Two, three, many constitutional reform processes
by Eric Jackson
On August 9 — Lawyers Day, based on the birthday of Panama’s 19th century hero lawyer, politician and diplomat Justo Arosemena — the nation’s main bar association, the Colegio de Abogados, swore in a new commission to organize a process leading the the convening of a new constitutional convention. This was the third constitutional change initiative announced in the past month and a half.
There is the possibility of a constituent assembly — constituyente or constitutional convention — being called by citizens’ petition. However, there has never been any ballot question election by this form of popular demand. It would take more than 517,000 signatures to compel the government to hold elections for delegates to such an assembly. Jaded Panamanians are wary of signing anything, because they are afraid that their signatures may be used for fraudulent purposes or their name on a petition may make them targets of retaliation by some powerful person or organization. Here people typically join political parties to get or keep government jobs and rarely do so to support some ideology or cause. People will take to the streets — often blocking them — to advance an economic interest or as an ephemeral reaction to a community crisis like a prolonged neighborhood water outage. Widespread popular movements do arise in Panama but they are few and far between.
So will the lawyers go the petition route?
In July the Cambio Democratico party announced that it would begin a petition drive this month to collect the more than half-million signatures needed to call an election for constitutional convention delegates. However, that scandal-plagued outfit is at war with itself in large part over a constitutional disagreement. The exiled party boss, former President Ricardo Martinelli, wants to purge 16 of the 25 CD legislators, while much of the party organization in the country wants to get rid of him. The petition drive is not yet underway. The party’s secretary general Rómulo Roux, who has purportedly been stripped of most of his powers by Martinelli, is going around the country campaigning for the 2019 CD presidential nomination but not saying much about the constitution on his campaign swings. It is expected that Martinelli would put top priority on a constitutional change that would allow himself to run for president again in 2019. It’s probably a set of delusions that CD alone could collect the signatures to force a convention, that delegates promising to weaken the restrictions on presidential re-elections would win a majority of such an assembly, and that Martinelli could ever again be elected to any public office in Panama.
What if CD and the lawyers began separate petition drives, and with each falling short on their own, they collected a combination of more than 517,000 signatures? That would be a novel question of law, but maybe a political logjam breaker. Either the president or a majority of the legislature could call for the election of a constituent assembly and more than half a million people who want one might be a force that they wouldn’t want to resist.
The novel questions of law would also give the politicians room to maneuver and manipulate. Would the elections be partisan or nonpartisan? Would the delegates be elected at large in each province or comarca, or would there be districts, perhaps some version of the weird mix of single-member and multi-member districts by which the National Assembly is elected? These would be questions for the Supreme Court, the legislature and the Electoral Tribunal to decide, and perhaps to bicker about among themselves. (Polls have consistently shown for many years that the high court and the assembly are widely detested, while the electoral magistrates have a somewhat better reputation.)
Can the lawyers get the signatures on their own? Bernal is a veteran campaigner, but he has never pulled off such a monumental feat. Then there is that current of popular opinion that holds the legal profession itself responsible for Panama’s constitutional woes. The endless stream of motions that has kept Martinelli from a Panamanian penal court’s defendants’ dock would be seen as one of the proofs by many people of that opinion. (The blockage that’s keeping the extradition request bottled up in the Ministry of Foreign Relations is just gravy for the legal system, but one of the sources of public discontent with Varela’s administration.)
President Juan Carlos Varela ran for office on a pledge to call a constitutional convention, then backed off because he said that there would be no guarantee of the outcome of such a process. In his July 1 speech at the start of the current legislative session, he said that he would work on a “road map” for constitutional change over the next year. However, Varela’s popularity is declining and his party’s 17-member caucus in a 71-member National Assembly is showing signs of disunity, such that his ability to control the outcome of a constitutional process is doubtful.
Both Cambio Democratico and the PRD have called for a constituent assembly, but both of those parties are bitterly divided to the extent that the faction leaders might hesitate to start a contest in which their prospects would be doubtful. Ordinarily, though, the combined PRD and CD caucuses would have the votes to convene a constitutional convention regardless of Varela’s wishes.
“The usual,” done four times before, would be for a compromise package of constitutional changes around the margins to be passed by the current legislature, then ratified by the legislature elected in 2019. Bernal and many others say that another patch will not suffice. If there is any politically viable partial patch it’s neither obvious nor currently a subject of public discussion. Firing the entire Supreme Court, holding early elections for a new president and legislature and curbing the power of the political parties — all of these ideas are being bandied about. Just not by the president, the legislators, the magistrates or the party bosses.
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