In Paraguay, direct public funding is provided for parties. The distribution and allocation of that funding, however, is not entirely transparent. Non-financial state resources were regularly abused during the 2013 campaign, but indirect public funding in the form of free advertising slots was equitably distributed to parties and eligible candidates. Limits cap the amount that individual donors, corporations, foreign sources, and third parties can give to parties, while there are no restrictions on contributions to candidates. Campaign spending is capped only for parties, though in practice, parties employed a variety of strategies to circumvent those caps during the 2013 elections. In terms of reporting requirements, parties are required to submit detailed reports during and outside of campaign periods. In practice, reports often lack the requisite detail, and very little political finance information is made available to the public. Third party actors engaging in partisan campaign activities, especially nonprofits, are present in Paraguay, but their independent expenditures and contributions are not regulated. The Electoral Justice (TSJE) oversees political finance. In practice, appointments to the TSJE are not definitively merit-based, and appointees are not independent of other branches of government. The TSJE did not perform any audits or investigations after the 2013 campaign, nor did it sanction potential violators. Because the TSJE is politically compromised, enforcement is fairly weak.
In law, there is direct public funding for national level electoral campaigns, but only for political parties, movements or alliances. Art. 276 of the Political Finance Law, which modifies art. 276 of the Paraguayan Electoral Code, states that “the state will subsidise the expenses of electoral campaign activities of parties, political movements and alliances the equivalent of 15% of a daily minimum wage((equivalent to roughly $2.50 USD) for different activities not specified for each valid vote obtained to Congress in the last elections“. The article specifies that the corresponding amounts shall be given once parties, political movements and alliances‘ accountability reports and compliance with the control mechanism that the law provides have been duly verified.
No public funding is provided for presidential or vice-presidential candidates.
Art. 3 of the Political Finance Law, which modifies art. 276 of the Paraguayan Electoral Code, states that “the state will subsidise the expenses of electoral campaign activities of parties, political movements and alliances the equivalent of 15% of a daily minimum wage (equivalent to roughly $2.50 USD) for different activities not specified for each valid vote obtained to Congress“ in the last national level elections. No reference is made to individual candidates (president and vice-president). The article specifies that the corresponding amounts shall be given once parties, political movements and alliances‘ accountability reports and compliance with the control mechanism that the law provides have been duly verified.
In regards to the control mechanism, art. 3 of the Political Finance Law, which modifies art. 281 of the Paraguayan Electoral Code establishes that in order to receive direct public funding, campaign managers must keep an account balance of all received funds with the origins of these as well as the expenses. Supporting documentation must accompany this registry. The article specifies that “forty days after election day, [parties, political movements and alliances] must turn in documentation of funds‘ inflow and outflow to the Electoral Tribunal, along with an annexed report of all contributions or donations received detailing their origins and amounts“. After this, the Office of Comptroller General will proceed to audit the accountabilities. Parties, alliances and political movements will have ten days to make any requested clarifications from the Comptroller Office, which will ultimately determine approval or rejection of their accountability reports.
In practice, the allocation mechanism that determines political campaign funds for parties is unclear and is not readily available to the public for scrutiny. The two entities in charge of this, the Ministry of Finance and the Electoral Justice High Court (TSJE), rarely publish how they calculate the sums that parties receive. According to Carmen Romero, people learn about the aggregate amounts that are allocated. However, it is difficult to know whether those amounts correspond or not with what the law stipulates (July 14, 2014).
Loose control mechanisms of parties‘ accountability reports adds to the issue of transparency. In the words of Romero, “the accountability [process] is a fast check. Nobody verifies whether the information is truthful or not“ (July 14, 2014). Therefore, it becomes more difficult to trust that what parties are receiving is in fact what they should get. “The money is turned in after a timid control [process] from TSJE“, concludes a news report. (ABC Color, April 19, 2014).
The criteria for eligibility are usually applied, but exceptions exist. Romero has commented that the political movement she belongs to - Kuña Pyrenda - has received funds, even though little did they know whether they would be eligible or not (July 14, 2014). The coalition Frente Guasu has publicly complained that TSJE did not provide them the electoral campaign funds that they deserve according to law, thus accusing the entity of discrimination (La Nación, May 31, 2014). According to Ricardo Canese, the two major parties, ANR (Colorado Party) and PLRA (Liberal Party) had received their funds in a timely manner. In his view, they were the only ones who had to deal with the issue (July 15, 2014).
Ricardo Canese, Parliamentarian for Mercosur, Frente Guasu Headquarters, Asunción, Personal Interview. July 15, 2014.
Carmen Romero, Fonacide‘s Executive Director, Secretaría Técnica de Planificación Headquarters, Personal Interview. July 14, 2014.
Information about disbursement of funds to political parties is often incomplete and not available on the Internet. Most of the time, citizens learn about these disbursements through the press, sometimes three or four months after the disbursement agencies - the Ministry of Finance and Electoral Justice High Court (TSJE) - provided parties with the electoral funds, as news reports from the period of study testify (April 19 /July 13, 2014). These reports only mention the dates and the total sums that each party or political movement has received, without any more details as to how those sums were calculated.
Another issue at hand is that TSJE has not released the electoral funds all at once. Instead, it has done so at different times. This issue has made it more complicated to monitor disbursements. For instance, the entity has published on its website an account of the first disbursement (November 22, 2013). However, they have failed to publish when they disbursed the remaining funds. It is also important to note that on the only news evidence from TSJE about the first disbursement, all the information that is available relates to the total sums that each party received.
In regards to citizens obtaining this type of information, there are no clear mechanisms in place. Paulo González Paciello, coordinator of the Project Mirador Electoral (Electoral Watch) from Semillas para la Democracia, explains: “The information is not on the Internet...When we called TSJE, they put us through several departments. Then they told us that we have to reach [the Ministry of] Finance to get the information. After we insisted, they told us to file a formal request letter to TSJE, and follow up on that“ (July 16, 2014).
The researcher obtained the disbursement information two days after requesting it via a phone call to the press department at TSJE (August 6, 2014). The reports were sent via email. They contain the amounts that were allocated to parties as electoral subsides. One of the documents refers to the amounts disbursed to the Frente Guasu coalition, with details of the amounts provided as electoral subsides and annual contributions and the disbursement dates.
Paulo Gonzalez Paciello, Coordinator of Proyecto Mirador Electoral, NGO Semillas para la Democracia Office, Asunción, Personal Interview. July 16, 2014.
Carmen Romero, Fonacide‘s Executive Director, Secretatía Técnica de Planificación Headquarters, Personal Interview. July 14, 2014.
Art. 3 of the Political Finance Law, which modifies art. 282 of the Paraguayan Electoral Code, states that for the purpose of collecting funds for electoral campaigns,“parties, political movements and alliances are banned from: a) receiving contributions from any branch of the public administration, autonomous decentralised entities, mixed-economy companies, bi-national entities as well as firms licensees of public works or services, or that deal with gambling games“.
The law does not mention individual candidates, and there's no particular ban on the use of non-financial resources controlled by the state.
Evidence shows that state resources have been used for electoral purposes in Paraguay, favouring some political parties over others. For instance, news reports point at the use of state vehicles before and during election day carrying propaganda of one of the contending political alliances, Alianza Paraguay Alegre, made up of Partido Liberal Radical Auténtico (PLRA) and other minor parties (Ultima Hora, April 20, 2013/ ABC Color, April 21, 2013). Also, newspapers accused the Alliance‘s presidential candidate, Efraín Alegre, of using financial resources from a state entity in order to cover the airplane costs of his electoral campaign (ABC Color, April 7, 2013).
In a similar manner, the mayor of Ciudad del Este, the second biggest city of the country, held a public meeting with municipal workers to urge them to vote for the Colorado Party‘s candidate, Horacio Cartes, inside the headquarters of the municipality. During the meeting, the mayor asked them to support the Party on election day and promised “several rewards“ in the event that Cartes won the Presidency. The Colorado‘s party campaign manager for the province of Alto Paraná and other prominent political figures took part in this activity as well (ABC Color, April 17, 2013).
-Congress had already rejected the purchase in 2002 because the land was found to be unsuitable for agricultural purposes. -The purchase was done on a holiday, quite rare to proceed with such a major financial transaction. -The land belonged to the father of Jorge Oviedo Matto, then president of the Senate chamber and a prominent figure within UNACE. -The purchase took place at the same time that PLRA was seeking UNACEs political support for its presidential candidatee. Negotiations were ongoing at the time of the purchase. -Each hectare of land was valued at US$ 1800. However, INDERT paid the sum US$ 2500.
In spite of the controversy, UNACE ended up providing its political support to Alianza Paraguay Alegre‘s presidential candidate, further fuelling speculation that the illicit transaction was undertaken for electoral purposes (ABC Color, April 2, 2013).
Ricardo Canese, Parliamentarian for Mercosur. Frente Guasu headquarters, Asunción, Personal Interview. July 15, 2014.
Art. 302 grants free access to air time to all parties, political movements and alliances that are registered and running for elections based on the principle of equality. The article states that “in order to foster a process of democratization in the country and civic education of the Paraguayan people, all massive media outlets - oral and televised - will provide three percent of their air time to spread parties, political movements and alliances‘ programs that run for elections, ten days prior to the closure of the electoral campaign. In the same manner, newspapers shall provide one page per edition“. The law covers both presidential and legislative elections.
