El derecho a la resistencia como mecanismo de legitimación de la protesta social: Alcance constitucional y deficiencias normativas

Abstract

This study focuses on the right to resistance in Ecuador, recognized in Article 98 of the 2008 Constitution. Although this guarantee seeks to protect citizens from abuses of public power or third parties, in practice it is marked by ambiguities and a lack of binding jurisprudence, which hinders its application. The research is based on the observation that in recent years the country has been the scene of strong social protests (2019 and 2022), which had significant social, political, and economic consequences, and to which the State responded in many cases with repression and criminalization of the protests. The research adopts a mixed methodology: from a legal-dogmatic perspective, it analyzes the Constitution, related regulations, doctrine, and comparative law experiences in countries such as Colombia and Peru; and from an empirical perspective, it conducts surveys of citizens and lawyers and interviews with judges and lawyers to learn about their perceptions of the exercise of the right to resistance and the need to regulate it. The results show that there is broad social support for the idea of creating a formal procedure that guarantees resistance as a democratic right, preventing it from being confused with acts of violence or vandalism. Faced with this reality, the proposal of this paper is to design a regulatory procedure that establishes clear rules for the exercise of the right to resistance. This procedure would include prior notifications to the authorities for planned protests, institutional and social oversight mechanisms, explicit limits on serious crimes, and exceptions for smaller-scale spontaneous protests, thus guaranteeing both the spontaneity of the right and legal certainty. Surveys and interviews show that the majority consider this regulation necessary, as it would help prevent state abuses, reduce unjustified criminalization, and promote a democratic framework for dialogue between the state and citizens. Although some experts warn of the risk of bureaucratizing the right to resistance, the general consensus is that a flexible and protective regulatory framework would strengthen the rule of law and consolidate citizen participation.