There is currently an intense debate taking place in Ecuador regarding an initiative of President Rafael Correa to establish communications as a public service. In order to provide greater insight into this issue, OBSERVACOM has invited two of the country’s leading experts from both sides of the debate, in order to provide their points of view on a key issue related to the regulation of communication services. We would like to extend our thanks to both experts for being prepared to contribute to this latest issue of our newsletter.
“The expression and dissemination of ideas and information are indivisible, making any restriction of the possibilities of dissemination -through abuse of government control via the facade of public-service regulations, directly representing a limit on the right to freedom of expression…”
Juan Pablo Albán Alencastro*/ Ecuador, January 2015.
On 26 June 2014, the ruling bloc of the Ecuadorian National Assembly -consisting of 100 of the 137 legislators- and invoking Articles 441 and 443 of the Constitution of the Republic, placed a proposal before the Constitutional Court for 17 amendments to the Constitution. Of these, the one that has caused most public debate in Ecuador is an amendment that would allow for the continued re-election of elected officials. In the opinion of a significant segment of the country’s population, such a measure would offset the principle of political alternation as a guarantee of a genuine democracy. However, other aspects of the proposed reforms are -in my opinion- far more dangerous, given that they threaten fundamental rights such as effective judicial protection and freedom of expression, this by establishing communications as a public service, according to Article 16 of the draft amendments.
The human right to freedom of expression is recognized by the Constitution in Articles 16-18. However, this right would be seriously affected if it is established as a public service, as it would then fall under the control of the State, which could then argue that to ensure this “public good” it should be subjected to certain quality standards and criteria of liability.
This provision could well result in a serious restriction of the right to freedom of expression, through the conversion of one of its components into a prerogative of the State to be delegated to individuals. Under normal circumstances, the proposed amendments would not prosper, for under Articles 441 and 442 of the Ecuadorian Constitution, fundamental rights cannot be restricted by amendment or reform, of even by calling a referendum and obtaining the support of a majority of the electorate for the proposed measure. The only way that such a procedure could be implemented would by the setting up of a new Constituent Assembly according to the terms of Article 444 of the Constitution.
It is important to remember that constitutional law adheres to the principle of public order, which establishes that those aspects that are strictly prohibited by law, such as the restriction of constitutional rights via amendments or constitutional reform, are completely inadmissible.
The drafting of articles 441 and 442, which block any possibility of altering certain contents thereof through amendments or reforms, is part of what constitutionalists call “locks” or “intangibility clauses”. These locks were placed on our Constitution in response to certain members of the Assembly who are well aware that their actions represented a violation of the Constitution. However, if such a de facto reform is now introduced, ignoring the legal limits imposed by the Constitution, such intangibility clauses will lose all meaning, and with will also be sacrificed any sense of constitutional order.
Constitutionalists such as Riccardo Guastini have stated that one of the central features of constitutional models such as that now used by Ecuador, is rigidity, i.e. there are certain constitutional principles -including those used for the promotion of rights- that cannot be modified in any way, even when using procedures of review such as amendments or reforms that form part of the constitution.
However, and in spite of the above, on 31 October 2014 the Ecuadorian Constitutional Court, through decree No. 001-14-DRC-CC, gave the green light to the National Assembly to begin processing the draft amendments.
Regarding the specific question of the transformation of communication as a right to being a public service, the Court considered in its judgment that the satisfaction of the so-called rights for well-being, which include those related to communications and information, should be guaranteed by the provision of regulated public services and public policies designed by the Executive Branch as provided for by Article 85 of the Constitution; and that in this particular case, the media should be pathways or channels for citizens to satisfy their general interest to be informed or disseminate their own opinions, an activity that should be guaranteed by the State adhering to characteristics such as obligation, generality, uniformity , efficiency, accountability, universality, accessibility, regularity, continuity and quality.
In this regard, the Argentine author of Administrative Law, Agustín Gordillo, points out that public service is an activity carried out directly or indirectly by the Administrative Branch in order to satisfy a collective need, and in terms of principles of continuity, generality, uniformity and regularity –that is to say, a little less ambitious than the approach of our constitutional judges. However, Gordillo himself explains how the concept of public service is in crisis, especially considering that public interest does not mean the interest of our public administrations, and consequently the modern administrative doctrine of certain countries has started to abandon this term.
Moreover, the Inter-American Court of Human Rights sustains that freedom of expression has both an individual and a social dimension. In the case of the first, freedom of expression goes further than the theoretical recognition of the right to speak or write, rather also including, and quite inseparably, the right to use any appropriate means to express ideas and to have them reach as wide a public as possible. In this sense, the expression and dissemination of ideas and information are indivisible, making any restriction of the possibilities of dissemination -through abuse of government control via the facade of public-service regulations, directly representing a limit on the right to freedom of expression. With regard to the second dimension, which is of a social nature, freedom of expression represents a means for the exchange of ideas and information between persons; it includes the right of people to try to communicate their ideas to others, but also implies the right of everyone to know other opinions, reports and news (e.g. the case of “The Last Temptation of Christ”).
It is quite clear then that the dissemination of information and opinions and their reception by society in general, or rather the free-flow of communication, cannot be considered an activity of public administration, nor be subject to criteria such generality, consistency or regularity, or determined quality standards.
As the Inter-American Court of Human Rights declared: “Given the importance of freedom of expression in a democratic society […] the State must not only minimize restrictions on the flow of information, but also balance, to the greatest extent possible, the participation of diverse forms of information in the public debate, by promoting the pluralism of information. Consequently, it is equity that must regulate the flow of information” (the Case of Kimel v Argentina).
Luigi Ferrajoli himself, whose guarantor/protective theory supposedly inspired our current Constitution, states that “the fundamental rights and, therefore, constitutional norms that they consist of, precisely because they are rights of all and of each person, are not suppressible nor reducible by the majority […] once they have been constitutionally stipulated, fundamental rights are not a matter for the majority and should be extracted from the power of revision: or rather, only their expansion should be recognized and never their restriction, and much less their abolition.”
I believe that beyond the purely procedural, the characterization of communications (which are an essential component of the human right to freedom of expression) as a public service and therefore subject to State regulation, is basically a form of censorship and a way of imposing content that standardizes the general discourse. Such measures clearly prevent the formation of public opinion and any criticism of the actions of those in power, which is completely contradictory if we wish to deem ourselves a democratic nation.
* Legal Consultancy Director / Professor of International and Human Rights, Faculty of Law, San Francisco de Quito University, Ecuador.