In general, free access to air time is provided in a transparent and equitable way to candidates in order to promote their platforms. There have been no reports or complaints that the law has not been applied in the last national level elections. In fact, the public broadcasting station urged parties to make written requests to make use of the free air time that by law they should have access to (April 3, 2013).
Some issues remain around the mechanism that allocates free air time according to Carmen Romero, who explains that “the law is clear. However, it does not say anything about the airtime schedule. Hence, ads are aired very late at night sometimes, which is the same as not being on TV“ (July 14, 2014). In the view of Canese, a former campaign official for the Frente Guasu Alliance, says that the amount of free airtime is insignificant in comparison to the amount of time and resources that an electoral campaign demands in terms of propaganda (July 15, 2014).
Cash contributions are permissible, in light of what art. 278 of the Political Finance Law establishes, which states in section C that each party, political movement and alliance that run for general elections is obliged to “open an unique account in a local financial institution, where all collected funds, private or public, will be deposited“. Collected funds can take the form of cash.
There are no differences in the regulation of cash contributions for presidential or legislative elections.
Art. 3 of the Political Finance Law, which modifies art. 282 of the Paraguayan Electoral Code, bans anonymous contributions to political parties, movements and alliances that run for national elections. However, it establishes the following exception: “When collecting funds for electoral campaigns, political parties, movements and alliances are entirely banned from: receiving anonymous contributions or donations, with the exception of those arising from legal proselytistic activities of political parties, that are massive and circumstantial in nature, with the goal of raising revenues to finance electoral campaigns - as long as the amounts raised do not exceed the equivalent of 10,000 (ten thousand) minimum wages for non-specified activities“. Currently, the maximum threshold that the law refers to is equal to US$ 160,919 approximately.
Neither the Paraguayan Electoral Code nor the Political Finance Law refer to in-kind contributions for electoral campaigns and the need to explicitly report these to the authorities. However, the Paraguayan Electoral Code does in fact establish regulations for in-kind goods in general in arts. 63 and 74. The first article states that “Political parties will have to keep in their accountability registry ordinary and extraordinary inflows of funds, goods and in-kind, including details such as date, origin and name of the receiving agency. In the same way should outflows be registered. Art. 74 provides as follows: “Imports of machinery, equipment, materials for graphic printing or audiovisual production with the items required for usage, as well as machinery and IT or office equipment, which are needed for party work, will be exempt from custom duties and any additional. Those goods will be incorporated in the party or political movement‘s accountability report as an asset“. Because accountability reports must then be submitted to the TSJE, in-kind contributions to political parties should, in law, be reported.
Art. 3 of the Political Finance Law, which modifies art. 282 of the Paraguayan Electoral Code, establishes that in collecting funds for a electoral campaign, parties, political movements and alliances are banned from: “receiving contributions or donations from individuals that exceed the equivalent of 7000 (seven thousand) minimum wages for non-specified diverse activities, be them from physical persons or firms“. The threshold equals to US$ 112,643 approximately.
Art. 3 of the Political Finance Law, which also modifies art. 68 of the Paraguayan Electoral Code, states that parties or political movements cannot accept or receive directly or indirectly “anonymous contributions or donations from individuals which exceed the equivalent of 5000 (five thousand) minimum wages for non-specified activities for each financial yearend, be them from natural or legal persons“.
No limit on individual contributions to candidates exists.
Corporations can contribute to political parties, movements and alliances up to a maximum amount in Paraguay. Art. 3 of the Political Finance Law, which modifies art. 282 of the Paraguayan Electoral Code, establishes that in collecting funds for a electoral campaign, parties, political movements and alliances are banned from: “receiving contributions or donations from individuals that exceed the equivalent of 7000 (seven thousand) minimum wages for non-specified diverse activities, be them from physical persons or firms“. The threshold is equal to US$ 112,643 approximately. The same article also bans them from “receiving contributions or donations from [...] mixed-economy companies [...] as well as firms licensees of public works or services [...]“.
No explicit limit on corporate donations to candidates exists.
A ban exists but it applies only to political parties, movements or alliances. Art. 3 of the Political Finance Law, which modifies art. 282 of the Paraguayan Electoral Code, states that in collecting funds for an electoral campaign at the national level, parties, movements or alliances are banned from “receiving contributions from foreign governments, public entities or natural or legal persons, unless they are natural or legal persons that reside in the country“.
Also, art. 3, which modifies art. 68 of the Paraguayan Electoral Code, states that parties or political movements cannot accept or receive directly or indirectly “contributions or donations from foreign entities such as governments, foundations, parties, political movements, institutions and natural or legal persons, unless the natural or legal persons reside in the country and the purpose of the contribution or donation is to cover the costs of the party or political movement‘s activities related to training or research“.
A ban exists by law but only for a majority of third party actors, and it refers to contributions for political parties specifically. Art. 3 of the Political Finance Law, which modifies art. 282 of the Paraguayan Electoral Code, states that in collecting funds for an electoral campaign, parties, political movements and alliances are banned from “receiving contributions from unions, business associations or entities that represent any other economic sector“.
Art. 3 also modifies art. 68 of the Paraguayan Electoral Code, stating that parties or political movements cannot accept or receive directly or indirectly “contributions or donations from employers‘ associations or trade unions“.
Election campaign spending in Paraguay is limited to a maximum amount, but the law only applies refers to parties, political movements and alliances. Art. 5 of the Political Finance Law states: “The maximum amount that parties, political movements and alliances are allowed to spend during national level elections, will be equivalent to 10% of the minimum wage for every authorized voter in the constituency of a candidate or a plurality of candidates“ (2012).
In general, national laws regulating political finance apply to sub-national units. In fact, the Law No 4743/2012 that regulates Political Finance “regulates parties‘ primaries for the election of authorities at the national, departmental and municipal levels“ (Pgs. 8, 9, Rolón Luna, 2013).
Specifically, art. 2 of the Law No 4743/2012 states that “The Law is applicable to: a) The electoral campaigns for the election of national, departmental, municipal authorities and delegates to the constituent convention. b) Parties‘ primary electoral campaigns for the election of authorities in section a). c) Electoral campaigns for referendums e) Parties and political movements annual financial activities“. No reports of problems arising from any gaps in this framework have been found.
Legal articles that establish the allocation procedures for electoral subsidies, contribution limits or bans, accountability processes and others apply to both national level elections as well as departmental and municipal elections (Fischer, July 16, 2014). “It is important to note though that most of the time, electoral expenses at the municipal level far exceed those of at the national level“, explains Estela Ruiz Diaz (July 24, 2014). The reasons behind this can be that the number of candidates that run for posts is higher, thus increasing the amount of party‘ expenditures and making it more difficult to control them. Also, in the absence of international observers, there is more room for transgressing electoral campaign laws and norms.
Peer reviewer comment: Agree - There are no clear examples that indicate that problems arise from gaps in the political finance regulatory framework. There are no complaints about transgressions of established norms. It should be remembered that the financing law is relatively new, and there may not have yet been time for significant violations to occur.
Jorge Rolón Luna, “La nueva Ley de financiación de partidos políticos: El dinero en la política“, Semillas para la Democracia, Asunción, 2013.
The sources of funding for electoral campaigns vary according to each party or political movement. According to an anonymous source who was part of an electoral campaign of one of the major parties, “the fewer resources a party has, the more it depends on electoral subsidies and state contributions. If the party is in power, it has discretionary power over financial resources; it can virtually manipulate the whole state apparatus, through appointments, contracts, work concessions, procurements. Then there are contributions and donations from private firms, who often have business with the state, so they provide a lot of funds“ (July 21, 2014).
-Congress had already discarded the purchase in 2002 because the land was found to be inept for agricultural purposes. -The purchase was done on a holiday, quite rare to proceed with such a major financial transaction. -The land belonged to the father of Jorge Oviedo Matto, then president of the Senate chamber and a prominent figure within UNACE. -The purchase took place at the same time that PLRA was seeking UNACEs political support for its presidential candidatee. Negotiations were ongoing at the time of the purchase. -Each hectare of land was valued at US$ 1800. However, INDERT paid the sum US$ 2500.
Some candidates self-finance their campaigns, the most prominent case being that of Horacio Cartes for the last national-level elections. Ricardo Canese, former financial campaign for the Frente Guasu Alliance, explains that Cartes “invested lots of money that could not be controlled by the oversight authority“ (July 15, 2014). Specifically, he refers to the advertising that Fundación Ñande Paraguay and the consortium of firms Grupo Cartes, both associated to the Colorado Party‘s candidate, put on TV, radio and newspapers outside of the legal time-period for electoral propaganda (Electoral Watch Project, July 14, 2014).
Another important source of funding for electoral campaigns are unregulated loans According to Canese, “the Frente Guasu Alliance contracted loans with banks and lenders. Up to 80% of the cost of the campaign was financed with these funds“ (July 15, 2014). In fact, Frente Guasu senators pushed the Ministry of Finance to receive their corresponding electoral subsidies, since they were overdue with payments to banks (ABC Color, April 17, 2014).
Financial reports from the last elections are unavailable for public scrutiny. However, there are reports that date from years 2004, 2005, and 2006 (see attached). In these, the preponderance of funding appears to come from state contributions. Yet, the category “other contributions“ (see account balance from ANR) is also relevant, but it lacks details over the origin of those funds.
