A Guide to the Legal System and Legal Research in Paraguay

By Ana E. Rolón C.

Ana E. Rolón holds a Bachelor of Business Administration from “Universidad Nacional de Asunción, Facultad de Ciencias Económicas, Administrativas y Contables” (1995), and a graduate diploma in International Relations from “Academia Diplomática y Consular – Ministry of Foreign Affairs” (1995). She also attended the Post Graduate studies on Scientific Research & Methodology in the Universidad Nacional de Asunción (2000). She currently works for the Ministry of Foreign Affairs of Paraguay in the Cabinet of the Vice Ministry of Administrative And Technical Bureau. Prior to this position, Ms. Rolón worked as a staff member of the Consulate and Protocol Office of the Embassy of Paraguay in Washington, D.C. She also worked for 14 years with the private sector.

Published August 2007
READ THE UPDATE!

Introduction

The National Constitution is the fundamental law of the Republic of Paraguay. It was ratified by a National Constitutional Convention on June 20, 1992. It consists of the Preamble, in which its principles and fundamental purposes are summarized; a section containing its basic doctrine, comprised of articles 1 to 48; a section establishing fundamental legal standards, comprised of articles 49 to 291; and the Final and Temporary Dispositions, comprised of 20 articles that include final considerations such as the derogation of the constitution that was valid until that time. This constitution came to be at a particular moment in Paraguay’s history, three years after the establishment of democracy, following more than three decades of a military dictatorship, one of the most long-lived in Latin America.

This constitution incorporates new normative standards. For example, it establishes that there are two official languages; Spanish and Guarani. For this reason, teaching in the mother tongues becomes compulsory in elementary and secondary public education. Guarani is a language inherited from the Guarani natives, the first inhabitants of these lands before the arrival of Spanish colonists. 80% of Paraguay’s population speaks Guarani, and Paraguay is the only officially bilingual country in the Americas. In the 1967 Constitution, Spanish was the official language.

On the subject of religious and ideological freedom, these are guaranteed. The new constitution does not establish an official religion, in contrast to its predecessor, in which Roman Catholicism was officially consecrated, to the extent that the President of the Republic had the obligation of professing it.

As a historical reference, since its independence from Spain in 1811 Paraguay has ratified four constitutions. The first was in 1870, promulgated after 59 years of national independence. This constitution was one of the most democratic, considering that by the end of the 19th Century humanist philosophy became prevalent. This philosophy originated in the 1776 U.S. Declaration of Independence and the U.S. Constitution of 1787, and crossed over as a fundamental principle in the 1789 Declaration of the Rights of Man and the Citizen, during the French Revolution.

The second Constitution was the political charter of 1940, originating with a Coup D’état on February 18, 1940 when General José Félix Estigarribia[1] fully assumed governmental political power. By virtue of that situation, executive order 2242 of July 10, 1940 brought the Constitution into force; both drafted and ratified by the Executive. The new Constitution was then submitted to a plebiscite on August 4, 1940.

The third Constitution was ratified in 1967 with the participation of the four political parties legally in existence at the time. This constitution reestablished a bicameral legislature.

Jurisprudence is a formal source of law. It is the uniform and constant method by which the courts apply the law in cases submitted to their jurisdiction.

Jurisprudence is comprised of repeated and constant judgments issued by appellate courts and the Supreme Court; in other words, the customary manner in which the courts pass judgment.

Jurisprudence in the Paraguayan positive law has great juridical value. Following black letter law, it is the most significant legal source, given the importance it is given in the national legal tradition. Although its application is not compulsory, in practice it serves to support legal arguments and may determine a legal judgment. It is useful in defining “gray areas” in the law, in interpreting specific norms, and to reinforce to black letter law through decisions handed down by judges.

Article 9 of the Code of Judicial Organization currently in force establishes that judges must bear in mind legal precedent in making their decisions.

According to Paraguayan positive law, in order to be regarded as a reliable legal source, jurisprudence must be constant, uniform or homogeneous, and in accordance with black letter law.

