How to recover its institutionality?
This report is an abridged version of CODEHUPY’s report Defender al pueblo: ¿Qué hacer para recuperar la institucionalidad del ombudsman? For reasons of space, most of the examples and anecdotes have been omitted, which is unfortunate since they constitute glaring examples of the lack of institutional probity of the office. Examples that show how the office has become a center of political clientelism, without any kind of accountability or adherence to its human rights goals.
ORIGIN AND FUNCTIONS OF THE OFFICE:
The Ombudsman’s Office was created by the Constitution of the Republic of 1992, after the end of Alfredo Stroessner’s 35 years of dictatorship, inspired by the Defensoría del Pueblo established in the Spanish Constitution of 1978. The Paraguayan Magna Carta defines the Ombudsman as “a parliamentary commissioner whose functions are the defense of human rights, the channeling of popular claims and the protection of community interests. Under no circumstances he will have judicial function nor executive competence”. It also establishes that the Ombudsman “will not be able to form part of any power of the state power or exercise any partisan political activity”, a relevant point, as we will see the office has become an extension of the ruling ANR party.
In March 2019 the Accreditation Subcommittee of the Global Alliance of National Human Rights Institutions (GANHRI) conferred the Ombudsman’s Office of Paraguay a B status. This certification means that the institution is not completely independent and does not meet its mandate, in accordance with the Paris Principles. Specifically, the negative qualification was based on several reasons: the appointment process of the holder is not comprehensive and transparent enough, the process removal is neither independent nor objective, the entity does not have a reasonable level of funding, does not exercise the mandate of encourage the ratification of human rights treaties, and does not interact with international human rights protection systems submitting reports and/or communications, supporting or participating in the missions of the special public procedures, and supervising or promoting compliance with international recommendations and regulations, among other recommendations.
GANHRI is not alone in its negative evaluation of the office; other UN treaty bodies, such as CEDAW (Committee on the Elimination of Discrimination against Women), the Committee on Migrant Workers, and the Human Rights Committee, have expressed their concerns about the office.
As we can see, there is consensus that the Paraguayan Ombudsman’s Office does not fulfill its constitutional mission and is not independent of the partisan and political structure of the Government that it must control. Starting from this premise, Codehupy seeks to respond to two challenges: to diagnose which were the distortions of institutional practice that have led us to this catastrophic scenario, and what must be done to recover the institutionality of this key piece of the national system for the protection of human rights.
MAIN FINDINGS OF THE REPORT
The Ombudsman’s Office is a key cog in the “machine room” of the Paraguayan Constitution of 1992. Its institutional design sought to strengthen a system of checks and balances, with
state functions compartmentalized into separate powers. It was created so that the Legislative Power —the incarnation par excellence of popular representation—could control the powers of the administration and the justice systems, the maximum expressions of the concentration of power to enforce the law.
This counterbalance was planned in an area of great importance and sensitivity: human rights. For this reason, the extreme degradation suffered by this institution, and the consequent loss of its constitutional meaning, affects disproportionately the essence of democracy.
It constitutes an incomprehensible waiver of a constitutional faculty of the Legislative Branch over the Executive Branch and the Judiciary, representing a cession in favor of the concentration of power, and in loss of popular representation. It is as if the Legislative relinquish his constitutional power to impeach or abdicate of its power to render constitutional agreements.
It is a catastrophic scenario founded, mainly, by three institutional problems: lack of political independence, especially regarding the designation of the Ombudsman; distortions of its mission and its mandate; and issues related to resources and their management.
Lack of political independence of the institution
The lack of political independence of the Ombudsman’s Office is primarily caused by the appointment process, that has been characterized by its lack of transparency and selection of candidates not based on suitability but on political allegiances. This situation affects the designation of mandate holders who, subsequently, manage the institution in ways that distorted its purposes.