There is evidence that parties violated somes norms of the laws that regulate financial activities during electoral campaigns in the last national level elections, either by avoiding contribution caps or circumventing the regulatory framework.
Parties‘ account balances from the last elections had different issues with the supporting documentation. The High Court of Electoral Justice TSJE made observations, comments and suggestions. For instance, 33% of Alianza Paraguay Alegre‘s documents received feedback from TSJE, and 19% in the case of the Colorado Party (ANR). Partido Encuentro Nacional PEN had 88% of its documentation with remarks from the oversight authority. TSJE‘s management director explained that most of the observations had to do with irregularities that the documents had, such as amendments. However, there is no evidence that parties revised those issues (ABC Color, August 21, 2013).
The Colorado Party circumvented the law through third-party actors, particularly Fundación Ñande Paraguay, associated to the presidential candidate Horacio Cartes. “The operations of this entity were clearly meant to surpass financial regulations and oversight“, said Romy Fischer, member of the Electoral Watch Project. In their final report, this issue is brought up. “The High Court of Electoral Justice cannot audit private organisations as long as their contributions, in the context of electoral campaigns, are not included as part of electoral campaign expenses [...] Fundación Ñande Paraguay clearly influenced elections through advertising campaigns“. Furthermore, the report specified that this entity financed the work of improving the public image of the candidate by positioning him as a successful businessman through propaganda outside of the legal time-period (Pg. 10, July 14, 2014).
Although Law No 4743/2012 that regulates political finance establishes expenditure limits, the oversight authority did not abide by it alleging that it was inapplicable to the 2013 national level elections, even though the law was passed in year 2012. Hence, parties or political alliances did not violate the law as it refers to in the Paraguayan Electoral Code. However, it could be argued that they did since Law 4743/2012 was technically in place at the time of elections.
Peer reviewer comment: Agree - There are no documented cases of violations of the political finance laws except for the cases cited by the researcher.
The law establishes that parties report itemized contributions and expenditures during and outside electoral campaign periods. In regards to electoral campaigns, art. 3 of the Political Finance Law, which modifies art. 281 of the Paraguayan Electoral Code establishes that in order to receive direct public funding, campaign managers must keep an account balance of all received funds with the origins of these as well as the expenses. Supporting documentation must accompany this registry. The article specifies that “forty days after election day, [parties, political movements and alliances] must turn in documentation of funds‘ inflow and outflow to the Electoral Tribunal, along with an annexed report of all contributions or donations received detailing their origins and amounts“. After this, the Office of Comptroller General will proceed to audit the accountability reports. Parties, alliances and political movements will have ten days to make any requested clarifications from the Comptroller Office, which will ultimately determine approval or rejection of their accountability reports.
Outside of the electoral period, art. 66 states that “political parties must turn in their balance, funds‘ inflow and outflow, with an annexed report of received contributions or donations with details of the amounts and their origins to the Electoral Justice High Court [...] within the first ninety days after the fiscal year ended“. The law does not mention candidates.
Political parties, movements and alliances must submit reports of contributions and expenditures once, forty days after the election day. Art. 3 of the Political Finance Law, which modifies art. 281 of the Paraguayan Electoral Code, establishes that ““forty days after election day, [parties, political movements and alliances] must turn in documentation of funds‘ inflow and outflow to the Electoral Tribunal, along with an annexed report of all contributions or donations received detailing their origins and amounts“.
According to Article 154 of the Electoral Code, the official election period is between 90 and 135 days long. This means that parties, movements, and alliances submit one report for each 90 or 135 day period, which amounts to at best quarterly reporting, and at worst, less than quarterly but more than biannually (in reference to the defined campaign period).
Political parties are required by law to report their financial information on a yearly basis, according to art. 3 of the Political Finance Law, which modifies art. 66 of the Paraguayan Electoral Code. According to the law, “political parties must turn in their balance, funds‘ inflow and outflow, with an annexed report of received contributions or donations with details of the amounts and their origins to the Electoral Justice High Court [...] within the first ninety days after the fiscal year ended“.
Individual candidates are not mentioned.
Parties, political movements and alliances are required by law to submit their accountability reports forty days after the election day to the oversight authority. However, even if they have done so, as the High Court of Electoral Justice confirmed they did in the past national level elections (TSJE, June 24, 2013), those reports are not available to the public. The news piece from TSJE details the overall expenditures‘ amounts from 19 political parties, movements and alliances, without much detail as to what exactly parties spent on during their electoral campaigns (June 24, 2013). Similarly, the final report of the Electoral Watch Project provides the same numbers (July 14, 2014). Therefore, there is no evidence to guarantee that parties have reported itemized contributions and expenses.
A FOI request has been filed to the oversight authority on the part of the researcher and staff from NGO Semillas para la Democracia in order to access the actual reports (July 16, 2014). However, there have been no responses as of the final date of the research period (August 11, 2014).
There are, however, account balances from parties that can be studied that date from years 2004, 2005 and 2006 (see attached). The High Court of Electoral Justice released them after a network of NGOs and civil society activists demanded access to this information during those years (August 5, 2014). The account balances are the ones that parties generate at the end of financial year. These contain contain general, rather than itemized details of electoral expenses or contributions. In fact, one of the greatest criticisms from NGOs over these reports was the lack of specific details.
Parties, political movements and alliances are required by law to submit their accountability reports forty days after the election day to the oversight authority, providing precise details over the origins and amounts of all contributions. However, even if they have done so, as the High Court of Electoral Justice confirmed they did in the past national level elections (TSJE, June 24, 2013), those reports are not available to the public. The news piece from TSJE details the overall expenditures‘ amounts from 19 political parties, movements and alliances, without detail as to what exactly parties spent on during their electoral campaigns or what contributions they received, be it in-kind or cash (June 24, 2013). Therefore, there is no evidence to guarantee that parties have reported all types of contributions, and itemized information and the personal identifiers of donors are unavailable.
There are, however, account balances from parties that can be studied that date from years 2004, 2005 and 2006 (see attached). The High Court of Electoral Justice released them after a network of NGOs and civil society activists demanded access to this information during those years (August 5, 2014). The account balances are the ones that parties generate at the end of the financial year nonetheless. These contain general rather than a detailed description of all types of contributions (inflows). There are no specifications about the origin or types of contributions. Instead, these are piled up under the category “General contributions“ or “Other contributions“ (August 5, 2014).
Overall, the veracity of the financial reports is highly questionable. According to an anonymous source who was part of an electoral campaign of one of the major partiess in the past elections, most of the declared contributions and expenses are false: “It‘s all a facade. Parties keep two types of accountabilities. The one they can make public and the one they cannot. We kept these ourselves. Some contributions can be published in those reports, such as a bank loan or the financial support from the Electoral Justice. But not all. The same thing applies to expenses“ (July 21, 2014).
Paulo González, Semillas para la Democracia Headquarters, July 16, 2014, Asunción / In person interview.
The law establishes regulations over the availability of financial information from parties, political movements and alliances. It does not make references to financial information from individual candidates. Art. 3 of the Political Finance Law, which modifies art. 281 of the Paraguayan Electoral Code, states: “[...] Forty days after election day, [parties, political movements and alliances] must turn in documentation of funds‘ inflow and outflow to the Electoral Tribunal, along with an annexed report of all contributions or donations received detailing their origins and amounts. The Electoral Tribunal ought to order their immediate publication on the Website of the High Court of Electoral Justice, freely available for reference, ten days after [the documentation] are received“. No specific format to turn in documentation is mentioned in the law.
Parties, political movements and alliances are required by law to submit their accountability reports forty days after the election day to the oversight authority. These reports ought to be uploaded to the Electoral Justice‘s Website for public scrutiny. However, they could not be found in there. A news entry details the overall expenditures‘ amounts from 19 political parties, movements and alliances, without much detail as to what exactly parties spent on during their electoral campaigns or what they received as contributions (June 24, 2013).
A FOI request has been filed to the oversight authority on the part of the researcher and staff from NGO Semillas para la Democracia in order to access the actual reports without success (July 16, 2014). There have been no responses as of the final date of the research period (August 11, 2014). Alongside, the final report of the Electoral Watch Project brought up the issue around accessing parties‘ account balances (July 14, 2014). The researcher also made requests to parties and alliances (ANR and Alianza Paraguay Alegre specifically) to access their account balances from the last national level elections with no positive results. Rubén Ocampos, former campaign official from Alianza Paraguay Alegre, explained that the Electoral Justice has all the documentation and if needed, requests should be made to the oversight authority (July 21, 2014).
There are, however, account balances from parties that can be studied that date from years 2004, 2005 and 2006 (see attached). The High Court of Electoral Justice released them after a network of NGOs and civil society activists demanded access to this information during those years (August 5, 2014). The account balances are the ones that parties generate at the end of financial year nonetheless.
There are, however, parties‘ account balances that can be studied dating from years 2004, 2005 and 2006 (see attached). The High Court of Electoral Justice released them after a network of NGOs and civil society activists demanded access to this information during those years (August 5, 2014). Judging from these financial papers (see attached), there has been a standarized format in place. Parties reported the following: balance sheet, the situation of income and expenses, and a cash flow statement. It is important to note that none of the reports provide details on the origin of contributions (inflows), dates received or identifiers, and no current data guarantees that a set format is still followed in the reporting of financial information.
