Evolutionary interpretation and fraud against the express constitutional norm of Ecuador.

Abstract

The research addressed the problem of the limits of evolutionary interpretation in Ecuadorian constitutionalism, especially when this method is used against written provisions with a clear and unambiguous meaning. The central issue was to determine whether the Constitutional Court can expand the scope of an express norm based on arguments of new social realities or the expansion of rights, or whether this practice may configure a judicial substitution of the constitutional text, thereby affecting legal certainty, constitutional rigidity, and the separation of powers. The objective was to establish whether evolutionary interpretation, pursuant to Article 427 of the Constitution, can only be used as an exceptional rule when there is doubt, a vacuum, or ambiguity regarding the norm; or, conversely, whether it could serve as a hermeneutic tool that modifies the objective meaning of express or clear provisions of the law. To this end, Article 3 of the LOGJCC was analyzed, as well as Articles 82, 226, 424, 441, 442, and 444 of the Constitution. The methodology was qualitative, dogmatic, systematic, and jurisprudential. The results show that evolutionary interpretation is valid when it fills actual legal gaps. However, its use against clear rules could cause an illegal constitutional mutation. In Judgment 11-18-CN/19, the majority opted for an evolutionary approach regarding Article 67. The dissent argued that the evolutionary approach required a formal reform. It was concluded that evolutionary interpretation must maintain an exceptional character. If it contradicts the clear text, it ceases to be interpretation and can turn into fraud against the Constitution.