Regarding the designation of the Ombudsman and the Deputy Ombudsman, the Constitution establishes that the Senate must propose a shortlist of three candidates, which must be evaluated by the Chamber of Representatives. If a two-thirds majority is achieved in the lower house, the authorities of the Ombudsman’s Office (Ombudsman and Deputy Ombudsman) are elected. In case of not reaching that majority, the process goes back to the Senate. The short list proposed by the Chamber of Senators must be sent to the lower house within forty-five days of the beginning of the constitutional legislative period. In turn, the Chamber of Representatives has forty-five days to choose one of the candidates.
Considering that the elected legislature begins the legislative period in the month of July of the year in which the elections were held, the shortlist should be formed by mid-August and the appointment by the lower chamber should happen at the end of September of the same year.
This process has been severely flawed since the creation of the office: due to the lack of political agreement, the office remained vacant from 1993 to 2001, when a former public officer during Stroessner’s dictatorship was elected Ombudsman, position that occupied until 2016. The successor, Miguel Godoy, facing impeachment, presented his resignation in 2022.
The tendencies observed in the selection processes has been the following:
• “Dependent” applications. Due to the lack of political pluralism in the Legislative Branch, the hegemonic party of Government ends up imposing its majority in the Senate to occlude the possibility of independent candidacies, forming shortlists in which all the members are related to the government party or are directly part of its cadres.
• “Negotiated” designations. Closed the possibility of independent candidacies, the bench of the government party in the Chamber of Representatives negotiate with a minority party the votes needed for the designation, to reach the necessary numbers for the two-thirds required. Sometimes the negotiation included the assignment of the post of Deputy Ombudsman, or another constitutionally appointed position or, in the worst cases, in exchange of support for some other legal initiatives.
A key element of this distortion it is the deliberate non-existence of regulations, making the process vulnerable to political collusion. Also, the requirements of suitability are practically non-existent.
As a constitutional principle, suitability, understood as a set of competencies and technical, legal, and moral skills, must be the basis for access to non-elective public functions. This principle obliges whoever arranges for the appointment of a person in the function to verify prior compliance with selection procedures and accreditation of suitability.
Distortions regarding mission and mandate
The Constitution establishes that the Ombudsman has no administrative or judicial jurisdiction. In practice, however, the office performs some administrative functions that end up overlapping with units of the Executive Power, therefore losing its constitutional mission of control and counterpower. This situation is mainly caused for two distortions:
• Erroneous welfare management assumed by the holders. The authorities assume functions that correspond to other units. This could be solved designating people suitable for the positions.
• Laws that assign the Office administrative roles, against the mandate constitutional. In particular, the laws regarding the management systems of two key human rights public policies: compensation to victims of the dictatorship, and conscientious objection to military service, added to the superintendency of the substitute civil service. These functions should be transferred to the portfolio of the Executive Power that is in charge of the internal policy on human rights, the Ministry of Justice.
Term of office:
There are two main distortions regarding the mandate:
• Period. The political decision to extend the mandate beyond the legislature that appoints the Ombudsman.
• Continuity. The incorporation of the unconstitutional principle of tacit renewal, which enables the Ombudsman to continue in office despite having an expired mandate.
Poor quality of public spending and poor financial management:
The institution has reasonable financial resources, with a level of public financing similar or even higher than other units of administrative control or human rights. However, it presents deficiencies in terms of the quality of spending and demonstrates vulnerability to corruption.
More than three quarters of the expenditures go to personnel expenses (staff salaries) and covert expenditures (private health insurance, per diem and travel costs), at the expense of sufficient resources for operations in all the territory.
The staff is characterized by:
• Being numerous.
• Having entered without going through a public competitive examination.
• Not having specific qualifications in human rights.
• Receiving non-competitive wages.
• Being highly feminized, but not as consequence of an affirmative action or preferred hiring policy, but as consequence of poor remunerations and precarious work conditions.
• Presenting a preference bias towards affiliates to the ruling political party.
• Not having a legal framework for civil service.
