Recently, the Supreme Court of Justice (“CSJ”) upheld the first unconstitutionality actions filed against Law No. 6355/19 (the “Law”) by which shareholders, directors, managing partners or similar national or foreign companies and entities that wish to submit bids in bidding processes and/or are contractors or concessionaires of the Paraguayan State, are required to submit an affidavit stating their assets and income, namely assets and liabilities under the same terms and conditions as those provided for State officials and Government’s employees.
Previously, the CSJ had granted precautionary measures to suspend the effects of the Law in countless cases filed by several contractors and bidders in public tenders.
The members of the CSJ have rightly resolved now, by majority vote, the substantive issue on the grounds that the provisions contained in the aforementioned body of law collide with constitutional precepts by attempting to extend the scope of the Law to subjects who carry out their activities in the private sector, by compelling them to comply with a legal requirement that is exclusively applicable to State officials. An infringement to the provisions of Article 104 of the Constitution was generated by the contested Law, since the scope of application of the presentation of the affidavits was expanded within the framework of all the bidding processes and at all their stages, extending the obligation to other subjects not bound by the Constitutional provision; consequently, it violated the principle of Supremacy of the Constitution established in its own Article 137.
In line with the foregoing, the judicial resolutions recently issued by the CSJ also reject the intervention that the Law confers to the Office of the Comptroller General of the Republic regarding the obligation to provide this institution with information and access to files, papers and records, since this effectively violates the right to privacy and documentary ownership which are guarantees established in Article 283 of the National Constitution.
In short, with the pronouncement of the CSJ on the substantive issue, jurisprudence is established on res judicata. The jurisdictional analysis carried out is not only reduced to the control and rejection of the laws that infringe the constitution, this also implies the reconstruction of the constitutional legal system in order to preserve its validity, compatibility and constitutional guarantees.
For more information contact dahiana.acosta@berke.com.py or martin.carlevaro@berke.com.py