Peer reviewer comment: Agree. The financial reports publisehd by parties do not have a standardized format, nor do publications of the electoral justice. Each group presents the reports as they see fit. Both political parties and the electoral justice report only general numbers to the press. For example, as is clear in the article below, they report only money destined for electoral propaganda, but do not clarify that companies were hired for any purpose. They report transaction costs without specifiying the contracted companies. The electoral justice does not publish detailed financial information in most cases, and nor do parties.
Mainstream journalism media outlets frequently use political finance data in their reporting. Estela Ruiz Diaz, journalist from the same newspaper, explained that in fact, it is mostly through media that citizens can learn about political finance data (July 24, 2014). The major independent newspapers, ABC Color and Ultima Hora, and a smaller one, La Nación, have published this type of information in different occasions. For instance, ABC Color noted that parties received their corresponding electoral subsidies from the oversight authority without a throughout auidit of their account balances (April 19, 2013). Earlier on, Ultima Hora published a news story about the amounts of funds and subsidies that each party and alliance should receive according to the law (March 22, 2013).
Related information about political finance have been used by journalists in their reporting. La Nación published a story on how the Frente Guasu Alliance was requesting its due payment to the High Court of Electoral Justice (31 May, 2014). Radio stations have also included this information on their daily news. For instance, Radio Cardinal 730 AM interviewed an advisor of the oversight authority about the procedures in place for parties to receive their annual contributions (May 6, 2014).
In the last elections, parties violated financial regulations after the elections. TSJE announced that some parties, without naming which ones, solicited electoral subsidies without providing all the necessary documentation (Mirador Electoral Final report, July 14, 2014). Also, out of the 36 contending political parties and alliances, only 19 turned in their accountability reports on time (TSJE, June 24, 2013).
The second case showed proof of abuse of financial regulations. In an interview, Frente Guasu‘s former campaign official Ricardo Canese criticised what he considered to be misleading propaganda on TV in favour Horacio Cartes, the Colorado Party‘s presidential candidate aired months before it was legally allowed (July 15, 2014). Through Cartes‘ corporate group, Grupo Cartes, or Fundación Ñande Paraguay, Cartes‘ NGO, TV aired propaganda showcasing the candidate‘s work or ideas without explicitly urging viewers to vote for him but subtly persuading them to do so.
Romy Fischer from the NGO Semillas para la Democracia described the practice as a mechanism that hindered the capacity of TSJE and other monitoring agencies to follow up on the origins of campaign funds, since the advertisements were sponsored by private entities and therefore, not included in the accounts of the campaign (July 16, 2014). In the final report of the NGO‘s project Mirador Electoral, the case is brought up as one of the main issues before the electoral propaganda season officially begun (Mirador Electoral, July 14, 2014).
Peer reviewer comment: Agree. Really there are no other documented cases of violations of the political financing regulations.
Romy Fischer. Projects Coordinator at NGO Semillas para la Democracia, Semillas para la Democracia office, Asunción, Personal Interview. July 16, 2014.
Ricardo Canese. Parliamentarian for Mercosur, Frente Guasu Headquarters, Asunción, Personal Interview. July 15, 2014.
Vote-buying has been a common electoral practice in Paraguay. In the past elections, the Office of the Public Prosecutor as well as media outlets reported some cases, including a high-profile one that involved a senator in Congress. A journalist commented that a resident from Horqueta, a city in the north of the country, announced that the mayor had been receiving people in his house on election day to pay them cash in exchange of votes for the Colorado Party (ABC Color, April 21, 2013). On a macro level, the Office declared that 80 complaints were filled on that day, which included cases of bribery and voter coercion (ABC Color, April 21, 2013).
The most flagrant case revealed a larger scheme of vote-buying four days before the elections. On video, senator Silvio Ovelar from the Colorado Party (ANR), who was also running for re-election to Congress, is caught offering a cash deal to a leader from PLRA in order to scare off PLRA voters and thus provide advantage to his party. Ovelar explains that he would pay Gs 100,000 - about US$ 22 - to each person that votes for the Colorady Party, and the same amount to each “liberal“ - from PLRA - that does not show up at the polling stations. He proposes to the leader that he help him keep liberales at home:“...For each [liberal] voter that stays at home, you get Gs. 100,000...20 (liberales) stay, 2 million go for you; 30, 3 million go for you“. After media outlets published the video, the senator confirmed the veracity of its content. However, he argued that it was a mechanism to expose how liberales were selling their votes. (Ultima Hora, April 19, 2013). A public outcry ensued and the senator was suspended for 60 days. He was re-elected for another term in Congress nevertheless.
Ricardo Canese. Frente Guasu Parliamentarian at Mercosur, Frente Guasu Headquarters, Asunción, Personal Interview. July 15, 2014.
The NGO Semillas para la Democracia has officially used and published financial information from electoral campaigns as part of the Electoral Watch Project. The final report of the project, titled “How much do elections cost?“, comprises the estimated expenses of parties, political movements and alliances on publicity during the last national level elections. It also contains the accountabiilty reports that parties officially turned in to the High Court of Electoral Justice after the elections, in order to compare those numbers with the ones that the NGO gathered in its work (July 14, 2014).
Romy Fischer explains that they estimated expenses using the market price of ads on TV and press, while taking note of the number of times that parties‘ ads appeared on these news outlets. “So our numbers do not truly reflect the real amounts that parties spent on political propaganda during the electoral period“ (July 16, 2014). The results were published on newspapers, highlighting the bigger role that money plays in politics (Ultima Hora, February 2, 2013/ ABC Color, November 8, 2013).
In the past ten years, there has been one major legal reform regarding political finance, which took place in year 2012. The reform modified 15 articles of the Paraguayan Electoral Code through the Law No 4743/12 with the aim of regulating financial activities of parties, political movements and alliances. “In 2008, a coalition of CSOs and political parties‘ representatives pushed for more robust financial regulations, so we drafted a new bill proposal. After four years, the bill was passed in Congress“, said Carmen Romero, former coordinator of the Network for the Regulation of Political Finance (July 14, 2014). In a descriptive report, Rolón Luna explained the larger goal of the bill: “The new legal framework establishe[d] a series of new restrictions, requirements and obligations in the search for more transparency around the functioning of parties and political movements“ (Pg. 8, 2013).
The Law No 4743/12 “That Regulates Political Finance“ introduced changes to articles 62, 64, 66, 68, 70, 71, 72, 276, 278, 279, 280, 281, 282, 330 and 336 of the Paraguayan Electoral Code. Rolón Luna emphasised some of the most relevant ones. “[The Law] regulates partisan primaries for national level elections [...]. Also, parties are obliged to keep initialled and foliated documents to provide written record of all natural and legal persons that make contributions or donations [art. 62]. At the same time, party authorities must now keep proof of payments and other documentation related to their accountabilities for six years [art. 64]“ (pg. 9, 2013).
Other important aspects that the Law established are the requirement of turning in all supporting documentation of parties‘ accountabilities in order to receive state funding (art. 276). At the same time, art. 5 establishes a limit to electoral spending during national level campaigns. Sanctions to violations of this limit are also included in art. 9.
The Law still faced some difficulties in its application. Firstly, the oversight authority, the High Court of Electoral Justice TSJE, did not to abide by it during the last national elections (2013), arguing that the new legal framework was inapplicable for that electoral cycle (Romero, July 14. 2014). Alongside, TSJE‘S coordinator of the 2013 general elections, Carlos Maria Ljubetic, questioned the effectiveness of the law. “This new law can easily be circumvented by politicians with administrative tricks“ (ABC Color, October 24, 2013). According to Rolón Luna, these claims set a negative precedent. “Technicians at TSJE have done little to adopt [the new law], they simply ignore it, which is a very serious issue that affects the institutions of the republic and the very legitimacy of the electoral process“ (Pg. 15, 2013).
Peer reviewer comment: Agree - The researcher's account is correct. The law of 4743 of Political Financing took at least five years of discussion in Congress. It was presented in 2007 by a group of members of different political parties and even was on the verge of being rejected. In mid-2011, as part of a settlement between the Patria Querida party and the Colorado Party for the election of the Board of Directors of the Chamber of Deputies, passage of the law was agreed. Also at that time emerged the figure of Horacio Cartes, a successful entrepreneur with significant financial resources as a possible candidate for President for the Colorado Party. That generated fear on the part of liberal politicians who were in power. As a result, they finally strongly supported standards to control spending in the presidential campaign.
Jorge Rolón Luna. “La nueva Ley de financiación de partidos políticos. El dinero en la política“. Semillas para la Democracia, Asunción, 2013.
Third-party actors in Paraguay never report itemized contributions received or expenditures to the oversight authority. Neither the Paraguayan Electoral Code not the Political Finance Law regulate the activities of these types of institutions, even though they do exist and operate in favour of certain parties. “The purpose of these organizations is precisely to cover up electoral finances“ (academic who requested anonymity, July 21, 2014).
The most prominent case of an NGO that worked in favour of a presidential candidate in the past national level elections is that of Fundación Ñande Paraguay and the consortium of firms Grupo Cartes, linked to the ANR‘s Horacio Cartes. “This foundation [Fundación Ñande Paraguay] easily operated without restrictions or auditing to the benefit of Cartes“ (source who requested anonymity, July 21, 2014). The final report of the Electoral Watch Project regarded this issue as one of the greatest obstacles to political finance transparency. “The High Court of Electoral Justice cannot audit private organisations as long as their contributions, in the context of electoral campaigns, are not included as part of electoral campaign expenses [...] the Grupo Cartes and Fundación Ñande Paraguay clearly influenced elections through advertising campaigns“. The report specified that these two entities financed the work of improving the public image of the candidate by positioning him as a successful businessman through propaganda (Pg. 10, July 14, 2014).
