Legal analysis of the state of emergency in Morona Santiago province in relation to the confrontations between members of the Shuar community and the national police force.
By Felipe Castro and Mario Melo[1]
Background
Last Monday November 21st 2016, a group of people from the Shuar community have taken over a mining camp in the community Nankints [2] located in Santiago de Pananza parish, San Juan Bosco canton, Morona Santiago province.
Accordingto a communication released by members of the Shuar community in Nankints this action was a result of the eviction and destruction of the Nankintsresidents’ homes by the police in august 2016 in order to give place to mining developments of the San carlos Pananza project developed by the Chinese company Ecuacorriente (ECSA). On November 22nd, Tuesday members of the state security force took control of the mining camp and informed there were injured police officers, there is no information available about the situation of the shuar indigenous community.
On December 14th, Wednesday, was announced the death of a police officer and several injured as consequence of a new confrontation between the police force and the co-proprietors[3] in Nankints. As a consequence, the president through the article 1276 declared state of emergency.
Deeply worried for the situation development, and convinced that the socio-environmental conflict should be channeled through mechanisms offered by the justice and rights state and the peace culture proclaimed by the constitution, we shared the following analysis.
Legal analysis of the executive act 1276 declaring state of emergency.
The state of emergency is a mechanism that the constitution gives to the president of the republic, to face an extraordinary situation or circumstance which may affect the normal operation of the state or society, according to professor Hernán Salgado Pesantes, “it means a major limitation to the rule of law, because it implies the existence of severe alterations in the national convivence which cannot be solved by the ordinary constitutional order, and that is why it is necessary turning to extraordinary not to say extreme measures[4].
Pursuant to article 164 of the constitution, “the president of the republic will be able to decree state of emergency in the whole or partial territory in case of aggression, domestic or international military conflict, major inner commotion or calamity.
It means that, due to extraordinary circumstances, the president can adopt measures that aimed at the solution of the conflict or situation, imply the limitation of some rights which in normal circumstances cannot be limited because they constitute a restriction of the rule of law, the declaratory of state of emergency, requires, on one side fulfill certain formal requirements and on the other its content must materially fulfill the parameters stablished in the constitution.
Formal parameters
Pursuant to article164 of the constitution, “the decree that stablishes state of emergency shall contain the determination of the causal and its motivation, territorial scope of application, duration period, measures to be applied, the rights that might be suspended or limited, and the proper notifications according to the constitution and international treaties”.
In first place, the act which by means of is possible to declare state of emergency in an executive decree, which emission is exclusive of the president of the republic, in the caseunder analysis here, the declaratory of state of emergencywas done through the executive decree 1276 signed by the president on Wednesday December 14th 2016.
In accordance to article 1, executive decree 1276, the declaratory of state of emergency was originated in the aggressions against the police and army members in Morona Santiago province (cantones San Juan Bosco y Limón Indaza)from “illegally armed groups”, that have generated great domestic turmoil.
In that sense the implementation of state of emergency covers the territory of Morona Santiago province for 30 days Pursuant to articles 1 and 4 of the decree.
Among the measures included in the state of emergency are the deployment of police and army members, the suspension of the right to free speech and opinion, the right to freedom of association and gather, the right to move about freely and the right to the inviolability of the home, pursuant to articles 2 and 3 of the decree.
Finally, the article 5 points at the realization of the notification of the declaratory to the national assembly, the constitutional court, the Organization of American States (OEA), and the organization of the United nations (UN).
Based on the previously exposed, it can be said from a formal point of view, that the declaratory of state of emergency through the executive decree 1276 complies with the constitution.
Analysis of the fulfilling of material requirements.
Material requirements refer to the substantial parameters that the state of emergency must fulfill. These are, that the reasons and foundations that motivated its declaratory have a real base so the state be able to act through exceptional mechanisms, but in a rightful way.
About these requirements, the same article 164 of the constitution determines; “the state of emergency will observe the principles of necessity, proportionality, legality, temporality, territoriality and reasonableness”.
The constitutional court has stablished that the proportionality principle; “allows the existence of an adequate relationship between the means and the purposes pursued by the state, with the implementation of regulations which can be considered ideal, necessary and proportional in strict sense, reaching a balance between the benefits its implementation represents and the damages it could produce” [5].
This means that through the analysis of the means used by the state of emergency regarding the aimed purpose, the principles of necessity and reasonableness can be verified.
In this context, the constitutional court about the principle of necessity has noted that: “implies the verification of whether the measure adopted is the less harmful to the people`s rights”. Thereon, the test of necessity will be approved if “it is verified that there is no other measure that, being ideal as well be less detrimental for the people`s rights” [7].
The recitals of the executive decree 1276, remark that the reason that base the declaratory of state of emergency, is the identification of the group or groups of people illegally armed who have gather with the intention of generate acts of aggression, aiming at the avoidance of future violent acts that may compromise the citizens’ rights.
This may be considered a valid constitutional purpose, if it is based on article 3.8 of the constitution which considers as a fundamental duty of the state guarantying the right to a peace culture, to integral security and to live in a democratic society; or article 66.3 which recognizes the right to personal integrity, that includes a violence free life in public and private environments.
Nevertheless, it is appropriate to mention the existence of less restrictive measures that may comply this constitutionally valid purpose. Thereon is necessary point that in accordance to article 443.1 of the organic integral penal code, the general-attorney is the competent authority to organize and direct the specialized forensic medicine and forensic science integral investigation system. It means that facing any event deemed delinquent, the office of the public prosecutor has legal competence to carry on an investigation that results in the clarification of the facts and the indication of the responsible party.
