A protective rights action is a judicial guarantee intended to redress the violation of the fundamental rights of people. However, when the State files a protective action there is a contradiction in terms.
(Fundamedios/IFEX) – 30 November 2012 – “When a State sues its citizens there is inequality and a legal aberration, since the State is not a holder of rights”. With this comment, the president of the Bar Association of Pichincha, José Alomía, described the ruling issued by the 21st Judge of the Civil Court of Pichincha who, on 12 November, accepted an injunction filed by the national secretary of the Public Administration (on behalf of the Executive), against the newspaper La Hora and stated that this outlet violated, to the detriment of the national government and the executive branch, their “constitutional rights to truthful information and the right to rectification”.
The lawyer explained that citizens have rights and are protected against abuses by the State, but the opposite is not true, so that the State should not have sued a citizen – in this case a media outlet. La Hora was forced to rectify information, published weeks earlier, about the official expenditure on advertising.
In this regard, Juan Francisco Guerrero – professor of constitutional law at the Catholic University of Quito and AndeanSimón Bolívar – commented that a protective rights action is a judicial guarantee intended to redress the violation of the fundamental rights of people. However, when the State files a protective action there is a contradiction in terms. “If there is a violation of these rights it means that the institutionality created by the State is not working properly because the violation is being allowed within the system”.
For Guerrero “it is curious that the State should file a protective action against an individual when it is meant to be the defender of rights and, by definition, is obliged to respect them.” The lawyer questioned the impartiality a judge could have in a case such as the one involving the newspaper La Hora, when he himself is part of a State body.
