ECONOMIC PROVISIONS IN THE NEW CONSTITUTION

C O N F I D E N T I A L QUITO 000984 SIPDIS E.O. 12958: DECL: 10/14/2018 TAGS: ECON EINV ETRD EPET EMIN EFIN PREL EC SUBJECT: ECONOMIC PROVISIONS IN THE NEW CONSTITUTION REF: A. QUITO 942 ¶B. QUITO 831 ¶C. QUITO 897 ¶D. QUITO 896 Classified By: Classified by Ambassador Heather Hodges. REASON 1.4 (b) (d) ¶1. (C) Summary. The economic provisions of the new constitution allow for significant state control over the economy. However, they do not necessarily signal a new economic policy direction for the Correa Administration, as a number of provisions have parallels in the 1998 constitution, and in practice the government has already been able to impose its policies in many areas. Many of the economic provisions are vague and will depend on forthcoming implementing legislation. End summary. Overview of Economic Provisions -------------- ¶2. (C) In reviewing the economic provisions in the constitution, which was approved by voters on September 28 (reftel a),several broad themes stand out: - The economic provisions are often vague and confusing. Much will depend on implementing legislation or how the administration interprets the constitution. This will maintain the already high level of uncertainty for the business sector. - There is a strong predilection in the constitution for an active role for the state in the economy. If it so chooses, the administration could be more interventionist than it currently is, but the administration also has the flexibility to maintain its current mixed approach. - Some members of the Constituent Assembly had a more interventionist approach than the Correa Administration, which sought to moderate some of the more extreme proposals. - A number of key economic provisions, such as those on property, expropriation, and strategic sectors, are largely similar to those in the 1998 constitution, although where they do differ they allow for greater state intervention. - Other economic provisions, such as on the financial sector or market intervention, more explicitly allow for state intervention than does the 1998 constitution (although the government already has the authority to set interest rate ceilings and price controls). - Some provisions that would have been particularly restrictive, such as a ban on genetically modified organisms or international arbitration in treaties, were modified in drafting at the behest of the Correa Administration, providing broad escape provisions and muddling the intent of the provisions. ¶3. (U) The following is a synopsis and comment on key economic provisions in the constitution. Broad Economic Framework -------------- ¶4. (U) The broadest parameters for economic policy are in Art. 283, which establishes that the "economic system is social and "solidarity-minded" (solidario)," and will be made up of public, private, mixed, popular and common ("solidaria") economic organizations. Art. 284 sets out economic objectives: "adequate" distribution of income, "balanced" development, promote full employment, maintain economic stability, support "just and complementary" trade, etc. (Note: the 1998 constitution called for a "social market economy" and also established an objective of socially equal, regionally balanced development.) Planning -------------- ¶5. (U) Art. 275 establishes that the state will "plan the development of the country," and several other articles link economic policy to the national development plan, including trade policy (Art. 304),lending (Art. 310),and foreign direct investment (Art. 339). ¶6. (C) Comment: Parts of the Correa Administration expended considerable energy in developing the national development plan, and other parts of the government take care to reference the document to support their efforts. However, currently Post does not see the development plan as influencing key economic decisions such as treatment of petroleum and mining companies or lowering interest rates, which are made independently of the plan. Going forward, the plan might become a more important reference point or barrier, particularly if the government uses it to try to guide private sector decisions. However, the administration might continue merely to reference it or ignore it. Property -------------- ¶7. (U) Art. 321 recognizes and guarantees the right to property. Art. 322 recognizes intellectual property rights, and prohibits the "appropriation" of collective knowledge and certain types of genetic resources. Art. 323 allows for the expropriation of property for several reasons, including to "execute social development plans," provided there is just compensation. Outright confiscation is prohibited. Art. 282 stipulates that "The state will regulate use and access to land which must comply with social and environmental functions. A national land fund, established by law, will regulate equitable access for peasants (campesinos) to the land." ¶8. (SBU) Comment: Much of the language on property has parallels in the 1998 constitution, including a requirement that it fulfill its "social function," promote income growth and redistribution, and permit access for the population. The expropriation provisions in the new constitution are similar to the 1998 version. A number of observers are concerned that the "social function" provision in Art. 282 could be used for forced land redistribution. Within a few days of the referendum approving the constitution, there were several land invasions, which the Correa