In this case, a previous investigation numbered 140801816110006 is taking course in the office of Gualaquiza`sattorney, about an attempted murder caused by the events taking place on November 21st and 22nd. Similarly, about the death of a police officer, in accordance to article 461 of the organic integral penal code, the competent public prosecutor must conduct the respective investigationsto determine whoever is responsible for the fact.
The decree in context
As mentioned in the records, the conflict found its origin in the arrival of a mining company to the ancestral grounds of the Shuar people, which caused the eviction of a community to open place for extractive activities.
CONAE has declared that before being evicted, the community of Nankints, was in a dialogue process with several governmental entities in order to reach an agreement and the possibility of conducting a previous free and informed consultation, which has not been done [8]. Even, inside the declaration emitted by the Nankints community about the eviction, it is mentioned among the causes for the measures they took, the absence of a previous free and informed consultation.
Peacekeeping and finding politic and legal ways to solve the conflicts generated by different extractive and development projects in territories that belong to local communities, is imperative for the state and for civil society.
In that sense, to stablish a discussion table between the authorities and the Shuar people leading to the fulfillment of the participation rights and the indigenous tribe’s collective rights is an ideal measure that pursues the same purpose sought by the state of emergency, which is to avoid new acts of violence that may compromise the citizens` rights.
Thus far, several requests of dialog from indigenous tribes in order to find an efficient solution to the conflict have been heard [9]. In spite of the tension rising in the zone as a result of the death of a police officer and the declaratory of state of emergency, the claims for dialog remain, even CONAIE has asked for arbitration to the OEA and the church [10]. Even though, it has not been possible to find an opening to start dialogswith the state.
In this context, the mobilization of the state security corps, along with the suspension of rights, can create a bigger conflict than the one which is being attemptedto solve.
Conclusions
Based on the exposed considerations, it can be concluded that there are institutional mechanisms working on the identification of the group or groups of people mentioned in the executive decree declaring state of emergency. This mechanism, through a legal investigation of the facts, is less harmful than the state of emergency, because it is based in legal dispositions and is carried out in normal life situations of the state and society which do not require the suspension of guaranties and rights, the opposite, the limitation of rights and the mobilization of police and army corps in the frame of state of emergency, is a more wrongful measure, which may contribute to the worsening of the insecurity situation that is being attempted to solve.
On the other hand, the acts of violence that caused the declaratory of state of emergency have as an immediate base, the undertaking of mining activities in the traditional territory of the Shuar tribe, omitting the state obligation to perform a previous free and informed consultation in order to guarantee constitutional compliance. Because of this, it is urgent to find the space to hold conversations between the authorities and the members of the Shuar tribe to solve the conflict.
Pretending to solve socio-environmental conflicts through violence is a practice that should be in contempt, as coming from the state or from the civil population. Its eradication goes through the stablishing of permanent and efficient dialog channels and the compliance of the constitutional rights.
For this reason, when verified the existence of less harmful measures and mechanisms like research, stablishing an ideal legal process and the opening of dialog channels, the declaratory of state of emergency determined in the executive decree 1276 violates the principles of proportionality, necessity and reasonableness stablished in article 164 of the constitution.
Quito, December 18 2016
[1] Human rights attorneys[2] Daily El Comercio. Shuar coproprietors have taken over the mining camp in Nankints, available in: http://www.elcomercio.com/actualidad/comuneros-shuar-campamentominero-moronasantiago-mineria.html
[3] Daily El Comercio. A deceased personand several injured after confrontations between coproprietors and the army in Panantza. available in: http://www.elcomercio.com/actualidad/fallecido-heridos-enfrentamientos-panantza-mineria.html.
[4] Hernán Salgado Pesantes. Guardianes o sepulteros de la Constitución 2008? Article published in Anuario Iberoamericano de Justicia Constitucional, N° 17-2013. Centro de Estudios Políticos y Constitucionales. Madrid, 2013. available in: http://hernansalgadopesantes.com/index.php?option=com_content&view=article&id=40:guardianes-o-sepultureros-de-la-constitucion-2008&catid=2:articulos&Itemid=3.
[5] Ecuador constitutional court. Ruling: N° 010-15-SIN-CC, march 31st2015, MP: DR. Principales ATRG Alfredo Tirso Ruiz Guzmán, official registry N° 504 Supplement,may 20th 2015. [6] Ecuador constitutional court. Ruling: N° 008-15-DTI-CC, October 21st2015, MP: DR. Principales MCMS María del Carmen Madonado Sánchez, official registry N° 654 Supplement, December 22nd 2015[7] Ibíd..
[8] La República. CONAIE gives their version of the attack to the Chinese mining camp available in: http://www.larepublica.ec/blog/politica/2016/12/14/conaie-da-su-version-del-ataque-shuar-a-campamento-minero-chino/.
[9] Ecuavisa. Shuar community asks for dialogue to end the conflict. Available in: http://www.ecuavisa.com/articulo/noticias/actualidad/213256-comunidad-shuar-pide-dialogar-acabar-conflicto-campo-minero.
[10] Daily El Comercio. Indigenous tribes ask for mediation to the OEA and the ONU. Available in: http://www.elcomercio.com/actualidad/indigenas-oea-onu-iglesia-moronasantiago.html.
