Structural tension of andean neoconstitutionalism

Hyper-presidentialism versus dogmatic maximalism and the constitutional reform dilemma

Abstract

This research addresses the controversy over whether the garantista dogmatic framework of Ecuador's 2008 Constitution is the root cause of the current security crisis. The aim is to examine the structural tensions between the rights-based model and the materialisation of public security. The methodology corresponds to a theoretical-empirical type of research, with a mixed-method approach, non-experimental cross-sectional design, and explanatory scope, applying comparative law techniques and quantitative political analysis. The results demonstrate that the homicide rate steadily declined between 2012 and 2019 — a period coinciding with the full force of the constitutional text — which indicates that the crisis responds to multi-causal and post-institutional factors. The central finding exposes a structural incoherence: a dogmatic maximalism of rights coexists with a hyper-presidentialist organic design that generates an imbalance in the exercise of power and erodes judicial independence. This constitutional rigidity, derived from the principle of non-retrogression, imposes a structural limitation on legitimate state response, giving rise to a deviated jurisprudence that undermines legal certainty and fosters impunity. It is concluded that the current normative framework restricts state effectiveness; therefore, a dual and sequential strategy is proposed as an implication: first, an immediate jurisprudential reform by the Constitutional Court, aimed at establishing a balanced garantismo through the strict delimitation of the scope of guarantees; and, subsidiarily, a focused constitutional reform of Article 442 to codify those limits, thereby reharmonising the protection of rights with the State's effective punitive capacity.