Case Summary and Outcome

On August 29, 2024, the Constitutional Court of Ecuador, in the framework of a public action of unconstitutionality, held that the prohibition on political advocacy under Article 12 of the Organic Law Amending the Organic Law of the Council for Citizen Participation and Social Control (OLCCPSC) on civil society organizations, candidates, and citizens, violated the right to freedom of expression and was therefore unconstitutional. The Court found that banning these groups from expressing political support or opposition restricted the information available to the electorate, limited the exchange of ideas in an electoral context, and undermined democratic deliberation. As a result, the restriction affected both the individual and collective dimensions of the right to freedom of expression; thus, the Court declared the partial unconstitutionality of the contested law. At the same time, the Court upheld the constitutionality of Article 12 with respect to political parties and public officials. It reasoned that, in those cases, the prohibition on political advocacy pursued the legitimate aims of preventing conflicts of interest and ensuring impartiality in the selection of members of the Council for Citizen Participation and Social Control.

---

Facts

On April 2, 2018, Mauricio Martín Alarcón Salvador, Marcelo Patricio Espinel Vallejo, Carolina Fátima Ponce Eguiguren, and Luis Fernando Verdesoto Custode filed a public action of unconstitutionality before the Constitutional Court of Ecuador. The action was brought during the electoral period for the selection of members of the Council for Citizen Participation and Social Control (CCPSC).

Among several provisions of the Organic Law Amending the Organic Law of the Council for Citizen Participation and Social Control for the Application of Question 3 of the February 4, 2018 Referendum (OLCCPSC), the petitioners challenged Article 12, which stated:

“No political party or movement, social [civil society] organization, public official, candidate, or citizen may engage in political proselytizing in favor of or against any candidate for the Council for Citizen Participation and Social Control, which shall be considered an electoral offense under the law. The National Electoral Council shall be responsible for promoting the names, backgrounds, and proposals of each of the candidates, under equal conditions and opportunities. No private financing of any kind may be received or used. Any candidate who violates these provisions shall be disqualified by the National Electoral Council.” [para. 103]

The petitioners argued that Article 12 was unconstitutional because it violated the right to freedom of expression of civic organizations, candidates, and citizens. They specifically requested the partial unconstitutionality of Article 12, asking the Court to derogate the part of the article that banned civic organizations, candidates, and citizens from engaging in political advocacy.

---

Decision Overview

On August 29, 2024, the Constitutional Court of Ecuador issued a decision on this matter. It had to decide whether Article 12 of the OLCCPSC violated the right to freedom of expression by prohibiting political advocacy from political parties, civil society organizations, public officials, candidates, and citizens, in the context of the CCPSC’s elections.

The petitioners argued that the constitutional prohibition on political advocacy applied only to political parties and advertising through mass media. They argued that extending this restriction to prevent civil society organizations, candidates and citizens from engaging in communication related to candidates amounted to censorship and therefore constituted an illegitimate restriction on freedom of expression.

The National Assembly argued that Article 12 safeguarded freedom of expression, invoking the principles of legal interpretation set forth in the Organic Law on Jurisdictional Guarantees and Constitutional Control (LOGJCC).

The Attorney General’s Office considered that there was no clear argument regarding Article 12 of the OLCCPSC.

The Ecuadorian Presidency argued that prohibiting political advocacy by civil society organizations, candidates, or citizens was counterproductive to the exercise of an informed vote. It maintained that there was no justification for requiring candidates to observe complete electoral silence. Nonetheless, the Presidency argued that the prohibition on campaign financing should be maintained.

The Court decided to examine Article 12 separately with respect to each category mentioned in the prohibition: (i) political parties, (ii) civil society organizations, (iii) public officials, and (iv) candidates and citizens. In each case, it assessed whether the restriction pursued a legitimate constitutional aim, and whether it was necessary and proportionate.

(i) Political parties

With respect to political parties, the Court stated that Article 12 of the OLCCPSC sought to ensure the independence of the CCPSC members and to prevent them from being aligned with any particular political party. The Court considered this was a valid constitutional aim and found no less restrictive measure capable of achieving it.