Administration promptly and forcefully rolled back. Strategic Sectors -------------- ¶9. (U) The concept of strategic or key state-controlled sectors appears in three different parts of the constitution. Art. 261 establishes areas where the central state (i.e., federal government) has exclusive competence, including natural protected areas and natural resources, radio spectrum including communications and telecommunications, ports and airports, energy resources, minerals, hydrocarbons, water, biodiversity, and forest resources. ¶10. (U) Articles 313-318 address strategic sectors. Per these articles, "the state reserves the right to administer, regulate, control and develop strategic sectors...." The strategic sectors are energy, telecommunications, non-renewable natural resources, transportation and refining of hydrocarbons, biodiversity and genetic patrimony, radio spectrum, water, and others as determined by law. Art. 315 stipulates that the state will establish public companies to develop the strategic sectors. Art. 316 provides that the state can also work through mixed companies that are majority-owned by the state, and then allows that, in an "exceptional form," the state may also delegate development to the private sector. ¶11. (SBU) Art. 318 prohibits privatization of water, and requires that the provision of potable water or irrigation be performed by state or community companies. However, transitory article 26 calls for an audit of all private water companies, and provides that the state will define the validity, renegotiation or termination of their contracts, implying that at least some existing contracts would remain in force. ¶12. (U) Art. 408 establishes that subsoil rights belong to the state, and also requires that the state receive an amount "not inferior" to that realized by the company that develops them. ¶13. (C) Comment: Many of the above provisions have parallels in the 1998 constitution, which also established strategic sectors. The 1998 constitution simply states that the sectors may be developed by public, mixed or private companies, while the new constitution in effect does the same, but shows a clear preference for public companies. Almost all the strategic sectors and sectors reserved for the federal government, to a greater or lesser degree, are currently being developed by private companies. Thus far, the Correa Administration has shown that it wants to obtain greater revenue from those companies, but appears to realize that the government does not have the capacity to manage strategic sectors by itself. The embassy suspects it may make ready use of the "exceptional" provision in Art. 316 to allow it to continue to work with private companies in strategic sectors. ¶14. (SBU) Comment, continued: A number of observers have noted that in the new constitution airports are reserved for the federal government, raising questions about the status of the private operators of the Quito and Guayaquil airports. However, the 1998 constitution has a similar provision, and the federal government, through a law, devolved management to the municipalities, which then turned operations over to private sector concessionaires. Banking -------------- ¶15. (U) Art. 302 outlines guidelines for monetary policy, which include provisions for "orienting excess liquidity toward necessary investment" and calling for interest rate levels that stimulate savings and financing (the latter could be used to limit spreads between deposit and loan rates). Art. 303 stipulates that monetary, credit, exchange, and financial policy is the exclusive purview of the administration, and the Central Bank will simply implement policy. Art. 308 establishes that banking is a public service. Art. 310 says that lending will be oriented in a preferred manner to sectors that meet the objectives of the National Development Plan. ¶16. (C) Comment: In contrast to many of the sectors mentioned above, the treatment of monetary policy and banking is appreciably different in the new constitution, since the 1998 constitution assigned monetary policy to an autonomous Central Bank and was silent on banking. The Administration's control over monetary policy, plus the provisions on excess liquidity, interest rate spreads and preferred sectors, will give the government greater control over the banking sector. In practice, the government already sets interest rates (reftel b),but the new constitution gives it the potential to intervene in other aspects of banking, such as directed lending. Regulatory Autonomy -------------- ¶17. (U) As noted above, the Central Bank expressly loses its autonomy and ability to set monetary policy. In addition, Art. 213, which provides the basic parameters for superintendencies (notably for banking and companies) does not provide for autonomous operations, as is the case in the 1998 constitution. ¶18. (C) Comment: While the Correa Administration did not have control over either the Central Bank or Superintendency of Banks when it first took office, it has been able to replace senior officials at both institutions with officials of its own choosing, reducing their autonomy in practice. The Central Bank does not now appear to have any autonomy, while the Superintendent of Banks does appear to have retained some limited autonomy on technical issues. Market Intervention -------------- ¶19. (U) Art. 335 establishes that "the state will regulate, control and intervene, when necessary, in economic exchanges and