The final word may be pronounced in court, but if the lame duck legislature has its way more than 70 changes will be made to Panama's constitution. The PRD-initiated reform package, the text of which is as long as some countries' entire constitutions, was modified in parts, amended by a few Arnulfista proposals but mainly passed intact.
The most talked-about proposal, the one that creates the possibility of constitutional reform by way of a Constituent Assembly, was modified to allow the process to be initiated by citizens’ petitions bearing the signatures of 20 percent of the total national electorate, rather than the originally proposed 25 percent.
Originally the requirement was proposed that the petition signatures would have to be gathered within one year, but the proposal was amended to cut that down to six months. With the present number of voters, it would be necessary to gather some 400,000 signatures to convene a Constituent Assembly.
In a petition drive conducted in Catholic churches over several months in late 2003 and earlier this year, more than 100,000 signatures favoring a constituent assembly were gathered. That and public opinion polls suggest that by taking the movement onto the streets throughout the nation a successful petition drive would be possible. But the number of signatures collected on sheets of paper and the number that the Electoral Tribunal would count as valid are different concepts even when the game is played honestly by all parties, as inevitably there are voters with illegible signatures, or those who sign a petition more than once. Were the Electoral Tribunal to adopt hyper-technical or dishonest signature counting methods then it would easily require more than half a million Panamanian voters to convene a constituent assembly. And then if the petition drive is successful the Legislative Assembly would be able to write the rules for electing the delegates to a constituent assembly, for example by leaving the nominating process entirely in the hands of party leaderships that oppose change.
The basic legislative PRD - Partido Popular aim is to thwart the demand for a constituent assembly while appearing to do otherwise. Polls show that nearly 90 percent of Panamanians favor the election of an assembly to write an entirely new constitution. Were such a body to act in accordance with popular sentiment, it would most likely damage or destroy the current system of privileges, immunities and perquisites enjoyed by politicians.
Legislator Pedro Miguel González (PRD-Veraguas) tried to get the signature requirement raised to 30 percent, and when that failed managed to cut the signature gathering time in half. He said that a petition drive to convene a constituent assembly would be “traumatic for the country.”
The proposal on legislative immunity was changed to delete the word “immunity” from the constitution, but nevertheless legislative immunity would continue if the amendment is passed. Only the Supreme Court would have the power to authorize a criminal investigation or prosecution of a legislator under the proposal as it now stands. Under the current constitution only the legislature itself can authorize an investigation or prosecution of one of its members.
The current assembly has steadfastly refused to allow investigations of its members, including for flagrant acts of armed violence, even when bribery has been admitted, even when individual legislators have tried to voluntarily set aside their own immunity. Previous legislatures have usually behaved in similar fashion and it's not clear that the Supreme Court would act any differently.
In the debate about the legislative immunity provision there were a number of comments about how the public does not understand the reasons for its existence and complaints that people equate the privilege with impunity for criminal acts. But then the legislators did not enhance the public understanding they claim is lacking by surrendering their Arnulfista colleague, one Francisco Reyes, for investigation and prosecution for pulling a gun on electric company workers who came to his home to cut off the illegal "spider web" connection through which he was stealing electricity.
While the original reform package proposed to reduce the number of legislators to 50 --- under the current formula the lame duck assembly has 71 members and the incoming one will have 78 --- that was changed to set the number of legislators in future assemblies at 71. Eliminated from the proposal was a provision to allow the election of at-large legislators.
Another proposed change, a section calling for referenda on major Panama Canal projects that had been criticized by former President Jorge Illueca, was modified to restore legislative approval or rejection as part of the process. Nevertheless other critics claim that the new Article 319 would open the door to the waterway’s privatization, something that no Panamanian politician openly advocates. In the recent protests against free trade talks with the United States, however, some have argued that a free trade deal based on NAFTA in conjunction with the revised Article 319 would give US corporate interests a legal basis to force the canal’s sale to private interests. More subtly, canal workers’ unions are not raising the alarm about privatization of the waterway per se, but they do complain that the amendment would make it easier to outsource a lot of canal functions to private contractors, something that they oppose.