The Secretary-Treasurer at the oversight authority explained that he could not recall receiving financial reports from these types entities. “They operate as private institutions. We cannot control their financial activities for this reason“ (August 6, 2014).
Anonymous source who was part of an electoral campaign of one of the major parties, July 21, 2014, Asunción / In person interview.
Access to financial information from third-party actors in Paraguay by citizens or journalists is rarely possible. This information is not publicly available. Neither the Paraguayan Electoral Code not the Political Finance Law regulate the activities of these organizations even though they do exist and operate in favour of certain parties. According to a journalist, “they [foundations] do not report to the oversight authority. It is not possible to access their financial records. They work as if they were private entities“ (Estela Ruiz Diaz, July 24, 2014).
The most prominent case of an NGO that worked in favour of a presidential candidate in the past national level elections is that of Fundación Ñande Paraguay, linked to the ANR‘s Horacio Cartes. The final report of the Electoral Watch Project regarded this issue as one of the greatest obstacles to achieve political finance transparency. “The High Court of Electoral Justice cannot audit private organisations as long as their contributions, in the context of electoral campaigns, are not included as part of electoral campaign expenses [...] Fundación Ñande Paraguay clearly influenced elections through advertising campaigns“. The report specified that this entity financed the work of improving the public image of the candidate by positioning him as a successful businessman through propaganda (Pg. 10, July 14, 2014). Currently, the website of the foundation does not disclose any type of financial information, and the land phone no longer works for assistance (August 5, 2014).
Non-profit organizations such as foundations are the most common type of third-party actors in Paraguay that work to support political parties and influence their electoral campaigns. These entities are not regulated by the country‘s laws, thus it is hard to provide a list of well-identified third-party actors or to learn about their expenditures and how they are managed during the electoral season.
However, a number of third-party actors can be singled out, such as Fundación Ñande Paraguay, which has been explicitly associated to the Colorado Party‘s presidential candidate Horacio Cartes, or Fundación Jerovia, which has carried out workshops with the Frente Guasu Alliance, or Fundación Libertad, closely associated to the Liberal Party and specifically to Alfredo Jaeggli, a former senator of the same party.
In general, third-party actors serve to spread a party‘s platform through conferences, workshops, working groups, rallies, or raise funds by requesting aid from international organisations, and in some cases, keep some of the parties‘ financial transactions out of reach from the oversight authority. According to an anonymous source with expertise in the subject, “the purpose of these organizations is precisely to cover up electoral finances“ (July 21, 2014).
The importance of these actors appears to be relative. For instance, Ricardo Canese, former campaign manager for the Frente Guasu Alliance, considers that the expenses or contributions of these entities are insignificant. “Their contributions and expenditures probably represent no more than 1% of an elections‘ budget“, he claims (July 15, 2014). However, cases like Fundación Ñande Paraguay prove that they can also play a crucial role in campaigns.
Fundación Ñande Paraguay clearly influenced the electoral campaign of former Colorado Party‘s candidate Horacio Cartes by circumventing the law. “This foundation [Fundación Ñande Paraguay] easily operated without restrictions or auditing to the benefit of Cartes“ (academic who requested anonymity, July 21, 2014). The final report of the Electoral Watch Project regarded this issue as one of the greatest obstacles to achieve political finance transparency. “The High Court of Electoral Justice cannot audit private organisations as long as their contributions, in the context of electoral campaigns, are not included as part of electoral campaign expenses [...] Fundación Ñande Paraguay clearly influenced elections through advertising campaigns“. Furthermore, the report specified that this entity financed the work of improving the public image of the candidate by positioning him as a successful businessman through propaganda outside of the legal time-period (Pg. 10, July 14, 2014).
Political finance information is monitored by an oversight authority that does not depend on the Executive or Legislative branches.The National Constitution grants this power to the Electoral Justice in art. 273: “[The acts of] convening, judging, organizing, directing, supervising and monitoring all acts and matters related to general, departmental and municipal elections, as well as the rights and titles of those who were elected, are the exclusive jurisdiction of the Electoral Justice. Matters related to popular consultation as well as elections and parties and political movements‘ functioning are also under its jurisdiction“.
Within the Electoral Justice, the Electoral Supervisors are the figures entrusted with the duty to send cases to public prosecution without approval from the executive or legislative branches. Art. 24 of Law No 635/95 establishes that the obligations of the Supervisors are: “To ensure compliance with the Constitution, the Electoral Code and the Law; to intervene and judge representing the whole of society on electoral matters; to act ex-officio or at the request of a party on electoral misdemeanours; to take part on financial control and auditing of parties, political movements and alliances‘ functioning [...]“.
Art. 3 of the Political Finance Law, which modifies arts. 66 and 281 of the Paraguayan Electoral Code, specifies that parties, political movements and alliances have to provide financial information annually and during electoral campaigns to the Electoral Justice, more precisely to the Electoral Tribunal and the High Court of Electoral Justice. Art. 66 states: “political parties must turn in their balance, funds‘ inflow and outflow, with an annexed report of received contributions or donations with details of the amounts and their origins to the Electoral Justice High Court [...] within the first ninety days after the fiscal year ended“.
Art. 281 establishes the following: “Forty days after election day, [parties, political movements and alliances] must turn in documentation of funds‘ inflow and outflow to the Electoral Tribunal, along with an annexed report of all contributions or donations received detailing their origins and amounts. The Electoral Tribunal ought to order their immediate publication on the Website of the High Court of Electoral Justice, freely available for reference, ten days after [the documentation] are received“.
The same article names the General Comptroller Office as another entity in charge of oversight of financial information. It states that “the Electoral Tribunal will give sixty days to the General Comptroller Office to audit the final accountability reports with ten more days for parties, political movements and alliances to respond to questions [...]“. The General Comptroller Office is an autonomous entity established by the Constitution in charge of monitoring all economic and financial activities of the state.
Note that law mandates that audits and investigations are activities entrusted to the electoral supervisors, who are organically part of the Public Prosecutor‘s Office. The law does not specify whether they should report back on its findings to the TSJE.
In law, high-level appointments to the oversight authority, which in Paraguay‘s case is the High Court of Electoral Justice TSJE, are based on merit, but regulations do not forbid appointments involving conflict of interests nor is a public process for the appointments envisaged by law. The National Constitution establishes in art. 275 that members of TSJE need to fullfill the following requisites: “have to be of Paraguayan nationality, be 35 years of age, have earned a degree in Law, and for ten years at least, have effectively exercised the profession, or have served in the judicial magistracy or an university chair in matters related to law, altogether, separately or alternatively“. No reference is made to conflict of interests or biases.
In regards to the appointment process, art. 275 states that three members of the oversight authority “will be elected and removed in the same manner as the ministers of the Supreme Court of Justice“. Art. 258 of the National Constitution, however, does not specify how the ministers of the Supreme Court ought to be elected.
Appointments to the oversight authority in Paraguay are never carried out through a public competition process, and appointees are rarely selected without conflicts of interests or biases. Romy Fischer explains that members of the High Court of Electoral Justice TSJE are elected based on “cupos políticos“ or political quotas. This means that they are loyal or represent political parties (July 16, 2014).
An anonymous source who was part of an electoral campaign of one of the major parties further elaborates on the logic behind the appointment procedure: “Appointees are never elected based on merit. When the law was created, the Electoral Board, which was the institution that would become the High Court of Electoral Justice, was mainly controlled by the Colorado Party [ANR]. So there had to be equilibrium, we needed to compensate. [It was thought] that we should let other parties put their people as well. We designed a three members‘ system: one member proposed by the Colorado Party, one member from the opposition, and a third member of mutual agreement, that would help solve disputes in case they would arise“ (July 21, 2014).
In fact, Ricardo Canese, parlamentarian for Mercosur and former campaign manager of the Frente Guasu alliance, claims that the principle of “plurality“ has been violated with the new appointments that took place recently at TSJE. “The third member of TSJE had to be one from Frente Guasu. Before it was someone from Partido Encuentro Nacional PEN or UNACE“. Before the national elections took place, the former presidential candidate for Frente Guasu publicly demanded that the third member of TSJE be the lawyer Emilio Camacho (February 8, 2013).
In August 9, 2013, the Senate picked two new members to the oversight authority in a closed parliamentary session. Journalists, graphic reporters and others were forced to leave the room where senators would discuss the appointments. According to media, “the session rendered no surprises“, with the election of Maria Elena Wapenka and Jaime Bestard, each one associated with Partido Encuentro Nacional and the Colorado Party respectively (ABC Color, August 9, 2013).
Romy Fischer, Projects Coordinator at NGO Semillas para la Democracia, Semillas para la Democracia Headquarters, July 16, 2014, Asunción / In person.
In law, the independence of members of the High Court of Electoral Justice is moderately guaranted. Security of tenure is granted according to art. 275 of the Constitution, which establishes the same removal process as for the members of the Supreme Court of Justice in art. 261 of the National Constitution: “[The members of the High Court of Electoral Justice] will finish their mandate at the age of seventy five“. Members could also be removed via impeachment, but there is no reference to an independent oversight authority in charge of such a procedure.
