Under a set of constitutional changes proposed by the PRD legislative caucus, people with relatively minor criminal convictions could be forever barred from holding certain public offices, legislators would retain their immunity from investigation and prosecution for corruption and the political parties would strengthen their grip on the government.
Of course, that’s not how President-elect Martín Torrijos, Vice-president-elect Samuel Lewis Navarro and Jerry Wilson, the PRD legislator who presented the package to the lame duck assembly, put it at the June 18 press conference at which the reform package was announced.
However, if the constitution is amended as they propose, nobody could be elected as president or vice-president, or serve in the legislature, if he or she has been convicted of any intentional crime that carried a jail sentence, even if he or she has been pardoned. The same ban would apply to potential comptrollers general. The ambiguously written wording provides that candidates for those office must "Not have been convicted for an intentional crime with a penalty that deprives of liberty by way of a final judgement entered by a court of justice." Currently, the only crimes that exclude a person from being elected to public office are election offenses and "crimes against the public administration" such as embezzlement of public funds.
The proposed new restriction might rule out another presidential run by Guillermo Endara, who was convicted of criminal defamation for calling Ricardo Martinelli a “maricón” (queer) after the latter filed bogus defamation charges against Endara’s wife because she criticized Martinelli’s administration of the Social Security Fund. The crime for which he was convicted carried a maximum penalty of two years in prison. Ana Mae Díaz de Endara was acquitted but the ex-president was convicted, then later pardoned.
The PRD proposal leaves it up to the courts to decide if the ban only applies to those who have been actually sentenced to jail, or those convicted of offenses that carry the possibility of incarceration. If the courts hold that the ban only applies when jail terms are actually imposed, then it would effectively remove the present disqualification of people who were convicted of vote fraud or looting the public trust if they were not sent to jail for it.
The proposed new ban makes no distinction between misdemeanors and felonies --- a two-day sentence for littering would carry the same lifetime ban as a 20-year sentence for murder. There is also no distinction between juvenile offenses and crimes committed by adults.
The proposed new restrictions would likely bar a large minority of Panama’s press corps from holding public office in the future, due to criminal defamation convictions. Moreover, it would exclude the possibility of members of the civilista movement who were sentenced to jail for opposing the old military dictatorship, and leftists who have been incarcerated for their part in street protests, from elective offices. It would not, however, affect many of the current batch of corrupt public officials, because they have been granted impunity by the Supreme Court, Attorney General José Antonio Sossa or the Legislative Assembly.
The proposals also touch the subject of legislative immunity, which is very controversial in the wake of Attorney General José Antonio Sossa’s and the Supreme Court’s moves to block investigations into a string of scandals involving the current assembly. The PRD would eliminate immunity --- but just for civil child support and labor code matters. The legislators would still enjoy immunity from bribery charges ---or for stealing electricity and pulling a gun on utility workers who come to cut off the illegal power connection, as one current Mireyista deputy did --- unless stripped of their immunity. Presently only the Legislative Assembly can deprive a member of his or her immunity --- something that he current batch of legislators have refused to do. Under the proposed changes the Supreme Court would be the body to decide if a legislator’s immunity from criminal investigation and prosecution is to be lifted.
Under the PRD package, independent candidates for legislator in the various circuits would be allowed. However, part of the legislature could be elected under a new proportional representation scheme that would remain the exclusive domain of the political parties.
The right of parties to remove legislators of their own caucuses would be strengthened, while independent legislators (but not those elected on party tickets, unless their parties adopt rules to the contrary) could be recalled by a process initiated by a petition drive among their constituents.
The number of legislators, now up to 78, would be reduced to 67 and permanently capped at that number.
The legislature and president would have the power to by law make up to 20 percent of these legislators elected at large on a national level, by a system of proportional representation. The parties would determine the order in which candidates would stand on their lists for these posts, much as is now done with respect to candidates for the Central American Parliament.
Legislators would have only one suplente instead of the current two, and likewise mayors would have only one vice-mayor and the office of second vice-president would be abolished.
Under the PRD proposals, presidential appointees who are unable to gain approval by the legislature would not be able to serve in those posts anyway, as was the case when Mireya Moscoso appointed the viciously partisan Romel Adames to a highly paid position that required legislative approval that he couldn’t get.
Judges, including Supreme Court magistrates, would no longer have suplentes. The legislature and president would be allowed to pass laws regarding the filling of judicial vacancies.
Those who had served in either a legislative or executive post within the previous five years would be ineligible for appointment to judicial posts.
The constitution would allow the number of magistrates for each Supreme Court bench to be set by legislation, in effect sanctioning court-packing schemes when the judiciary is controlled by one faction and the executive and legislative branches of government by another.
The comptroller general would lose some powers to block government expenditures or rescind public contracts. Some of the comptroller’s powers would be given to a newly created accounting tribunal.
The office of national Ombudsman (Defensor del Pueblo) would be established in the constitution, rather than by legislation as it is now.
The Electoral Tribunal would present its own budget to the Legislative Assembly, but its financial affairs would be subject to review by the Comptroller General. The Supreme Court’s ability to review Electoral Tribunal decisions and procedures --- which allowed Mireya Moscoso to maintain control of the legislature by blocking the PRD’s move to strip Carlos Afú of his seat --- would be curtailed. Within certain windows of time to prevent last-minute and lame duck election law changes, the Electoral Tribunal would gain the right to propose election reforms to the Legislative Assembly.
