And now, who will defend us?

Laws were created to regulate the coexistence of man within a society. Each country has a Supreme law, usually called Carta Magna or Constitution that establishes the foundations and principles by which it will be governed. It set down the main rights and obligations, as well as the guarantees that serve as a limit, to avoid abuse of power.

These constitutions were created by man, and modified by man as well, generally preceded by events that impact the country and the society to which they belong. This indicates that there is some degree of vulnerability because of the endowment. Mechanisms for their modification are also established.

In Paraguay, there are two ways: the Reformation and the Amendment. The first has a more demanding process, in which once the need for reform it´s declared, it should be called to elections for the conventional constituents who will be in charge of modifying the constitution without any limits regarding the modifications that can be made.

The second way, called Amendment, has a more simplified procedure, in which once it´s approved by both chambers of the congress, a referendum is carried out. By having a simpler procedure, there are some limitations. This can´t be used for changing …the provisions affecting the mode of election, composition, duration of mandates or attributions of any of the powers of the state[1], among other rights relating to life, liberty, environment, etc.

This controversy already a decade long, but more latent in these last months, next to the internal party elections that precede the presidential elections of 2018, is the one referring to the re-election. At this moment it is prohibited in the country by the article 229 of the National Constitution that establishes that the presidents “… may not be reelected in any case …” The article mentioned is under the title of “Duration of the mandate” So if it is intended to modify the constitution to allow re-election, this can´t be done with the amendment procedure, as is established in the article mentioned in the previous paragraph.

Opinions about the interpretation of these articles are divided. In one side, there are jurists and politicians who claims that “re-election doesn´t affect the duration of mandate. It doesn´t change the five years of duration that indicate the constitutions. It only establishes the possibility of having one more period”. Following this interpretation, attempts have been made to amend this provision, by being the fastest route.

In the other side, and according to the interpretation of some jurists, they affirm that “the purpose of the norm by prohibiting the re-election is that the duration of the mandate can be only for 5 years, without the possibility of its extension through a new election[2] Also taking into account the historical moment in which the present constitution was written, that was after the fall of the dictatorship of Stroessner[3], that lasted in the power 35 years. The purpose was to enable current presidents to perpetuate themselves in power througha legal dictatorship, establishing a more complex procedure to deal with the modifications of such delicate issues.

Not in vain Montesquieu said “Power ought to serve as a check to power”. The Constitution sets limits to power. The Judicial Power is the custodian of the Constitution. It interprets, fulfills and enforces the Constitution.[4] However, the members of the Supreme Court of Justice are appointed by the Senate Chamber with the agreement of the President. This makes the “judicial independence” guaranteed in the Constitution[5] vulnerable. In that way, there is a certain mistrust of what the Supreme Court of Justice can determine. So, the question now is, who will defend us?

It is worrying that the interpretations are made according to particular political interests, without taking into account the general interest[6]. Although re-election is a figure that is used in several developed countries of the world, to include it in our law, we must use the legal way, respecting the Supreme Law. Because the violation of the constitution would imply the breaking of the rule of law.

[1] Article 290 of the National Constitution of Paraguay.

[2] Ramirez Candia, Manuel Dejesús; “Constitutional Law of Paraguay, Volume II”, Pag. 528, Intercolor S.R.L. editor, 2011”

[3] Alfredo Stroessner was a paraguayan military, politician and dictator. He was the 48th president of the Republic of Paraguay between August 15, 1954 and February 3, 1989, where he exercised a dictatorship that lasted 35 years.

[4]Article 247 of the National Constitutions of Paraguay.

[5] Article 248 of the National Constitutions of Paraguay.

[6] Article 128 of the National Constitutions of Paraguay.


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

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