Appointees are the highest authority in all matters related to elections. Law No 635/95 states that “The High Court of Electoral Justice will be responsible for the direction and auditing of the electoral register and the administration of the financial resources assigned by the Finance Ministry“.
Article 24 reiterates this power, as does Article 3 of the Political Finance Law.
High-level appointees of the oversight authority are rarely independent. They often operate favouring major political parties. Ricardo Canese explains: “What is guaranteed is the dependence [of high-level appointees] to the political parties from which they come from, since that is the way they manage to get elected“ (July 15, 2014). Similarly, Romy Fischer suggests that members of the High Court of Electoral Justice are appointed via “cupos políticos“ or political quotas, meaning that they are fundamentally loyal to parties (July 16, 2014).
A current academic and former campaign official for Alianza Paraguay Alegre explains that when the three-member system of the High Court was designed in the 1990s - whereby one member would be proposed by the Colorado Party, the other one by the Liberal Party, and the third would be of mutual agreement between the parties -, there was still an expectation of honorability on the part of the appointees. “However, that has changed now. Appointees have entirely degraded the system“ (July 21, 2014).
A case in point took place in the last national elections that brought to light the questionable integrity and independence of Juan Manuel Morales, then member of the High Court. At noon during election day, Morales appeared on television to announce that “liberales“ (members of the PLRA Party) would have to accept the results of the elections, since the Colorado Party‘s presidential candidate Horacio Cartes had a clear advantage over the PLRA‘s candidate at that time of the day (ABC Color, April 21, 2013). His declaration not only violated exit polls restrictions, but also demonstrated the partiality of a member of the High Court. Morales was sanctioned with a prohibition to take part in the judgement process and in announcement of the winners of the elections (ABC Color, April 24, 2013).
The oversight authority, the High Court of Electoral Justice (TSJE) is made up of three members: a president, a vice-president and a member. In order to take decisions, two out of the three of them have to agree (Romy Fischer, July 16, 2014). Their positions are held annually. Law No 635/95, art. 5 establishes that “the High Court of Electoral Justice is the supreme authority in electoral matters and that its resolutions could only be challenged by an action of unconstitutionality“. The same law also states that TSJE is responsible for the direction and auditing of the electoral register and the management of resources assigned in the general budget for electoral purposes. These tasks are carried out by the authority.
According to a current academic, the decision making process is essentially tied to political interests. “The three member system is designed so that there will be one member proposed by the party-in-power, one member from the opposition, and a third member of mutual agreement, that would help solve disputes in case they would arise“ (July 21, 2014). Romy Fischer adds that members of the High Court of Electoral Justice are appointed via “cupos políticos“ or political quotas, meaning that they are fundamentally loyal to parties (July 16, 2014).
The decision-making process has been qualified as politicized from the very election of the members of the oversight authority. Ricardo Canese, parlamentarian for Mercosur and former campaign manager of the Frente Guasu alliance, claims that the principle of “plurality“ has been violated with the new appointments that took place recently at TSJE (July 15, 2014). Some newspapers suggested that the appointment of Jaime Bestard and Elena Wapenka to the oversight authority was the result of a political agreement between the Colorado and Liberal parties (La Nación, August 9, 2013).
The Electoral Justice has sufficient budget and staff to review and monitor all incoming reports. The entity is run by 4,300 public servants approximately, and it is one of the few offices that has managed to trim down its budget in 2014 by 19% (Paraguay.com, September 30, 2013). Ruiz Diaz emphasises this point: “The Electoral Justice is by far one of the most well-budgeted institutions in Paraguay. It is rare to see an institution willing to receive less financial resources, and the Electoral Justice is one those that has had the capacity to do so“ (July 24).
The entity has reviewed the parties‘ financial reports from the last national elections. It issued comments and suggestions over the quality of the documents that parties turned in their accountability reports (ABC Color, August 21, 2013). However, no evidence shows that parties had to follow the entity‘s recommendations. In any case, if the Electoral Justice fails to monitor and review all incoming reports properly is a matter of political willingness. “They do not want to antagonize political parties, so they do not proceed with a throughout review, as they should“ (Interviewee who requested anonymity, July 30, 2014). According to Fischer, “they |Electoral Justice workers| sometimes allege that they cannot review all documents properly because there is not an standardised format. However, this would not be an issue should they enforce legislation properly, which they can“ (July 16, 2014).
Estela Ruiz Diaz, Journalist at Ultima Hora Newspaper, July 24, 2014, Asunción / In person.
No evidence has shown that the authority has conducted investigations or audits. The High Court of Electoral Justice TSJE has issued observations, comments and suggestions over the financial documentation that parties turned in after national elections. For instance, 33% of Alianza Paraguay Alegre‘s documents received feedback from TSJE, and 19% in the case of the Colorado Party (ANR). Partido Encuentro Nacional PEN had 88% of its documentation with remarks from the oversight authority. TSJE‘s management director explained that most of the observations had to do with irregularities that the documents had, such as amendments. However, he explained that only electoral prosecutors could provide recommendations of sanctions in these cases (ABC Color, August 21, 2013).
Rubén Ocampos, former campaign manager of the Alianza Paraguay Alegre, could not recall any instances when the TSJE carried out investigations into finance matters in the last elections (July 21, 2014). Similarly, Romy Fischer said that in spite of the large proportion of observations that TSJE issued over the financial reports, no audits took place as they should have (July 16, 2015).
Romy Fischer, Projects Coordinator at NGO Semillas para la Democracia, Semillas para la Democracia Headquarters, July 16, 2014, Asunción/In person interview.
The results of investigations or audits beyond an initial compliance review or administrative audit are not available to the public. The High Court of Electoral Justice TSJE has issued observations, comments and suggestions over the financial documentation that parties turned in after national elections. For instance, 33% of Alianza Paraguay Alegre‘s documents received feedback from TSJE, and 19% in the case of the Colorado Party (ANR). Partido Encuentro Nacional PEN had 88% of its documentation remarked upon by the oversight authority. TSJE‘s management director explained that most of the observations had to do with irregularities that the documents had, such as amendments. However, he explained that only electoral prosecutors could provide recommendations of sanctions in these cases (ABC Color, August 21, 2013). There is no available evidence that investigations have taken place beyond this point.
Rubén Ocampos, former campaign manager of the Alianza Paraguay Alegre, could not recall any instances when the TSJE carried forward investigations over finance in the last elections (July 21, 2014). Similarly, Romy Fischer said that in spite of the large proportion of observations that TSJE issued over the financial reports, no audits took place as they should have (July 16, 2015).
Violations and sanctions in regards to political finance are established in art. 3 of the Political Finance Law, which modifies arts. 281, 330 and 336 of the Paraguayan Electoral Code. Art. 281 states that campaign managers‘ failure to turn in proper accountability documentation (funds‘ inflow and outflow) after national level elections have taken place to the Electoral Tribunal “will result in suspension of contribution, subsidies or subvention on the part of the State for up to three years and two elections, according to each individual case“.
Art. 330 specifies the following: “The campaign manager or the party‘s competent authority, who, in order to deceive, falsifies or manipulates any of the control mechanisms of the accountability [...], would have committed the punishable act of Production of Public Documents with False Content, under art. 250 of the Penal Code“. Art. 250 of the Penal Code establishes prison sentences of five to ten years for this violation.
The National Constitution grants the power to impose sanctions independently to the Electoral Justice in art. 273: “[The acts of] convening, judging, organizing, directing, supervising and monitoring all acts and matters related to general, departmental and municipal elections, as well as the rights and titles of those who were elected, are the exclusive jurisdiction of the Electoral Justice. Matters related to popular consultation as well as elections and parties and political movements‘ functioning are also under its jurisdiction“.
Since sanctions are rarely or never imposed when political finance violations are committed, it is hard to judge whether offenders comply or not. “For years, the Electoral Justice has shown proof that it lacks will when it comes to controlling the use of money that parties and political movements receive in the form of contributions and subsidies“, argues Rolón Luna (pg. 15, 2013).
If observations are issued by the oversight authority in regards to financial reports or financial activities, there is no evidence that parties, political movements or alliances have proceeded to change. For instance, 33% of Alianza Paraguay Alegre‘s documents received feedback from TSJE, and 19% in the case of the Colorado Party (ANR). Partido Encuentro Nacional PEN had 88% of its documentation with remarks from the oversight authority. TSJE‘s management director explained that most of the observations had to do with irregularities that the documents had, such as amendments (Electoral Watch Project, July 14, 2014). However, he explained that only electoral prosecutors could provide recommendations of sanctions in these cases (ABC Color, August 21, 2013). In spite of the relatively high level of observations, parties still received electoral subsidies and contributions from TSJE (Romy Fischer, July 16, 2014/ ABC Color, July 14, 2014).
The main conditions that prevent effective enforcement of political finance regulations are the lack of political independence of the members at the oversight authority, weak norms and the emergence of new funding strategies for electoral campaigns that effectively circumvent monitoring.