While acknowledging that Article 12 limited the freedom of expression of political parties, the Court held that the measure pursued a high degree of political impartiality in a function that required it. Therefore, the restriction was deemed proportionate. Hence, the Court concluded that Article 12 of the OLCCPSC was compatible with the right to freedom of expression in this instance.

As a result, the Court did not declare Article 12 of the OLCCPSC unconstitutional with respect to political parties.

(ii) Civil society organizations

Regarding social organizations, the Court concluded that the provision violated the right to freedom of expression of this group.

The Court stated that the constitutionally valid aim of Article 12 was to control electoral campaigning. When it examined the necessity prong of the restriction, the Court explained that prohibiting political advocacy by civil society organizations was not required to achieve this aim. Controlling electoral messaging, the Court said, did not mean preventing civil society organizations from promoting candidates. The Court pointed out that there were alternative ways to control electoral campaigning that were less restrictive and did not involve limiting to such a high extent the freedom of expression of these organizations.

Although the Court had already found the measure unnecessary, it also examined its proportionality. The Court held that the restriction affected both the individual and collective dimensions of the right to freedom of expression. By silencing organizations, the measure limited the exchange of ideas in the electoral context, which weakened democratic deliberation. For this reason, the Court concluded that the restriction was disproportionate.

Since the restriction was neither necessary nor proportionate, the Court declared the unconstitutionality of Article 12 of the OLCCPSC in this instance.

(iii) Public officials

With respect to public officials, the Court relied on the Organic Law of Public Service—which prohibits public officials from engaging in electoral activities—and on the Organic Law of the Council for Citizen Participation and Social Control—which establishes that public officials are among those barred from becoming candidates for the CCPSC. Based on these rules, the Court explained that the control of political advocacy in the case of public officials was different from that of other actors, such as candidates or civil society organizations, because in this scenario, conflicts of interest could arise.

The Court held that the prohibition on political advocacy by public officials was both necessary and proportionate. Allowing public officials to engage in campaigning would create risks, such as the use of political advertising to advance their own particular interests in their capacity as state officials, the Court opined.

The Court recognized that Article 12 limited the freedom of expression of this group. However, it considered the limitation was justified, as it sought to ensure a high degree of political impartiality in a context where neutrality was essential and conflicts of interest were likely.

For these reasons, the Court declared the constitutionality of Article 12 of the OLCCPSC in this instance.

(iv) Candidates and citizens

Regarding candidates and citizens, the Court held that Article 12 of the OLCCPSC violated their right to freedom of expression. It emphasized that preventing them from engaging in political advocacy or from communicating their political preferences, reduced the amount of information available to the electorate. This restriction was especially problematic in electoral contexts, where public access to different opinions and proposals was essential for democratic deliberation.

The Court held that the restriction was unnecessary. It explained that there were other ways to limit undesirable electoral messaging without imposing such a severe limitation on freedom of expression.

The Court also held that the measure was not proportionate in the strict sense. It stated that the prohibition was the most burdensome restriction on the exercise of expression by candidates. Furthermore, the Court noted that the objective of controlling unauthorized campaigning or preventing partiality was only partly satisfied, since there was no evidence that political advocacy by candidates or citizens could undermine that aim. Therefore, the Court found there was no balance between the constitutional purpose of the contested prohibition and the restriction it imposed.

For these reasons, the Court concluded that Article 12 of the OLCCPSC was unconstitutional with respect to candidates and citizens.

Finally, the Court clarified that the type of political campaigning allowed for this group should take place through the exercise of free expression in ways that do not involve state financing or altering the legal regime of electoral messaging. The Court said that candidates could “organize events, express themselves on social media, or hold debates to promote their candidacies, as long as these activities respected the framework on campaign financing and expenditure control established by the National Electoral Council.” [para. 139]

In conclusion, the Court declared the partial unconstitutionality of Article 12 of the OLCCPSC. It held that the provision was unconstitutional with respect to civil society organizations, candidates, and citizens, as the restriction was neither necessary nor proportionate. However, it upheld the constitutionality of Article 12 with respect to political parties and public officials.

---