The sections that allegedly with a name and surname attached, which as original written would have prevented Guillermo Endara from running for public office again, were modified to obviate that aim.
The original PRD proposal was to bar anyone convicted of any intentional crime which carries the possibility of a jail term from ever serving as a legislator, president, vice-president or government minister, whether or not the person had actually been sent to prison and regardless of whether he or she had been pardoned. Endara was convicted of criminally defaming Ricardo Martinelli --- the ex-president called the supermarket baron a “maricón” after the latter filed a bogus and ultimately unsuccessful defamation charge against Endara’s wife Ana Mae when she criticized Martinelli’s performance when he was head of Seguro Social. Endara received a fine and a suspended jail sentence, but was later pardoned by Mireya Moscoso.
As amended, the proposed change now excludes anyone who has been convicted of a crime that carries the possibility of a prison sentence of more than five years. The calumnia e injuria charge upon which Endara was convicted could have at the most put him behind bars for two years.
The change also gets Partido Popular activist, RPC-TV pundit and El Panama America editor Milton Henríquez off of the hook with some of the journalists who consider him a scab. Two El Panama America reporters were convicted of “injuria” --- writing a true story about the use of public funds for a rural road that almost exclusively serves farms belonging to Supreme Court magistrate Winston Spadafora and Comptroller General Alvin Weeden --- and thus Henríquez, one of the authors of the constitutional package, put himself in the position of advocating an enhancement of their punishment by stripping them of their rights to hold public office in the future.
The reform package was also modified to eliminate suplentes from the Supreme Court. Under the revised proposal if a vacancy arises on the court, the president would appoint a replacement for the balance of the departed magistrate’s term, and in case of absences or recusals appellate judges from the Superior Tribunals would fill in for the missing magistrates on a rotating basis.
One of Arnulfista deputy José Blandón’s proposed changes that was approved by the assembly, the elimination of the University of Panama’s power to control the recognition and curricula of private universities, was also adopted. This brought university administrators into the streets to protest. Given the recent proliferation of fly-by-night “universities” that lack such basic things as libraries, which is inexplicable in terms of any coherent educational policy, the elimination of this power would most likely cut off a lucrative source of payoffs. The administrators didn’t put it that way, and neither did Blandón, who argued that the legislature needs to take up the matter of higher education reform but has been unable to do so because of the prerogatives that the University of Panama is given in the current constitution.
Another Blandón proposal, to decriminalize libel and slander, was defeated by the PRD caucus’s unanimous abstention. The PRD is historically in favor of journalist licensing schemes and the use of criminal laws for reprisals against the publication of unfavorable news coverage or commentary. Most notoriously there are the pending criminal charges that two prominent politicians of the ruling PRD - Partido Popular alliance, former President Ernesto Pérez Balladares and former Vice-President Ricardo Arias Calderón, have brought against La Prensa cartoonists Víctor Ramos and Julio Briceño respectively, for unflattering editorial page cartoons.
All this maneuvering will be for naught if law professor Miguel Antonio Bernal gets his way. He has filed a petition with the Supreme Court that seeks to have the special legislative session and anything that comes of it void. That’s because the session was called in a decree by the Ministry of the Presidency, rather than by the Cabinet Council as required by the constitution.
While that constitutional defect was being represented to the courts as fatal, another matter arose that could have the same effect as Bernal hopes to have with his lawsuit. The special session ended on July 20, with the package having been approved on second reading. Of course, things have to be read and voted for three times to be adopted by the legislature, and the constitution is quite specific that business left unfinished at the end of a regular session must start from scratch again in another one. Legislative Assembly president Jacobo Salas argues that Mireya can extend the session so that the package can be passed on third and final reading, but on this matter the politicians would be doing something unprecedented and possibly impermissible.
If the proposals get passed on third reading, and if the Supreme Court rejects Bernal’s arguments and any similar challenges, then the next Legislative Assembly could make the reform package part of the constitution by adopting it after it convenes on September 1.
Also in this section:
Panama News Briefs
Special legislative session on the constitution
Mireya's "mano dura"
Scandal and anti-Semitism in Honduran church