“For years, the Electoral Justice has shown proof that it lacks will when it comes to controlling the use of money that parties and political movements receive in the form of contributions and subsidies“, argues Rolón Luna (pg. 15, 2013). In fact, technicians at the oversight authority sought to discredit the Law No 4743/12 “That Regulates Political Finance“ by questioning its effectiveness (ABC Color, October 24, 2013). Furthermore, the Electoral Justice refused to abide by that law during the last national-level elections, arguing that it was inapplicable at that time, even though the law was passed in 2012 (Rolón Luna, pg. 16, 2013).
Political influence is an obstacle to effective enforcement. The entity in charge of applying the law is politically controlled by the parties that are precisely the ones that violate the law. If sanctions exist, they are not imposed. The authorities have all the incentives to avoid the imposition of sanctions (academic who requested anonymity, July 21, 2014). Romy Fischer also considers that sanctions are weak or inapplicable. In worse cases, some norms prohibit some activities without providing sanctions or without laying out proper procedures to sanction violations (July 16, 2014).
Finally, new extra-party mechanisms for funding have been incorporated, making it harder to monitor political finance activities. “The High Court of Electoral Justice is unable to audit private organizations as long as their expenses are not declared as electoral expenses“ (Electoral Watch Project Final Report, July 14, 2014). For instance, Grupo Cartes, a consortium of private firms linked to the Colorado Party‘s presidential candidate, advertised his work on TV, radio and press months before it was legally allowed to publicise for electoral purposes. These expenses were not included in the official accountability of the party.
Peer reviewer comment: Agree - The political financing law is still very new, with just one election held since its entry into force in 2012. Even so there is always some doubt that the judges will apply the legally obligated responses to purported violations--the justice system in Paraguay is always under suspicion, and often associated with corruption.
This new standard should first be applied, after which necessary adjustments can be made. Indeed, Carlos Soler, a former Congressman and one of the promoters of the new law, said the legislation should now be applied to see how it works.
Reviewer's sources: Carlos Soler, personal interview, 24 September, 2014.
Paraguay's electoral system is characterized by a directly elected president, who serves as the head of state, and a bicameral legislature. In presidential campaigns, the candidate receiving the most votes is declared the winner. Presidents serve for one non-renewable five year term. Campaign funds are collected and managed at the party level. Horacio Cartes of the center-right Colorado Party is the current president, having been elected in 2013.
The legislature, or Congress, is made up of the Chamber of Deputies and the Chamber of Senators. The Chamber of Deputies has 80 members, each of which is elected via proportional representation on closed party lists at the provincial level. The 45 Senators are also elected proportionally via closed party lists, and they run on a nationwide basis. Members of both houses are elected for five year terms. Electoral campaigns in both houses are funded and managed at the party level.
The Colorado Party currently controls both houses, while the Radical Liberal Party is the dominant opposition force. Legislative and presidential elections are held concurrently every five years.


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§8-301 STREETS; BUILDING MATERIALS AND EQUIPMENT. (1) Persons engaged in the erection, construction, reconstruction, wrecking or repairing of any building or the construction or repair of any sidewalk along any street, may occupy the public space with building materials and equipment as provided herein. Such persons shall make written application to the Street Commissioner to so occupy the public space desired.
§8-304 STREETS; EAVES AND GUTTER SPOUTS. (1) It is hereby declared unlawful for any person to erect or maintain any dwelling house or business building within the corporate limits of the Municipality, where the dwelling or building abuts on any sidewalk or street without providing proper guttering and cave spouts to receive the waste waters that drip on the streets and sidewalks of the Municipality. It shall be the duty of every person erecting or maintaining any dwelling house, or business building within the Municipality that abuts on any sidewalk or street, to provide suitable guttering and cave spouts to receive the waste waters that drip on any sidewalk or street.
(2) All eave spouts erected on any dwelling house or business building within the Municipality, shall be constructed to drain properly.
§8-305 STREETS; PLOWING UP STREETS. It shall be unlawful for any person to plow up any of the public highways, streets or alleys of the Municipality.
§8-306 STREETS; GASOLINE PUMPS. No gasoline pump shall hereafter be constructed, located or installed in the sidewalk space along any street within the Municipality, and the construction, location or installation of any gasoline pump or any storage tank connected therewith beyond the building line or lot line or the servicing of any motor vehicle while standing beyond the building line or lot line of any portion of any street is hereby prohibited.
§8-307 STREETS; HARMFUL LIQUIDS. It shall be unlawful for any person to place or permit to leak in the gutter or upon any street pavement in the City, any waste gasoline, kerosene, high lubricating oils or other liquids which harm or deteriorate the pavement.
§8-308 STREETS; MIXING CONCRETE. It shall be unlawful for any person to mix any concrete or plastering materials directly on the pavement or to use the pavement as a mixing board for such materials.
§8-309 STREETS; MANHOLES. It shall be unlawful for any person to use any manhole in the streets and alleys of the Municipality for anchorage or for any purpose other than that for which it was built. No person except the Sewer Commissioner or his duly authorized agents, shall enter or open any such manhole.
§8-310 STREETS; STAKE MARKS. It shall be unlawful for any person to break, remove or destroy any stone or stake, landmark or corner that marks any street, block, lot or public ground, except by proper authority.
§8-312 STREETS; GRADES ESTABLISHED. The grades for curb lines heretofore established for the City of Henderson are hereby incorporated by reference in this section the same as though spread at large herein.
§8-313 STREETS; GRADING. The Municipality may provide for the grading of any street, avenue or alley only upon the affirmative vote of two-thirds (2/3) of the City Council.
§8-316 STREETS; EXCAVATIONS. (1) No person other than the Street Commissioner or employees under supervision of the Street Commissioner or plumbers working under construction permits, shall excavate or open any street, alley or other public grounds in the Municipality except as herein provided. Such work will not be begun without first obtaining a permit to do so through the Municipal Clerk.
§8-318 STREETS; PAVING CONSTRUCTION, NOTICE; PERMIT REQUIRED; UNDERGROUND CONNECTIONS; ASSESSMENTS. (1) Whenever a street or alley or a part thereof is to be put under contract for paving or repaving, the Municipal Clerk shall notify the owners in fee simple of real estate abutting said street or alley, and their tenants or lessees, and also all telephone companies, all gas companies and all sewer service patrons by publication or otherwise of the purpose of the Municipality to pave. The notice herein required shall be published one (1) time in a legal newspaper published in and of general circulation in the Municipality at least twenty (20) days prior to the beginning of the operation by the party having the work under construction; and the notice shall state at what date construction must be made and excavation completed.
(2) After such date, permits for excavation will not be issued nor will excavation be allowed until after the completion of the pavement in such street or alley and after the formal and final acceptance thereof by the proper officials of the Municipality.
(3) All sewer construction shall be assessed as a special assessment against the property served. All gas and telephone connections shall be constructed at the expense of the public service company using the same. All water connections shall be constructed at the expense of the Municipality and may be allocated to intersection cost in the paving district.
§8-319 STREETS; DRIVEWAYS AND APRONS; PERMISSION REQUIRED; NOTICE. (1) It shall be and is hereby declared unlawful for any person or persons to construct or cause to be constructed in the Municipality, any driveway or apron over the curb and corner of the streets and avenues without specific permission from the zoning administrator.
§8-321 STREETS; REFILLING EXCAVATIONS. It shall be unlawful for any person to make an excavation in any street or streets of the Municipality for any purpose whatsoever, if and when permitted and allowed, without thoroughly tamping and refilling the same in such manner as the City Engineer shall prescribe and direct.
§8-322 STREETS; VALLEY GUTTERS; MARKINGS. (1) Valley gutters now or hereafter constructed may be permitted to remain in street areas between curb lines if necessary from an engineering standpoint to facilitate the carving away of surface water in its natural course.
(2) The Governing Body shall, by appropriate sign or standard, give the driving public notice of the presence of said valley gutters if it is deemed necessary to insure the maintenance of the street or streets on which they are established, in reasonably safe condition for public travel.
§8-323 STREETS; DRIVING OVER NEWLY LAID PAVEMENT. No person shall ride or drive any animal or vehicle over or across any pavement newly laid or repaired, across or around which there has been placed a barricade, or at or near which there is a person or sign warning persons against riding or driving over such pavement.
§8-324 STREETS; EXCAVATIONS; BARRICADES REQUIRED Excavation in streets and alleys shall be made in such manner as to impede travel as little as possible. Red lights shall be maintained on all unfinished work, at night, from dark until sunrise, and sufficient barricades shall be in place at all times until the work is completed, to prevent any persons from injury, in coming upon or crossing such work.
§8-325 STREETS; SURPLUS MATERIAL REMOVED. After completion of any job or work all surplus material must be removed at once from the streets and alleys.
§8-326 STREETS; DEPOSITING REFUSE. It shall be unlawful for any persons to deposit any trash, refuse, straw, hay, ashes or carcass in any street or alley and it shall be the duty of the Street Commissioner to at once notify any person so offending and aside from any penal liability it shall be the duty of such person to at once remove such refuse or other matter so deposited, and whenever unable to comply with the removal of such matter and the cleaning of the street or alley it shall be the duty of the Street Commissioner to remove and clean up same at the expense of the Municipality.

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This case involved a gang homicide so the prosecution called questionable witnesses (the kind you get in gang cases) who changed their testimony in some instances. And of course the panel thought the jury was unaware of this after listening to the testimony of all the witnesses, observing their demeanor and considering the argument of defense counsel-the same argument he made to the 9th Circuit panel. The panel heard nothing from any witness, saw no witnesses, and knows nothing about the case except from reading a cold record. The jury decided the case having considered all the evidence presented at trial and unanimously found the defendant guilty. Not in the 9th Circuit. They liked the defense better-as in the Smith case reversed three times by the Supreme Court.