Laws and the normative hierarchy

Laws are the only norms that create, modify or nullify rights or obligations in the Republic of Paraguay. They are not ranked among themselves.

The National Constitution is the fundamental law of the Republic. In hierarchical order, in addition to the Constitution, treaties, covenants and international agreements approved and ratified by the legislature, laws passed by Congress as well as other inferior dispositions that have been ratified make up national positive law. This scheme respects the theory of Hans Kelsen.

For example, the application of commercial agreements between the members of the MERCOSUR[2] community must first be approved by each country’s legislature. It is especially noteworthy that in Paraguay, in order to enter into force, such agreements must be in accordance with the methodology established in the Constitution.

An agreement signed by the national government and applied by the Executive Power is submitted to the Legislative Power for modification, approval o rejection. Once ratified by Congress, it is enacted and numbered by the Executive Power, and it becomes incorporated as law.

The Republic of Paraguay’s form of Government

As its form of government, the Republic of Paraguay has adopted a representative, participative and pluralist democracy, founded on the principle of human dignity. Sovereignty lies in the people and is manifested through suffrage.

The government embodied by the Legislative, Executive and Judicial powers in a system based on independence, balance, coordination and reciprocal control among the respective branches; no branch of government may attribute to itself, or grant to the other branches, additional powers or the totality of public power. An important innovation in the 1992 Constitution of 1992 is that it expressly establishes that dictatorship is outside the confines of the law.

Paraguay’s political and administrative structure is divided into departments, municipalities and districts, which enjoy political, administrative and normative autonomy in local matters. They also enjoy autarkic autonomy in matters pertaining to the collection and investment of its resources, within constitutional limitations.

The city Asunción is the capital and the seat of all three branches of government. It is a municipality independent of the other 17 departments, detailed as follows:

I Department: Concepción, capital Concepción,

II Department: San Pedro, capital San Pedro,

III Department: Cordillera, capital Caacupé,

IV Department: Guairá, capital Villarrica,

V Department: Caaguazú, capital Caaguazú,

VI Department: Caazapá, capital Caazapá,

VII Department: Itapúa, capital Encarnación,

VIII Department: Misiones, capital San Juan Bautista,

IX Department: Paraguarí, capital Paraguarí,

X Department: Alto Paraná, capital Ciudad del Este,

XI Department: Central, capital Areguá,

XII Department: Ñeembucu, capital Pilar,

XIII Department: Amambay, capital Pedro Juan Caballero,

XIV Department: Canindeyú, capital Saltos del Guairá,

XV Department: Pdte. Hayes, capital Villa Hayes[3],

XVI Department: Boquerón, capital Filadelfia,

XVII Department: Alto Paraguay, capital Fuerte Olimpo.

The last three Departments are situated in the extensive western region of the country, covering 52% of the national territory. The first 14 Departments are in the eastern region, these being the most populated.

Each Department has a Governor who represents to the Executive Power in the execution of national policy, and a Departmental Assembly. These are elected by a direct vote of the citizens within each respective department, in coincidence with general elections. These authorities were created by the last Constitution in force.

Municipalities are local government entities with juridical personality. They have political, administrative and normative autonomy, as well as autarkic autonomy in the collection and investment of their resources. The municipal government is headed by a Mayor and a Municipal Assembly, and is elected by direct vote. An important innovation in the Constitution of 1992 is that it establishes that 70% of real estate tax income remains in each municipality, 15% goes to the respective Department, and the remaining 15% is distributed among the municipalities with the lowest income.

The Public Force

In the Republic of Paraguay, the Public Force consists of the military and police forces exclusively.

The Nation’s Armed Forces constitute a national institution that is organized in a permanent, professional, obedient manner, subordinated to the powers of the State and subjugated to the Constitution and legal dispositions. Their mission is to safeguard territorial integrity and to defend to the legally constituted authorities. Active members of the military adjust their activities to laws and regulations. They cannot be affiliated to political parties or movements, nor can they participate in any political activity. The Armed Forces has a Military Tribunal which only acts on crimes and offenses of military character and that are committed by members of the military in active service, although its decisions may be appealed before ordinary courts.

