Review of the Constitutionality of Executive Decree no. 741 issued on may 17, 2023 by the President of the Republic of Ecuador

Abstract

Kelsen's theory (1903) considers the review of the constitutionality of laws as essential part of constitutionalism. For Kelsen, the judicial review of laws safeguards the regular functioning of the legal system; that is to say, in a constitutional State, the existence of a body that controls the coherence of infra-constitutional norms and the actions of the public authorities with the Basic norm, is necessary. The general objective of this research is to determine whether the constitutionality of Decree No. 741 of May 17, 2023 was reviewed, while the specific objectives are to define the constitutional requirements for the dissolution of the National Assembly by the Executive, to delve into the actions of the President of the Republic, and to study the relevance of the review of the constitutionality of laws pertaining to administrative acts containing a political decision. A qualitative methodology was applied for this research, via an exegetical method that included documentary review, jurisprudence and the interpretation of the Ecuadorian laws. The study shows that the Constitutional Court, on May 18, 2023 in cases 39, 40, 41, 42, 43, 44 -23-IN, abstained from reviewing the constitutionality of Decree No. 741, by which the President, Guillermo Lasso, under Article 148 of the 2008 Constitution of Ecuador dissolved the National Assembly, due to a grave political crisis and social turmoil. This research is relevant for the transformation of law-related higher education as it allows understanding the limitations of constitutional review, since the Constitutional Court decided not to interfere in the power struggle and placed the Executive above the rest of branches, thus hindering the possibility of reviewing the constitutionality of Decree No. 741.