Brazil & Southern Cone - April 2012 (ISSN 1741-4431)

Paraguay’s senate has unexpectedly reignited a latent problem affecting the country’s judiciary system. Its decision that the majority of the supreme court (CSJ) judges should be replaced has triggered an institutional crisis after the CSJ rejected the resolution, prompting a stand off not only between the executive and judiciary branches but also between the ruling coalition and the opposition. There has been political paralysis in Paraguay for the best part of four years now.

On 12 April the senate resolved that seven (of the nine) CSJ judges, including the CSJ president, whose five-year terms expired in 2010, must be replaced. The judges were retained in their posts following a political deal between Paraguay’s two largest parties, Partido Liberal Radical Auténtico (PLRA) and Asociación Nacional Republicana-Partido Colorado (ANR-PC), after neither party was able to ratify their preferred replacement nominees in the divided senate.

This stalemate in the senate is the result of the political transition that took place in Paraguay following the historic electoral defeat of the ANR-PC, which until 2008 had ruled the country for 61 years continuously. Although the PLRA-led coalition won the 2008 presidential election with Fernando Lugo, the ANR-PC retained a small majority in the senate, allowing it to stymie attempts to change the political composition of the CSJ.

In total the ANR-PC has seven judges in the CSJ and it is determined to fiercely defend this substantial majority. The prospect of a major institutional crisis forced the PLRA to agree to the deal in the first place by which the judges would be allowed to remain in place until further notice. Subsequently, the CSJ ruled that its judges were “immovable” in order to prevent any legal challenges against them.

However, in an astute political manoeuvre, the PLRA managed to covertly introduce the issue onto the senate agenda and then secured the support of the opposition Partido Patria Querida (PQ) and Unión Nacional de Ciudadanos Eticos (Unace) to muster the necessary 27 votes to pass the resolution calling for the removal of the judges, even after the ANR-PC Senators left the chamber in protest. Senator Miguel Abdón Saguier (PLRA) introduced the initiative, which determined that the term of the seven judges in question had indeed expired; and said that since they were never re-ratified in their posts by the senate they must be replaced.

The resolution affects five ANR-PC judges, including the CSJ president Víctor Núñez and two PLRA judges. Núñez has declared the resolution “unconstitutional” arguing the senate cannot intervene in the judiciary and so cannot force the CSJ to replace its judges. The CSJ’s organic laws stipulate that the court itself must determine whether there are any vacancies to be filled.

Nevertheless, Saguier counters that the constitution clearly sets down a five year term for CSJ judges; and also that the nominees must be ratified by the senate, regardless of the CSJ’s internal regulations.

The ANR-PC also rejected the senate resolution, describing it as “an affront to constitutional order”, adding (with no apparent irony) that it represented an attempt to create a “tailor made supreme court”. It warned that the senate’s decision could lead to “a serious political crisis”. More ominously, the ANR-PC’s president, Lilian Samaniego, who on 10 April announced her bid to become the ANR-PC’s next presidential candidate, said that the decision would “create institutional chaos” which could put the upcoming 2013 presidential elections “at risk”. Samaniego immediately called on the people to be ready “to defend institutionality”.

• CSJ strikes back

On 17 April, the president of Paraguay’s supreme court (CSJ), Víctor Núñez, asked the public ministry to launch an investigation into all the senators that voted in favour of the latest resolution, accusing them of “attacking the constitutional order and coercing constitutional entities”. Núñez cited constitutional Article 248, which states that in addition to the penalties prescribed by law for these crimes, “those that threaten the independence of judiciary and its magistrates will be disqualified from holding public office for five consecutive years”. Núñez and his colleagues maintain that they can only be removed via impeachment and that they are willing to take the case to the Organization of American States if necessary.