The National Police is a professional, non deliberative and obedient institution, with permanent character and dependent of the Executive Power’s entity charged with the internal aspects of national security. Its mission is to preserve the legally established public order, such as the rights and security of persons and entities, as well as their property. The national police is charged with the prevention of crime, with executing the mandates of competent authorities and with investigating crimes, under judicial supervision. It is headed by a superior officer belonging to a permanent corps. Members in active duty cannot be affiliated to political parties or movements, nor can they participate in any political activity. This institution was also substantially modified by the 1992 Constitution. One key modification was that it came to depend on the Judicial Power in crime investigation.

Executive Power

The Executive Power is exercised by the President of the Republic, a personal office elected by direct vote. It is the most dignified of all national public offices.

Elected for a five year term, and not entitled to reelection, the President represents the State, directs the nation’s general administration, obeys and executes the Constitution and the Law, directs external relations and is Commander in Chief of the Armed Forces.

The 1992 Constitution incorporates the figure of the Vice-President, who, in case of impediment or temporary absence of the President, or also in case of a definite vacancy of the presidential office, substitutes the President with all the office’s attributions.

The President and Vice-President are elected jointed and directly by the people by a simple majority of votes, in general elections.

A very special situation was experienced in Paraguay in March of 1999. Luis María Argaña, the Vice-President at that time, was murdered in the capital city of Asuncion. This situation put Paraguay at a crossroads that had not been envisioned. The Constitution foresaw the vacancy of the President, but not so the Vice-President. Days after the assassination, the President resigned from office (in the face of imminent impeachment) and matter of succession was overcome by following the hierarchical order established in the Constitution, with the President of Congress assuming the high executive office.

Legislative Power

The Legislative Power is exercised by the National Congress, constituted by the Chamber of Senators, also called the High Chamber; and the Chamber of Deputies, or Low Chamber. The principal and substitute members of both chambers are elected directly by the people in general elections. Senatorial elections are national, while elections for Deputies are departmental.

The Congress

Both Chambers jointly make up the Congress. Among its functions are: to receive oaths of office from the President, Vice-president, and members of the Supreme Court of Justice, and of the Ministers of the Supreme Court of Justice; to concede or reject the President’s authority in certain cases; and receive the States or Governments’ Chief, among others functions. The President of the Chamber of Senators and the President of the Chamber of Deputies preside over meetings of Congress as President and Vice-president, respectively.

The Congress meets annually in ordinary sessions from July 1st of each year until June 30th of the following year, and recesses from December 21st to March 1st, at which time the President of the Republic presents his report to the Congress. Congress may also convene for extraordinary sessions or prolong its sessions if at least a quarter part of its members so decide, if a resolution is issued by at least two-thirds of the Permanent Commission of the Congress, or by an Executive Order.

Both chambers function individually, as well through in unicameral or bicameral committees, and when possible the committees are conformed in proportion to partisan representation in both chambers. Principal and substitute Senators and Deputies are elected alongside the presidential elections, have five year terms, and can be reelected.

Democratically elected former Presidents of the Republic are lifelong senators, with voice but without vote. This is an innovation of the 1992 Constitution, differing from the preceding constitution in which senatorial status was not granted to former presidents. The manner in which presidents came to power is also emphasized when it comes to this senatorial status. This status also grants immunity.

Regarding immunities, no legal action may be taken against any member of Congress for opinions expressed in the exercise of office, nor can any member of Congress be detained, unless deemed to be in flagrant violation that deserves corporal punishment.

Fifteen days before the annual recess, each Chamber designates a specific number of Senators and Deputies by absolutes majority, who make up the Permanent Congressional Committee during the recess.

The Chamber of Deputies

The Chamber of Deputies is based on representation of the departmental political divisions of Paraguay. It is made up of a minimum of eighty principal members and an equal number of substitutes. They are directly elected by the people in departmental electoral colleges. Asuncion, the capital, constitutes an electoral college with representation.

Departments are represented by at least one principal deputy and one substitute deputy. According to the electoral population from each department, and before each election, The Superior Tribunal of Electoral Justice establishes the number of seats allotted to each department.