Defense counsel tried to establish a third person had committed the crime, and produced enough evidence to convince the jury his client was not guilty. The jury made the decision in favor of the prosecution but the 9th Circuit panel explained why jurors made a mistake.
Part of the evidence linking Aguilar with the murder consisted of testimony from an expert witness explaining results of a dog scent test. Subsequent to the homicide, police had removed clothes from an impounded white car matching a description by eye witnesses who testified the male driver had exited the vehicle, shot the victim and fled. According to the expert witness, the test of the clothes found in the car was positive in identifying Aguilar as an occupant of the vehicle, but the prosecutor failed to disclose evidence that the dog had been previously mistaken in an unrelated case. That information had been brought to the attention of the District Attorney but the test results had not been revealed to defense counsel in the Aguilar case.
Police found no fingerprints in the white car and the prosecutor could produce no forensic evidence resulting from a search of Aguilar’s dwelling. Although the prosecutor submitted the vast majority of the testimony of other witnesses, who admittedly conflicted, he argued to the jury the importance of the expert witness who testified to the results of the dog scent.
Obviously the failure of the prosecutor to provide defense counsel with evidence of a prior mistaken dog scent in a criminal case violated the Brady rule. Whether failure to disclose exculpatory evidence is sufficent to void an otherwise error free trial is arguable, but that is not the test. On habeas corpus the Supreme Court has repeatedly lashed the 9th Circuit for ignoring AEDPA, and that is precisely the issue in Aguilar. This case is a gross misinterpretation of AEDPA. and its statutory demand of deference to state court decisions.
The jury listened to all the witnesses and were fully cognizent of the inconsistencies in testimony. The jurors concluded the defendant was guilty and there is sufficient evidence to support that decision. The California Court of Appeal and California Supreme Court read the same record as the 9th Circuit judges, and the state court opinions are not “unreasonable” under AEDPA. Disagreement by an appellate court opinion on habeas corpus under AEDPA is irrelevant.
The Aguilar case should be reheard or, if denied, reviewed on cert. to the Supreme Court.
Incontrovertible evidence established Schad had strangled the victim breaking his neck, stealing his car, and using his ATM card to buy jewelry. At the time of his trial, Schad was on parole for similar conduct committed in a previous case. Convicted in the instant case in1979 and his conviction and sentence affirmed on appeal by the state court – including denial of a claim for ineffective assistance of counsel- Schad filed a habeas petition in federal court. Petition denied but reversed on appeal by the 9th Circuit; that decison was reversed by the Supreme Court and remanded. Schad’s subsequent attempt to set aside the conviction again succeeded in the 9th Circuit, and again the Supreme Court reversed, remanded and ordered the 9th Circuit to reconsider in light of Cullen v. Pinholster, 131 S.Ct. 2388 (2011).
In Cullen v. Pinholster the Supreme Court court had verbally lashed the 9th Circuit for allowing evidence in a federal habeas petition never previously presented in state court. This 9th Circuit practice had become applicable in numerous of its criminal cases. In most instances, the state court had committed no legal error at trial or on appeal , and the petition alleged ineffective assistance of counsel. The 9th Circuit permitted petitioners to introduce entirely new evidence on federal habeas The Supreme Court wrote Cullen to terminate this egregiously unfair practice.
After remand in Schad, the majority 2-1 panel affirmed the conviction and sentence 671 F.3d 708 (9th Cir. 2011) but later, on its own initiative, reconsidered this decision affirming the state court and the corresponding denial of habeas by the district court. The panel justified its “reconsideration” based upon an unrelated Supreme Court case permitting a habeas court to hear and consider allegations that defense counsel failed to provide effective assistance of counsel and, as a consequence, the petitioner did not procedurally default in state court. Martinez v. Ryan, 132 S.Ct. 1309 (2012). Despite repeated comparable habeas allegations denied in state and federal courts alleging ineffective assistance of counsel, the panel considered “new evidence” to establish no procedural default had occurred.
Note: after the draft of this case was written, the Supreme Court reversed the 9th Circuit in another case; Ryan v. James. A death penalty case, the favorite 9th Circuit method of finding ineffective assistance of counsel, was reversed by the Supreme Court in a per curiam opinion. The Supreme Court remanded the case for the 9th Circuit to reconsider its Ryan opinion in “the light of Johnson v. Williams.” A 1981 9th Circuit case (James v. Ryan, 679 F.3d 780 (9th Cir. 2012).reversed by the Supreme Court in 2013. Ryan v. James, 133 S.Ct. 1088 (2013).
The 9th Circuit continues its reversal record in Johnson v. Williams that would have been incredibly unjust to the prosecution and the people of California. Fortunately the Supreme Court reversed.
A procedural decision, Johnson is the type of case of little interest to the public, but significant to criminal procedure in general and the appellate process in particular. If the pundits and critics of the death penalty want to know the cause for delay in courts, they can cite this case as another example of embarrassing rulings by the 9th Circuit. The Supreme Court reversal is so obvious the reader may wonder about the integrity of some members of the Ninth Circuit who wrote the reversed the original decision entitled Williams v. Johnson, 646 F.3d 626 (9th Cir. 2011).
Charged with felony murder (underlying felony is robbery) of a store clerk, the evidence in Williams was not in question. Williams admitted at trial that she was the driver of a getaway vehicle but did not enter the store and thought her companions who actually killed the store clerk had entered just to “case” the place.
The jury disbelieved her 11-1 in a few hours. During jury deliberations the jury foreman informed the judge that the holdout juror mentioned “jury nullification, worried about the severity of the penalty, and held a very reasonable doubt (not the legal test of “reasonable doubt).” The judge interviewed the jury foreman, all the members of the jury, and the one holdout. Concluding the juror was refusing to comply with the law, the judge excused him. The replacement juror voted for conviction.
Williams appealed to the California Court of Appeal, and the Justices wrote their opinion citing a recent California Supreme Court case on the law of excusing holdout jurors. The state appellate court concluded the juror excusal was justified for “cause” under California law and not because he held out based on the evidence. Conviction affirmed. Williams’ habeas corpus petition in U.S. District Court was denied and she appealed.
The 9th Circuit held the state court had not considered the federal claims of the Sixth Amendment right to a jury trial. California law parallels federal law on the Sixth Amendment but the California Court of Appeal did not mention it in their opinion although they extensively discussed the subject of jury excusal under California.law. Absent any record the state court had considered the Sixth Amendment, the 9th Circuit panel reversed.
Inexcusable decision. The case was a routine criminal trial; the defendant only denied her complicity in the actual murder despite driving the getaway car with two companions who had just killed the store clerk and fled the scene with her. The jury disbelieved the defendant. One juror worried about extraneous issues, including the severity of the penalty-which a juror is not entitled to consider. The trial judge carefully examined the jurors and made a decision to excuse the holdout.
Reversed by the Supreme Court. Unanimously. The Justices engaged in technical questions of appellate practice involving the appropriate methodology for federal courts to review a state court judgment on habeas corpus. Although the Supreme Court decision discusses the failure of state courts to always cite federal court decisions (except of the Supreme Court) in their decisions, they are are not bound to follow them. A state court judgment on appeal is presumed correct although rebuttal is occasionally possible. The federal court decisions do not call for review of state court appeals unless lhe error is egregious.
Justice Scalia concurs in the Supreme Court opinion but asserts the state court judgments on the merits are enough and a review of whether they omitted to include specific federal claims is irrelevant. He points out that the decison in this case allowing rebuttal of state courtdecisions will continue to allow federal courts, and the 9th Circuit in particular, a loophole they are sure to exploit.
The most damaging part of the 9th Circuit decision is this language from the Supreme Court: ” The possibility that the California Court of Appeal had simply overlooked Williams’ Sixth Amendment claim apparently did not occur to anyone until that issue was raised by two judges during the oral argument in the Ninth Circuit.” This comment is evidence of deplorable juducial conduct.

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§ 108.1 Filing requirements (52 U.S.C. 30113(a)(1)).
§ 108.2 Filing copies of reports and statements in connection with the campaign of any candidate seeking nomination for election to the Office of President or Vice-President (52 U.S.C. 30113(a)(2)).
§ 108.3 Filing copies of reports and statements in connection with the campaign of any congressional candidate (52 U.S.C. 30113(a)(2)).
§ 108.4 Filing copies of reports by committees other than principal campaign committees (52 U.S.C. 30113(a)(2)).
§ 108.5 Time and manner of filing copies (52 U.S.C. 30104(a)(2)).
§ 108.6 Duties of State officers (52 U.S.C. 30113(b)).
§ 108.7 Effect on State law (52 U.S.C. 30143).
§ 108.8 Exemption for the District of Columbia.
a. (a) The provisions of the Federal Election Campaign Act of 1971, as amended, and rules and regulations issued thereunder, supersede and preempt any provision of State law with respect to election to Federal office.
3. (3) Limitation on contributions and expenditures regarding Federal candidates and political committees.
6. (6) Application of State law to the funds used for the purchase or construction of a State or local party office building to the extent described in 11 CFR 300.35.
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