constitution to “ensure that public debate is not stifled.” They go on to add the idea provided by precedent that “if there is a bedrock principle underlying the first amendment, it is that the government may not prohibit the expression of an idea simply because the society finds it offensive or disagreeable” (Texas v. Johnson). The government may not intrude in public debate only because they find offense in it, but it should embrace it and ensure that the rights of the individual are protected and not violated by its protectors.

Ecuador’s free speech issues are focused on various parts of the spectrum. Many of the lawsuits and violations that have occurred since the election of Correa to president are concerned with cases of defamation. In the case of Emilio Palacio, Correa filled a lawsuit, claiming defamation of a public individual. If this case were tried in a U.S. court, it’s likely that Palacio’s case would be upheld in the precedent decided New York Times v. Sullivan. The Sullivan decision stated that the minimum guarantee of the First Amendment was the unconditional right to say what one pleases about public officials and that the constitution awards the citizen and the press, unconditional privilege to criticize official conduct despite the harm which may flow from excess and abuses as long as it does not violate the actual malice standard. With that, the court states in the decision that, the constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice—the knowledge that it was false or reckless disregard of weather it was false or not. The malice standard is not met in the case of Palacio; his sole purpose of publication was to inform the public of government actions.  Determining the basis that the case falls under, his conviction will likely be overturn due to the reasoning of the actual malice standard from the Sullivan decision.

Conclusion

In comparing Ecuador with the United States in free speech and free press, the United States comes out victorious in providing protections that enhances the flow of these rights. Ecuador lacks the stability and balance that the United States has acquired through the years in determining the constitutional protections of the individual. For Ecuador to become a freer nation on free speech and free press matters it must begin by diminishing corruption in government and justice system. It is the hope that the individuals who hold these rights seek to protect them before others choose to diminish their importance.

Works Cited:

Alpert, M. (2015, September 21). Free Speech Crackdown, Ecuador Edition. Retrieved March 20, 2018, from http://foreignpolicy.com/2015/09/21/free-speech-crackdown-ecuador- edition/

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Fuentes, Federico. 2012. “Ecuador: Correa pushes free speech, challenges ‘media dictatorship’.” Green Left Weekly no. 936: 15. Alternative Press Index, EBSCOhost (accessed March 13, 2018).

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Grisel Galiano, Maritan, and Santana Gabriela Tamayo. 2018. “Constitutional Analysis of   Personal Rights and their Relationship with the Rights of “Good Living” in the Constitution of Ecuador.” Revista De Derecho Privado (Bogota. 1997), Vol 0, Iss 34, Pp 123-156 (2018) no. 34:123. Directory of Open Access Journals, EBSCOhost (accessed   March 25, 2018).

Martens, C., Vivares, E., & McChesney, R. W. (2014). The international political economy of communication: Media and power in South America. Houndmills, Basingstoke,Hampshire: Palgrave Macmillan.

Miller, F. P., Vandome, A. F., & McBrewster, J. (2009). History of Ecuador: ancient cultures of   Ecuador, pre-Columbian Ecuador, Las Vegas culture (archaeology), Valdivia culture, Inca empire, royal audience of Quito, Spanish conquest of the Inca empire, Spanish colonization of the Americas. Beau Bassin, Mauritius: Alphascript Pub.

“Press Freedom Index 2017-2018”, Reporters Without Bordershttps://rsf.org/en/ecuadorl (accessed March 1, 2018).

Snyder v. Phelps. 562 U.S. 443_(2011)

Texas v. Johnson. 491 U.S. 397 (1989)

United States v. Sullivan274 U.S. 259 (1927)

What future for free speech in Ecuador after presidential election? | Reporters Without Borders. (2017, February 17). Retrieved March 21, 2018, from https://rsf.org/en/news/what-future- free-speech-ecuador-after-presidential-election

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This essay was last updated April, 30 2018.

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