The Chamber of Deputies is exclusively empowered to table bills regarding departmental and municipal legislation, to designate or propose magistrates and functionaries and to agree to the intervention of departmental governments, etc.

The Chamber of Senators

The Chamber of Senators is composed of at least forty principal members and thirty substitute members, directly elected by the people from a single national constituency.

The Chamber of Senators is exclusively empowered to table bills regarding the ratification of treaties and international agreements, to approve promotions for members of the armed forces and the national police, to approve the designation of Ambassadors and Plenipotentiary Ministers abroad, to approve the designation of the President and the directors of the Paraguayan Central Bank, etc.

Impeachment

Established by article 225 of the Constitution, impeachment is a process by which the President of the Republic, the Vice President, the Ministers of the Executive Power, the Supreme Court Justices, the Attorney General, the Ombudsman and the Comptroller General of the Republic, the Assistant Comptroller and the members of the Superior Tribunal of Electoral Justice can be tried and removed from office, but only in cases of a deficient fulfillment of their official duties, for crimes committed in the exercise of their official duties, or for common crimes.

The Chamber of Deputies initiates the process with a two third majority, while the Chamber of Senators publicly tries the accused, requiring a two third majority for impeachment.

If found guilty, officials are removed from office, and in the case of criminal offenses, the case is then remitted to the corresponding jurisdiction.

The Judiciary – Structure and Organization

The Judiciary is responsible for safeguarding the National Constitution by interpreting it, complying with it and assuring its compliance. It is also responsible for the administration of justice. It is important to note, however, that the Executive and Legislative Powers also have attributes related to compliance with the law, creating a situation in which the police and the penitentiary system respond to two branches of government. In cases of jurisdictional conflict, the branch which administers public institutions has jurisdiction.

However, article 248 of the National Constitution guarantees the independence of the Judiciary, indicating that the members of the other branches and other officials may not assume judicial powers not expressly established by the Constitution.

The Judiciary is exercised by the Supreme Court of Justice, the Tribunals and the Courts.

For the better administration of justice, the Judiciary is divided into jurisdictions which operate throughout the national territory.

Regarding its structure, the Judiciary has three levels:

  • Primary Level: Criminal, Civil and Commercial, Labor, Child and Adolescent Courts, divided into territorial jurisdictions throughout the national territory.
  • Second Level: Appeals Tribunals also divided into territorial jurisdictions.
  • Third Level: Supreme Court of Justice, the highest court in the land, situated in the Capital.

The Supreme Court of Justice

The Supreme Court of Justice oversees all judiciary bodies and decides on cases of jurisdictional conflict or responsibility. It resolves constitutional questions, petitions of appeal, and supervises institutions responsible for detention and imprisonment.

The Supreme Court also determines the attributes of the Constitutional Chamber, the only one recognized by the Constitution which does not have an established number of members, and which may establish its own internal rules and create other chambers.

The Supreme Court of Justice has nine members. They may only be removed from office by impeachment, or at the mandatory retirement age of 75. Members of the Supreme Court are designated by the Chamber of Senators with the approval of the Executive Power. They swear into office before the Congress. Article 258 of the Constitution establishes the requirements for Supreme Court membership.

The Supreme Court of Justice is organized into three chambers, respectively dealing with Civil matters, Commercial matters, Labor matters and Chile and Adolescent matters. Each chamber annually elects its President, and its members hold the title of Minister.

Tribunals and Courts

The members of the Appeals Tribunals and Courts in all the different matters are designated by the Supreme Court of Justice from shortlists of three candidates which are proposed by the Council of Magistrates. They swear into office before the Supreme Court of Justice, are designated for five year terms, and are removed from office by the Jury of Judgment of Magistrates.

Jury of Judgment of Magistrates

This institution, created by the current constitution and regulated by law, has eight members: two Supreme Court Justices, two members of the Council of Magistrates, two Senators and two Deputies, all of whom must hold law degrees.

