The collapse in public confidence in national institutions, the emerging arithmetic of the 2004 elections and a boost from the Catholic Church has taken the movement for a new constitution from the province of political gadflies to center stage in Panama’s national discourse. That does not mean, however, that those with a vested interest in keeping things in their present state are about to concede defeat.
The movement to convoke a constituent assembly to write a new constitution gained force in mid-August, when the Foro 2020, an alliance of civic groups with the backing of Panama’s Catholic heirarchy, called for the inclusion of a “fifth ballot” in the May 2, 2004 election, which would ask the voters whether they would favor the convocation of a constituent assembly to write a new constitution.
Presently, the constitution may be amended if two successive Legislative Assemblies approve specific amendments, or if amendments are put to the voters in a referendum through resolutions passed by the legislature and signed by the president and then approved by the voters. The present constitution was adopted in 1972 by an assembly of all the nation’s representantes (municipal council members) held under the sponsorship of the military dictatorship that held power at the time, and has been amended several times since then. The present constitutional processes for changes all depend on the support of the political parties and most particularly the legislature, whose members derive substantial privileges from current order.
Panama got new constitutions in 1941 and 1946, the former in a process controlled by then-President Arnulfo Arias and the latter by way of a constituent assembly that set itself up as the supreme legislative power for three years. The 1941 constitution incorporated certain social rights into Panama’s fundamental legal order for the first time, and granted women suffrage and other rights that they lacked before. However, it also stripped all Panamanians of Asian, Middle Eastern or West Indian descent of their citizenship, even if they and their parents had been born in this country. That constitution was abrogated after being in effect for less than a year, when Arias flew to Cuba for a liaison with his mistress and a US Embassy concerned about his tilt toward the Axis powers instigated his vice-president, the legislature and the Guardia Nacional to use his absence from the country as an excuse for his bloodless overthrow. The 1946 constitution, which was passed under the influence of General José Remón, kept some of aspects of Arias’s charter but provided that every person born in Panama is a citizen if he or she wants to be.
At this point there is a major hurdle to be surmounted if a constituent assembly is to be convened: the present constitution and laws provide no rules as to how this might be done. Would the delegates be chosen by corregimiento or circuit, at large on a provincial level, or at large on the national level? Would the candidates be nominated by the political parties or in a non-partisan process? Would the constituent assembly have the power to take superintending control over the current governmental institutions, or would its prerogatives be strictly limited to drafting a new constitution to be submitted to the voters? While the submission of the idea of a constituent assembly to the voters in a referendum next year would require little more than a resolution approved by the legislative assembly and signed by the president, the mechanics of electing and convening a body to write a new constitution would be substantially more complex and somewhere along the way factions of the political class would use their powers over the executive, legislative and judicial branches of the government to tilt the process in their direction.
Shortly after the call for a constituent assembly by Foro 2020 spokesman Nestor Jaén, a Jesuit priest, three important things happened.
First, the outgoing president of the Legislative Assembly, renegade PRD deputy Carlos Alvarado, handed Father Jaén a draft of his own proposal for constitutional reform, which includes the public’s right to recall elected officials, cutbacks on legislators’ immunity from prosecution and other privileges, the establishment of two new benches of the Supreme Court (which would nullify Mireya Moscoso’s post-election control of the high court, which she now controls by way of a majority of magistrates whose terms will not expire during the next administration), greater autonomy for the Social Security Fund and curbs on the Comptroller General’s powers.
Second, a Dichter & Neira opinion poll showed that 89.4 percent of the Panamanian people support the idea of a constituent assembly.
Finally, President Moscoso announced that, while she doesn’t know the particulars, she supports the concept of a constituent assembly.
Mireya controls the legislature by a narrow margin --- on September 1 her choice for assembly president, Jacobo Salas, was elected by a 35-34 margin with two Arnulfista deputies, the Ameglio brothers, abstaining --- so if she wants a referendum about a constituent assembly on the ballot next May, she is likely to get it.
A little bit of political math now becomes important. Eight months before the next electios, Mireya Moscoso’s chosen presidential candidate José Miguel Alemán stands at 8.8 percent support in the polls and his numbers are declining. What is shaping up is an unprecedented rout for a ruling party --- compare it with the 1989 election, in which the hated Noriega regime’s candidate received nearly 30 percent of the vote on its way to a resounding defeat. Given that large sectors of the Panamanian electorate are motivated more by whom they hate that by whom they support --- one-third of voters can’t stand the Arnulfistas and won’t vote for them under any circumstances, and a slightly higher percentage feel similarly about the PRD --- given Alemán’s collapse as a realistic alternative and the consequent shift of Arnulfista rank-and-file voters to the Endara camp, and moreover, considering that a part of Alemán’s single-digit support comes from MOLIRENA and other minor party supporters, it’s becoming quite conceivable that Mireya’s Arnulfista Party will not only lose the election, but will even lose its position on the ballot as an officially recognized party.
Almost certainly, the Mireyistas will be consigned to the political wilderness for at least five years. Unless Martín Torrijos finds a way to blow his wide lead, he and his party look set to sweep the elections, possibly with a legislative majority that can pack the Supreme Court in order to nullify the Mireyista majority.
So when would there be a better time for Mireya Moscoso to upset a constitutional order that has so enriched herself, her friends and their extended families?
Martín Torrijos and his allies, on the other hand, want none of this to get in the way of their control and enjoyment of the expected political spoils. A fifth ballot in next May’s elections would confuse the voters, he argues. Rubén Arosemena, the president of the Partido Popular, which is allied with the PRD, says that now isn’t the time for constitutional reform. PRD pundit Renato Pereira argues that uncertainties about the mechanics of a constituent assembly make the idea impractical. Partido Popular guru Ricardo Arias Calderón defies anybody to point out anything militaristic in the constitution that Panama has inherited from the military dictatorship he opposed.
Meanwhile in the Legislative Assembly, the conditions for a revolutionary situation are beginning to shape up. The legislature’s public approval rating has been in single digits for a long time now, and even though most of the PRD incumbents who sought re-election made it through their primaries, several of them were defeated and several more squeaked through by such narrow margins that they appear to have little chance in the general elections. Historians and political scientists who study political upheavals have frequently noted that a revolutionary situation is not merely when the people on the bottom can no longer stand things as they are, but when the people on top can no longer continue functioning as they have been. A “voto de castigo” --- vote of punishment --- that will remove most of the present legislators from office appears to be in the cards for next year. Radical solutions that elected officials wouldn’t have considered last year are now more attractive to them.
Foro 2020 has chosen a sort of civil society steering committee to press the campaign for a constituent assembly. It includes former La Prensa publisher Bobby Eisenmann, former legislator Alberto Conte, businessman Felipe Rodríguez, labor leader Mariano Mena, law professor and journalist Miguel Antonio Bernal and sociologist and playwright Raúl Leis. Together with Father Jaén, they will be urging the fifth ballot on the presidential candidates and party leaders over the coming weeks, and trying to organize that 89.4 percent of the public into an active political force.
Thus, from politics junkie’s point of view, the battle over a new constitution is shaping up to be a closer and more interesting contest than the regular elections offer this time around.
Also in this section:
Panama News Briefs
Movement for a new constitution gains strength
Anti-Castro activists to face trial
On the campaign trail