The last point makes the administrative management highly vulnerable to corruption. Access to public service in the institution could be flawed, using prebendary criteria. The fact that there is an overrepresentation of staff affiliated to the ruling Colorado party would support this suspicion. Two-thirds of the staff members are affiliated to the ruling party, a higher percentage than observed in the national electoral roll and in the whole population of the country.
This situation leads to the conclusion that even if a suitable person is designated as head of the unit, it will not be possible to advance in the recovery of the institutional framework of the Ombudsman’s Office if this incompetent staff stays in place.
Based on the findings, there are basic recommendations aimed at recovering the institutionality of the Ombudsman’s Office. These measures should be considered as a minimal program, almost a precondition, for the institution to redirecting itself and assuming its role as a national institution responsible for the defense of human rights.
Recommendations related to independence of the institution
• The Chamber of Senators must regulate by resolution the process and selection of the shortlist for the position of Ombudsman. This regulation must contemplate, at least the following aspects:
1. Wide dissemination of the call.
2. Publicity of the whole process.
3. Institutionalization of participation and independent oversight of representatives of civil society and recognized human rights defense organizations by the State, in public hearings, in the
evaluation of merits and in the selection of the shortlist.
4. Incorporation as requirements for the candidates:
a) Experience in areas related to compliance of the constitutional mandate of the Ombudsman’s Office, in accordance with the Paris Principles; and b) have recognized merits in the defense of human rights and an unimpeachable reputation.
5. A regulated system for evaluating candidacies based on predetermined criteria and objectives, and accessible to the public.
6. A selection method that requires nominating candidates who provide services in their own capacity individual, and not on behalf of the organization or political party to which they represent or belong as affiliates.
• The Legislative Branch must modify the Organic Law of the Ombudsman, to incorporate as requirements to be appointed to the position of Ombudsman: a) Experience in areas related to compliance of the constitutional mandate of the Ombudsman’s Office, in accordance with the Paris Principles; and b) Have recognized merits in the defense of human rights and unimpeachable reputation.
• The political parties —especially the opposition parties—must optimize their electoral results, strengthening political plurality in the legislative chambers and, thus, reflecting the political diversity of the society.
Recommendations related to term of office
• The next legislature, to be installed in the general elections of 2023, must designate an Ombudsman and a Deputy Ombudsman following the established procedures, correcting the currently unconstitutional distortion in force due to a bad practice of the political system.
• From that election onwards, the constitutional precept which orders that the term of office of the Ombudsman of the People coincides with the legislature that appointed him/her must be respected.
• The Legislative Power must repeal the law that establishes the postponement of the mandate until the designation of a new Ombudsman.
Recommendations related to distortion of the constitutional mandate
• The Legislative Power must modify the laws that give the Ombudsman’s Office unconstitutional administrative functions. These functions should be transferred to the Ministry of Justice.
Recommendations related to institutional strengthening:
In the medium term, after the appointment of a new mandate holder:
• The Ombudsman’s Office, in coordination with the Ministry of the Treasury, must carry out a reengineering of the staff. The permanent staff plant must be reduced, guaranteeing competitive wages competitive to attract professionals with high profile and specialization in human rights.
• The current list of appointees must be discharged and indemnified, without prejudice to their right to return to the institution through a public competitive examination.
• The Ombudsman must renounce the action of unconstitutionality raised against the Law of the Public Function and apply the regulation to guarantee the appointment of staff through transparent and egalitarian conditions, on the basis of suitability, through public competition.
• The Ombudsman must guarantee the staff stability and the validity of labor rights in the Office.
The report Defender al pueblo: ¿Qué hacer para recuperar la institucionalidad del ombudsman? makes a clear and compelling case on the lack of institutionality of the Paraguayan Ombudsman’s Office. The work needed to guide the office into its legitimate purpose is much and urgent; it is responsibility of the political system and of the people of Paraguay in general to demand the State for the implementation of the improvements recommended in this study.
It is also a call to relevant international stakeholders to resort to all the ways and means of interstate accountability on human rights in order to encourage Paraguay’s government to fulfill its commitments regarding its National Human Rights Institution.