Council of Magistrates

This institution was also created by the current constitution and is charged with proposing the shortlists of three candidates for membership in the Supreme Court of Justice, Appeals Tribunals, and Courts, as well as for the designation of Government Attorneys. It has its own rules of operation.

It has eight members: one Supreme Court Justice, one representative from the Executive Power (responding to the current administration party), one Senator, one Deputy, two attorneys at law, one professor from the College of Law of the National University of Asuncion and one professor from a college of law of a private university. These last four are chosen by a direct vote among their colleagues. The only non political figure in this institution is the Supreme Court Justice.

Ministry of the Attorney General

The Ministry of the Attorney General represents society before the jurisdictional organs of the State. It is considered an auxiliary body of justice and is exercised by the Attorney General of the State, Assistant Attorneys, Agents and Assistant Agents.

The Attorney General of the State must, among other conditions: have Paraguayan nationality, be at least 35 years of age, be a judge or a university professor, etc. The term of office is five years and is eligible for reelection. The AGS is appointed by the Executive Power with the approval of the Senate, and proposed in shortlists of three by the Council of Magistrates.

Agents of the Ministry of the Attorney General are designated in the same manner as judges, have five year terms of office and are removed from office by the Jury of Judgment of Magistrates. They swear into office before the Supreme Court of Justice. Law 1562/2000 sets out the Ministry of the Attorney General.

Another institution created by the current constitution is the Judicial Police, a body that works in collaboration with the Ministry of the Attorney General.

The Court of Accounts is also mentioned, but not its functions, taking into account that its composition and field of competence shall be determined by law.

Electoral Justice

Electoral Justice is included in the structure and organization of the Judiciary and is made up of the Superior Tribunal of Electoral Justice, the Tribunals, as well as electoral Courts and Offices.

All matters pertaining to convening, judging, organizing, directing and supervising acts related to general, departmental and municipal elections, as well as those related to the rights and titles of elected individuals, are the exclusive competence of electoral justice. It also attends to matters related to plebiscites, as well as the functioning of political parties and movements.

Electoral Justice works in parallel with the Judiciary, and its acts cannot be reviewed by the latter, according to article 273 of the Constitution.

Codes of the Republic

Paraguay has legal codes relating to a variety of fields: Criminal, Civil and Commercial, Labor, Child and Adolescent (substantive codes). It also has codes related to procedural matters, such as the Criminal Code of Procedure, Civil Code of Procedure, Labor Code of Procedure, etc. It also has a Code of Judicial Organization, a Customs Code, etc.

In matters of civil law, law 1183 of December 23, 1985, which sets out the Civil Code of the Republic of Paraguay, mentions in its first article that laws are compulsory and enter into force the day of their publication or as set forth in each law.

Note: La Gaceta Oficial is the official gazette of the country. Enacted laws are published first in La Gaceta Oficial (in print only) as well as cases (you might found them here). Another source for finding laws and cases is Anales de Legislacion Parguaya, publisher being Editorial La Ley. The official version of the codes is called Version Oficial and is published by Editorial El Foro. The most important legal journal of the country is called La Ley published by Editorial La Ley.

Oral Trials

When the new Constitution entered into force in June of 1992, society as a whole, but especially the legal community, was convinced that this was merely the first step in a transition towards a complete reform of the system of criminal justice in Paraguay.

As a second step, some legal and legislative institutions, conscious of the evident need to structurally reform the penal system, jointly began the meticulous task of verifying and individualizing the problems which led to the inefficient, slow, and time consuming of the penal system in place at the time. These institutions also began making legislative proposals aimed at changing the conservative and outdated criminal system and policy.

Legislative reform of the penal system in Paraguay began with the passing of Law 1160/97, establishing the new Penal Code that entered into force on November 26, 1998, whose effective application required an urgent change in the old Code of Criminal Procedures of 1889, still in force at the time, in which inquisitorial customs predominated, action and jurisdiction being fused and subject to the authority of the Judge.

The new Code of Criminal Procedure, Law 1286/98 was thus passed whose entry into force and application has produced an important transformation, both normative and cultural.