transactions." It also stipulates that "the state will define a price policy oriented to protecting national production, will establish sanction mechanisms to avoid whatever private monopolistic or oligopolistic practice, or the abuse of market domination or other unfair competition practices." ¶20. (SBU) Comment: The government, under existing authorities, has already established a limited number of price controls, but thus far has not imposed broad or onerous controls (reftel c). It also has plans to seek legislative approval for a competition law, which, if well done, would benefit Ecuador. Investment -------------- ¶21. (U) Art. 339 states that "the state will promote national and foreign investment," and that "foreign direct investment will be complementary to national investment ... and will be oriented according to the needs and priorities defined in the National Development Plan...." (Comment: The 1998 constitution simply says that national and foreign investment are guaranteed equal conditions.) ¶22. (U) Art. 422 states that Ecuador "will not celebrate treaties or international instruments in which the Ecuadorian state cedes sovereign jurisdiction to instances of international arbitration." The article provides exceptions for regional arbitration bodies or jurisdictional organs designated by signatory countries. ¶23. (C) Comment: The prohibition is written in the future tense. A senior Foreign Ministry official told the Embassy that Ecuador will continue to respect its existing bilateral investment treaties (BITs),although the provision could impede any future plans to negotiate BITs. The exception is aimed at a South American arbitration body that the Correa administration is attempting to establish. Meanwhile, in contract negotiations with international oil companies, the Correa administration has accepted certain international arbitration fora, although it has rejected others. Trade -------------- ¶24. (U) Art. 304 sets out the objectives for trade policy, notably developing internal markets, promoting economies of scale and avoiding monopolistic practices. Art. 281, part of the section on food sovereignty, calls for fiscal, tax, and tariff policies to protect the agricultural and food sectors to avoid dependence on imported foods. Art. 288 establishes priority for national products and services in government procurement. (Comment: To date, the Correa administration has lowered over a thousand tariffs, primarily of inputs, to lower the cost of domestic production, although it has raised tariffs on a smaller number of finished goods.) Budget -------------- ¶25. (U) The new constitution imposes additional spending requirements on the federal government, notably two transitory articles that require that six percent of GDP be spent on education and four percent on health. It also expands the coverage of the social security program. ¶26. (C) Comment: The 1998 constitution also has spending requirements on education and health, which were largely ignored. Former Finance Minister Salgado asserted that the new spending requirements would not have a large immediate impact on the budget since they would be implemented slowly (reftel d). Biotech -------------- ¶27. (U) Art. 15 bans the import or sale of genetically modified organisms (GMOs) that are unsafe for humans or the environment. Art. 410 declares that Ecuador is free of transgenic cultivation and seeds, but allows the President and National Assembly to make exceptions. ¶28. (C) Comment: These provisions are not particularly restrictive, and are an example of the Correa Administration insisting on exceptions to the more restrictive measures initially drafted by the Constituent Assembly, resulting in muddled text that has little apparent purpose. Comment -------------- ¶29. (C) Overall, the economic provisions of the new constitution allow for significant government intervention in the economy. However, they do not necessarily mean that government intervention will increase, or even signal the direction of economic policy under the Correa government. ¶30. (C) The 1998 constitution already has a number of features that appear in the new constitution, such as a "social" parameter for the economy and property. Furthermore, the government has had considerable flexibility to pursue economic policies under the 1998 constitution, lowering interest rates, imposing price controls, and forcing contract renegotiations with oil and mining companies. A second factor is that the Constituent Assembly operated with a degree of independence from the Correa Administration, particularly in crafting initial drafts, and a significant portion of the Assembly had a more interventionist bent than the Correa Government. That at times left the administration attempting to walk back provisions that it found too restrictive, as it did, for example, on the initial prohibitions on GMOs. ¶31. (C) The new constitution does go further than the 1998 constitution in allowing for market intervention, so if either the Correa Government or a subsequent government wanted to increase state control over the economy, the new constitution would provide additional tools and political cover to do so. ¶32. (C) Many provisions of the new constitution require additional clarification or leave considerable flexibility to the administration. Much will depend on the implementing legislation. This will keep the level of uncertainty high, which will likely continue to dampen investment. HODGES