At the time of writing this editorial the Court will resolve the request of the President, regarding the refusal of a Council of Military Discipline to judge the behavior of a military in active service for answering a personal letter directed to him, as the highest authority of the Armed Forces. According to Rafael Correa, the letter is offensive and constitutes a lack of respect that fits into grounds for disciplinary action against the officer.
The members of the Disciplinary Board based their refusal answering that they are not competent to hear this case since the rules that govern them apply only to solve situations of military indiscipline among military members, and saying that the President of the Republic is a non-military civil authority.
Given this response, Correa sued by a protective action supported by the Constitution the members of the Council, because this decision violates his right to legal security. Correa hopes that the constitutional court declares the existence of the infringement of such rights and to invalidate the resolution. In addition, the president has requested that the judge "ratifies" the President as the highest authority of the Armed Forces as set out in art. 147, paragraph 16 of the Constitution of the Republic.
I believe that the reasons given by the Council for not knowing the alleged indiscipline, do not go to the bottom of the situation in question, but, using marginal arguments, they chose to recuse themselves. The hierarchy of the President of the Republic within the Armed Forces is the "highest authority" therefore the Council should analyze the situation and decide whether the behavior of the military who answered the personal letter, constituted or not a regulatory offense which deserves a sanction.
The protective action, as it is stated in art. 39 of the Organic Law on Jurisdictional Guarantees and Constitutional Control (LOGJCC) requires there to proceed: 1. violation of a constitutional right; 2. that the act or omission comes from public authority and; 3. lack of other effective legal mechanism to protect the right.
We wondered then if there are all the three requirements. At first sight they would seem so fulfilled, but the art. 41 of the same law states that protective action proceeds against any act or omission of a non-judicial public authority that violates or has violated the rights to impair, diminish or cancel its enjoyment or exercise. The Military Disciplinary Board could be considered as a public authority? The answer is no.
The article 42 of the LOGJCC expressly states that "protective actions on rights are not applicable: 5. when the claim of the plaintiff is the declaration of a right".
Constitutional rights and the means to prevent infringement, all, without exception, even the "rights of nature", are designed to prevent abuse of public authority or individuals providing public services and not, to resolve the impasses that occur between state institutions, among which are, the executive branch and the Armed Forces.
Ecuadorian legislation has recently incorporated some absurdities such as "compulsory resignation," "the limitation of profits to workers", "advance of the income tax whether or not profits exist", among others. Now, it is also intended that the one who has power and authority has to be legitimized by a constitutional judge ordering a Disciplinary Council to obey, and that this same judge declares the existence of a law confirming that the President is the highest authority of the Armed Forces.
From what we have discussed, we conclude that the action for constitutional protection submitted by the President of the Republic does not proceed neither by form or content.
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