Political fundraising by private sector employers among the workers in their businesses would become an electoral crime.
The constitution would be amended to close a possible loophole by which a Panama Canal expansion project might be pushed through without a public referendum on the matter.
The ways in which national government powers might be devolved to municipalities would be regulated by new constitutional provisions.
The number of officials with the power to summarily fine or jail somebody for disrespect would be reduced, and those who retain such prerogative would have their power to order someone held under preventive detention limited to 24 hours.
The lame duck period between the election and inauguration of public officials would be reduced from the current four months to two months.
Finally, the amendment of the constitution by the convening of a constituent assembly would be allowed, under the following conditions:
• Such an assembly would have 41 elected members;
• The method by which these members are elected would be up to the legislature and president --- they could by law provide for election by circuit, province or at-large on a national level, or elected in a partisan or non-partisan process;
• The constituent assembly would not have the power to assume any of the government’s functions, nor would it be able to alter the terms of public officials serving at the time;
• Once a constituent assembly completes its deliberations, it must dissolve and submit its proposal to a public referendum for approval or rejection; and
• A constituent assembly can be called by the president, the legislature or by petitions bearing the signatures of 25 percent of all voters, somewhere around half a million signatures at the present time.
The last regular session of this legislature ends on June 30 and it’s unlikely that this matter could be taken up and approved on three readings within that time.
However, Mireya Moscoso could call a special legislative session to take up the matter. She has said that she’s consulting people about that possibility.
If the current legislature passes the constitutional changes and the next one ratifies them, then they would be adopted as a part of the constitution. That possibility lies entirely in Mireyista hands, but of course pressures could be brought to bear or deals struck. For example, the PRD and their Partido Popular allies might promise Mireya that there won’t be any investigations or prosecutions for the rampant corruption during her presidency if she goes along with the plan.
In any case, Jerry Wilson said on the RPC-TV program “Enfoque” that if it’s not possible to gain approval of the constitutional package by the route of approval in two successive legislatures, the next assembly, which will have an absolute PRD majority, will exercise its power to submit the package to the voters in a referendum.
However, in post-invasion Panamanian politics attempts to pass packages of constitutional changes by referendum have not fared well. Both the Endara and Pérez Balladares administrations submitted multiple constitutional changes to the voters, who rejected them. Thereafter both presidencies were substantially weakened.
Whatever the proposed changes might be, there are two major political obstacles to the passage of multi-point constitutional reform referenda.
First, in Panama no single political party enjoys a majority of voter support, and there is a tendency for squabbling opposition factions to treat a referendum as a vote of confidence in the minority government in power at the time rather than as a decision on a specific set of proposals --- and usually the opposition has the votes to beat the government. Were the cleavage in the electorate that gave Torrijos a sweeping PRD victory of this past May to be repeated in a referendum vote, his constitutional proposals would be defeated by a 53 to 47 percent margin.
Second, when referendum questions are posed as a package of several reforms, astute opponents will pick the least popular item in the package to emphasize in a “no” campaign. For example, in the August 1998 referendum the package included an end to the party caucuses’ power to remove dissident legislators (which was popular), financial autonomy for the Electoral Tribunal (which may also have passed were it considered separately), and the ability of presidents to run for a second consecutive term. At the start of the campaign people had mixed feelings about that latter proposal in general, but when it was posed in terms of Toro being re-elected, people really disliked the idea. Thus the “no” campaign based its campaign on the theme “Vote no on the re-election of Ernesto Pérez Balladares,” with devastating effect.
It may be that the PRD’s referendum promise is just a bluff, and that the constitutional package will rise or fall based solely on the possibility of a deal with Mireya Moscoso.
However, if it is not to be taken as a bluff, the PRD may be gambling that the carrots of opening legislative races to independents and the possibility of a constitutional convention may convince the nearly 90 percent majority of Panamanians whom pollsters say supports a new constitution to back their proposal. At first glance, it seems that the PRD offer is driving a wedge in the pro-constituent assembly forces, but probably not down the middle of this diverse group.
Father Nestor Jaén, the main spokesman for the Catholic Church on the matter of constitutional reform, told La Prensa that he sees something positive in the PRD’s set of proposals.
In El Panama America, former presidential candidates Guillermo Endara and Ricardo Martinelli both gave the PRD initiative mixed reviews, finding both positive and objectionable parts to it.
Sociologist and writer Raúl Leis, the main organizer of the pro-constituent assembly Foro 2020, told La Prensa that he doesn’t like the legislative route to constitutional reform because it leaves the public out of the debate and that he also suspects that the possibility of the voters calling a constituent assembly by initiative petition may be illusory due to impossible requirements.
Like Leis, anti-corruption activist Magaly Castillo objected to the preferred method by which the PRD proposes to change the constitution, but she told El Panama America that she sees positive things in the package.
Law professor and radio talk show host Miguel Antonio Bernal, the most persistent and vocal advocate of a constituent assembly for many years, was less ambiguous. He told The Panama News that the PRD reform package is “dangerous.”
Also in this section:
Panama News Briefs
Martín Torrijos begins to name his cabinet
PRD presents constitutional proposals
The Bush administration's torture memo
