Supreme Court of Paraguay, Application of unconstitutionality raised by the Central Unitaria de Trabajadores (CUT) and the Central Nacional de Trabajadores (CNT) v. Presidential decree No. 16769, 23 September 2000, Case No. 35
National Constitution of Paraguay
Article 137, paragraph 1
The highest law of the Republic is the Constitution. This, the treaties, international conventions and agreements adopted and ratified, the laws adopted by Congress and other legal provisions of lower hierarchy, make up domestic positive law in the order of precedence given.
Duly negotiated international treaties, adopted by law by Congress and whose instruments of ratification were exchanged or deposited, form part of the domestic legal regulations with the hierarchy determined by Article 137.
Lacking legal or contractual labour norms precisely applicable to the case under discussion, the case shall be resolved in accordance with equity, the general principles of the labour law, provisions of International Labour Organization Conventions applicable to Paraguay, principles of common law not contrary to those of the labour law, doctrine and case law and custom or local use.
Freedom of association
Reference to international law to strengthen a decision based on domestic law
Freedom of association/ Presidential decree that establishes procedures for election of leaders of workers’ organizations/ Reference to international law to strengthen a decision based on domestic law
The applicant trade unions made application of unconstitutionality against a presidential decree, through which norms were established for the election of the leaders of trade unions.2 The applicants alleged that the presidential decree violated the Constitution with regard to principles of freedom of association.
In order to determine whether the provisions of the presidential decree to regulate the election of trade union leaders were unconstitutional, the Supreme Court studied the National Constitution3 and used ILO Convention No. 87,4 which guarantees the effective autonomy of the organizations to elect freely their representatives and establishes, in addition, abstention from any intervention by the public authority.
The Court considered that, based on that international Convention, the presidential decree in which specific norms are established that regulate trade union elections in detail constituted a limitation on the right of trade unions to elect freely their leaders and was an undue interference by public authority.
The Supreme Court decided as follows:
“With the subject given in the title of the presidential decree, that of establishing rules for the election of trade union leaders, the trade union status of those whose statutes do not meet the requirements is cancelled, new bodies are incorporated into the trade union electoral system, the administrative authority for labour is allowed to intervene in the formation of those bodies, (…) the way to draft the rules is established (…), deadlines are set for duties and claims, the means for forcing federations and confederations to let the Ministry of Labour know in advance the rules that they use are established, (…) the date of convocation is set, its publication in newspapers is ordered and the obligation to appoint delegates is imposed. As for candidatures, it is possible for the administrative authority for labour to take charge of the elections under certain circumstances (…)”
Likewise, the Supreme Court stated:
“With the presidential decree, there is no intention to implement the constitutional provision, but to eliminate rights consecrated in the Constitution itself and in international conventions entered into by Paraguay (Article 97 and concordant with the National Constitution and ILO Convention No. 87, Articles 3, 4, 7).5 In addition to violating the National Constitution, the presidential decree in question also contradicts provisions of ILO Convention No. 87 concerning Freedom of Association and the Protection of the Right of Organise.” The Court then expressly cited Articles 2 and 3 of that Convention.6
As a result, the Supreme Court of Paraguay based its decision on the National Constitution and made reference to ILO Convention No. 87 rejecting the presidential decree, declaring it unconstitutional, because it established norms and procedures for the election of trade union leaders, interfering in the right of organizations to elect freely their representatives.
3 Article 97 of the Constitution of Paraguay: “Trade unions have the right to promote collective actions and to enter into conventions concerning work conditions. The Government shall promote conciliatory solutions of labour conflicts and social harmony. Arbitration shall be optional.”
4 According to the Constitution of Paraguay, international conventions trump domestic laws. Article 137(1) of the Constitution: “The highest law of the Republic is the Constitution. This, the treaties, international conventions and agreements adopted and ratified, the laws adopted by Congress and other legal provisions of lower hierarchy, make up domestic positive law in the order of precedence given.”
5 Article 3(1) of Convention No. 87: “Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.”
Article 3(2) of Convention No. 87: “The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”
Article 4 of Convention No. 87: “Workers’ and employers’ organisations shall not be liable to be dissolved or suspended by administrative authority.”
Article 7 of Convention No. 87: “The acquisition of legal personality by workers’ and employers’ organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 hereof.”
6 Article 2 of Convention No. 87: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”