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.
Paulina Mogrovejo*/Ecuador/ January 2015.
The Constitution of Ecuador, issued in 2008 and approved by referendum in the same year by 63% of all voters, was established as a national manifesto to “build a society that respects, in all its dimensions, the dignity of individuals and communities” to achieve a state of good living.
Viewed as a commitment to transform the constituent structures of a State in crisis, with its political institutions immersed in a condition of mercantilism and “not working or fulfilling citizens’ expectations, which was underlined by the three presidents who were overthrown and the social protests that have taken place since the supposed restoration of democracy” (Córdova, 2013)
The “doubtful victory” (in the words of Alain Touraine) of liberal democracy as a form of political organization, with the market economy as the economic model and secularization as a form of cultural expression, has left our country and Latin America as a whole exposed to “ungovernable” situations, characterized by unstable, inefficient and delegitimized political institutions; a democratic system of poor quality; and political, legal, economic and social systems exposed to the open market. Or as Touraine stated, “Neither fully identified with democracy,” and much less compatible with the guarantee of basic freedoms and human rights.
Thus, the rebuilding of constituent structures has represented the biggest challenge for Ecuador, as it passes from a State governed by the Rule of Law to a State that places the emphasis on rights, which marks a before and after in our constitutional history. And this is not only because of the supremacy of human rights in politics, the economy and culture; but rather for the new paradigm in the conception of the obligation to act, in order to enable the construction of free subjects as the true resource of the democratic model.
This other form of coexistence, also entails other ways to protect subjects, and beyond the declarations of past constitutions, which have resulted in a catalogue of good intentions, beyond the legal safeguards provided by constitutional protection. Under the Rule of Law, the regulations governing public policy and public services should focus on rights and the institutional systems that guarantee them. Thus, democracy takes on a different meaning, and not just as a «rational and secular» State where the market represents some type of new god.
Article 84 of the Constitution of the Republic of Ecuador establishes the following: “The National Assembly and all bodies with legal and regulatory authority shall be obliged to adjust, formally and materially, the laws and other legal standards related to the rights provided for in the Constitution and international treaties and those that are needed to guarantee the dignity of human beings or communities, peoples and nations. In no case shall amending the Constitution, laws, other legal and regulatory frameworks or actions by the government endanger the rights recognized by the Constitution.”
While article 85 of the Constitution states that public policies and the provision of public goods and services shall be aimed at enforcing the good way of living and all rights, and shall be drawn up on the basis of the principle of solidarity and citizens’ participation; that when the impacts of the implementation of public policies or the provision of public goods and services undermine or threaten to undermine constitutional rights, the policy or provision must be reformulated or alternative measures should be adopted to reconcile the conflicting rights. Moreover, the State is obliged according to this same article to guarantee the equitable and mutually supportive allocation of the budget for the implementation of public policies and the provision of public goods and services.
The Constitution then is projected as a comprehensive system of protection that exceeds the legalistic view of modern law, in order to emphasize processes of prevention and safeguards against possible abuses of power by the State or individuals who are exercising some form of State authority. It is a proposal to move from a vision of retributive justice to restorative and redistributive justice, the goal of which is the full exercise of constitutional rights and good living, in the political, economic, cultural or social realms.
Moreover, the right to health care means that “governments must establish the conditions that enable all people to live as healthy a life as possible” (WHO, 2013), because being healthy is not just about being free of any disease, but also involves the guarantee of vital determinants such as clean water, sanitation, food, nutrition, salubrious working conditions, wholesome environments, education and information. Moreover, the right to communications and information implies the obligation of the State to ensure those determinant factors that foment plurality, diversity and the full exercise of social and cultural rights; and this involves much more than simply refraining from the censorship of free speech.
It would thus be sensible, as with the right to health care, that the social communication system, as a subsystem of the comprehensive protection of rights to communication and information, be focused like the wheels of a tricycle: the first, referring to prevention through public policy and regulation; the second, prompt administrative or judicial protection; and a third wheel that corresponds to public services where all stakeholders are deemed responsible for implementing public policy with a focus on rights. A policy that ensures determinants such as availability (the equitable distribution of frequencies with the emphasis placed on communities); accessibility (non-discrimination, physical and economic accessibility, transparency and access to information); acceptability (ethically and culturally appropriate, with the focus placed on gender and life cycles); and quality (respect for constitutional rights and international human rights standards).
This entire structure responds to the civic re-appropriation of the public space; to the recovery of the State as an institution founded by the sovereign power of the people; to the legitimation of governments with clear mechanisms of control, transparency and even recall from office. In terms of all human rights and the resources at its disposal, Ecuador has opted for “Legitimization and Sovereignty.” It wishes to be represented in the lyrics, images and sound in all its diversity, but at the same time it seeks to break with stereotypes that can exclude, denigrate or violate individuals. The country solemnly desires that its identify myths be deconstructed, and that ideologies emerge as part of the rights of freedom.
In the case of social communications media, that their service is of a public nature; that it is their obligation to implement processes of accountability and instruments of control linked to the exercise of responsibilities. This does not imply the control of censorship, rather the control of restoring people’s rights.
* Representative Adviser of the Ombudsman, Council for the Regulation and Development of Information and Communication (CORDICOM)
 Touraine, Alain. ¿Qué es la democracia? (What is democracy?), FCE, Mexico, 2001, pp. 15-34