The current National Constitution, in pointing out that trials may be oral and public, in the manner and form determined by laws, evidently served as a basis for the introduction of the principal innovations in the new Code of Criminal Procedure, in which the tasks of investigating and judging are separate, the former a competence of the Ministry of the Attorney General and the latter exclusively a competence of the jurisdictional body.

The new Code of Criminal Procedure establishes three procedural phases: the preparatory or preliminary phase, carried out by the Ministry of the Attorney General, the intermediate phase, a determined time in which the involved parties may question the accusation, refine and question investigative procedures and findings or pave the way to an oral and public trial, this being the third stage.

The application of the oral and public trial within the penal system constituted great progress in the administration of criminal justice in Paraguay. This phase is characterized by a debate between the involved parties. This phase is overseen by a Sentencing Tribunal made up of three judges, who hand down a decision after having studying the evidence presented based on objective criteria.

Other Organs of the State

The Ombudsman

Another new institution created by the 1992 Constitution, the Ombudsman, or defender of the people, is a commissioned parliamentarian empowered with defending human rights, channeling popular demands and protecting community interests. This figure does not have a judicial function or an exclusive competence.

The Ombudsman enjoys autonomy and is immovable save for impeachment. Serving a five year term, with reelection possible, this figure is appointed by the Chamber of Deputies from a shortlist of three candidates that are proposed by the Senate.

The Comptroller General of the Republic

This is a new constitutional body that oversees the economic and financial activities of the State, the political departments and the municipalities. It enjoys functional and administrative autonomy.

It is composed of the Comptroller and the Sub-Comptroller, each of them designated by the Chamber of Deputies by absolute majority from shortlists proposed by the Chamber of Senators. They hold office for five years.

The Central Bank of the State

The Central Bank, technical in nature, is the only governmental organ empowered to issue monetary instruments. According to the objectives defined by governmental economic policy, it participates in the formulation of the monetary, credit related and exchange policy, being entrusted with its execution and development and the preservation of monetary stability. It reports to the Executive Power and the Congress.

Tax systems of Paraguay

According to the article 178 of the National Constitution, the State establishes taxes and contributions and other recourses, royalties, compensations, exploit public services, etc. as a source of incomes. It is forbidden the double imposition and in cases of foreign relations, the State can establish agreements in order to avoid the double imposition according to reciprocity. The Ministry of Finance is the institution in charge of everything regarding taxes.

Basic bibliography

  • Argaña, Luis María. “El Amparo: sus antecedentes y la Ley N° 340: su fundamentación parlamentaria, repertorio de jurisprudencia sobre amparo constitucional”, Editorial Litocolor S.R.L.  Asunción, Paraguay, 1986.
  • Camacho, Emilio; Lezcano Claude, Luis. “Comentario a la Constitución”, Editora Intercontinental, 1998.
  • Casco Pagano, Hernán.   “Derecho Procesal Civil”. Editoria Litocolor, S.R.L. Asunción, Paraguay, 2002.
  • Casañas Levi, José Fernand. “Manual de Derecho Penal, Parte General”. Editora Intercontinental. Asunción, Paraguay. Primera Edición 2000. Reedición 2003.
  • Lezcano Claude, Luis. “El control de Constitucionalidad en el Paraguay”, La Ley, 2000.
  • Mendonca, Daniel. “Cómo hacer cosas con la Constitución. Una introducción al análisis constitucional”, Editorial El lector, Asunción, 1999.
  • Mendonca, Juan Carlos. “La garantía de inconstitucionalidad”, El Lector, 2000.
  • Villagra Maffiodo, Salvador. “Principios de Derecho Administrativo”. Editorial El Foro, Asunción, 1981.

[1] Mcal. José Félix Estigarribia. (1888-1940). Comander of the Paraguayan Armed Forces during the Chaco War, later President of the Republic.

[2] MERCOSUR or Southern Cone Common Market. Treaty singed between Paraguay, Argentina, Brazil and Uruguay on March 26, 1991.

[3] In honor of the President of the USA Rutherford B. Hayes (1877-1893), who pronounced by Arbitral Laudo in 1878 in favor of Paraguay in a limit conflict with Bolivia.