7
the community, represented by the State, over the interest of the individual who must
yield to public requirement.”
(...) Clearly, then, since expropriation is a unilateral act of the expropriating agency
(Congress), as a result of exercising State power, of the “jus imperii”, all the more so
when said act must be expressed in the form of a law, intervention of the owner in actions
of the chambers in the process of expropriation is not in order.
(...) The decision adopted by Congress must be based on concrete facts that generate
that “cause of public or social interest” mentioned in the Constitution, leading the
legislators to the conviction that the expropriation must take place. Congress has the
authority to assess whether in a given situation said “cause of public or social interest”
actually exists and is sufficiently significant to justify the exceptional action to which we
have referred.
(...) In this same regard, the veto by the Executive branch states the following: “As a
logical corollary of this ideal of providing access to landholding for the largest possible
number of countrymen, we must highlight that the spirit of the Constitution reflects
rejection of large scale landholdings, whether or not they are latifundia”...
20.
Involvement of the Legislative branch of government in the two requests for
expropriation of lands of Estancia Loma Verde must be assessed in this legal
framework (para. 8). In the first case, the expropriation bill submitted by Members
of Congress Sonia de León and Rafael Filizzola was withdrawn by means of a
Congressional Resolution, in response to a request by the proponents of the bill,
given the involvement of the Inter-American Commission on Human Rights and the
interest of the Paraguayan State in attaining a friendly settlement.14
The second expropriation request was rejected by the Senate. In this case, the
senators, exercising their constitutional authority, did not find that the social
problems of the Yakye Axa Community could be solved exclusively by expropriation
of the farms mentioned in the bill. The minute of the regular meeting of June 27,
2002 does not reflect non-recognition of the rights of the indigenous community to
landholding, but rather rejection of expropriation of the farms of Estancia Loma
Verde. Senator Rachid Lichi, specifically, mentioned the provisions of Law 904, which
in fact require, for expropriation of private lands, that they be occupied by the
community benefiting from the expropriation.15
21.
When they rejected the aforementioned expropriation bill, the Senators acted
on the basis of the conviction that their decision was based on their constitutional
authority, pursuant to the respective provisions of domestic legislation. However, in
their decision to reject the bill, the Senators did not refer to any of the provisions of
Articles 63 and 64 of the National Constitution, which are not reflected in laws that
enable effective exercise of the rights acknowledged therein.
14
Note by the Members of Congress who proposed the bill, received on
November 17, 2000, file 3886, leaf 2.
15
Minutes of the Regular Meeting of the Senate on June 27, 2002. Payment of
fair compensation for expropriation of a farm with modern facilities, in accordance
with domestic legislation and Article 21 (2) of the American Convention, would in fact
limit the possibility of the State to intervene with the aim of protecting the rights of
other indigenous communities entitled to said protection.
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