Unprecedented dissent, but Electoral Tribunal rejects Jované's bid for ballot status

Jovane doesn't get ballot status
by Eric Jackson

Juan Jované won't be on the ballot for president in May, but don't be surpised if many thousands of ballots counted as "spoiled" will be such because they bear the 63-year-old economist's name.

Panama operates under the constitution inherited from the 21-year military dictatorship, with various modification. It provides for a strong executive, originally operated through puppet presidents dominated by military men, and to buy off other elements of society gives local officials and legislators relatively little power but all manner of privileges and opportunities for corruption, and the political parties signifcant power to distribute these. That "partidocracia" system has broken down in parts and been strengthened in others, generally by the electoral courts making politically motivated decisions regardless of what the constitution and laws provide on the one hand, and by the parties trying to strengthen themselves via the grip they have on the institutions of state, particularly the presidents and legislatures.

As regards the electoral system, the balance has shifted way over to the PRD side with two-thirds of the Electoral Tribunal in that party's hands now and for the next nine years or so. The current Electoral Prosecutor, who is in an acting capacity, is the most flagrant PRD partisan of all the cogs in the system.

The constitution provides that to be president there are requirements as to age, citizenship, residency and not having political rights suspended as the result of a criminal conviction. Being a member of, or having the support of, a political party is not one of these prerequisites.

The constitution was amended in 2004, by agreement between the outgoing Moscoso adminsitration and incoming Torrijos administration and their respective legislatures, to allow independent candidates for legislature. This amendment didn't nullify a prior section of the constitution, but rather overruled a statutory provision. There remains Article 233 of the Electoral Code, a statutory provision that only political parties with ballot status can put somebody on the ballot for president.

Arguably, that law is unconstitutional, as the the constitution is a higher authority and it requires no party affiliation for someone to be president.

Were the Panamanian left not a squabbling array of rival factions, this would be the year that they'd turn the presidential race wide open by limiting the PRD's appeal among working people and win enough of a minority block in the National Assembly to block the next government's initiatives unless important concessions --- like the calling of a constitutional convention --- were made.

Ah, but as the Latin American proverb goes, If wishes were horses, then beggars would ride. The largest of the Marxist-Leninist organizations, the November 29th National Liberation Movement (MLN-29), is not the only one that adheres to the classic vanguard party and front organization concept so jealously as to abstain from or overtly try to destroy leftist initiatives that it does not control. The MLN-29, takes its inspiration and name from Floyd Britton, whom President Torrijos's father General Omar Torrijos had tortured to death at the Coiba Island penal colony on November 29, 1969. It is the dominant force in the SUNTRACS constrution workers union, the FER-29 student group, the CONUSI labor federation and a number of other movements, unions, issue groups and the National Front to Defend Social and Economic Rights (FRENADESO) labor/left umbrella group.

Also within the left, having seceded from FRENADESO, there is rival the Unity of the Whole Struggle by the People (ULIP) umbrella group, which is led by, among others, University of Panama economics professor and former Social Security director Juan Jované, sociology professor and Popular Alternative Party leader Olmedo Beluche, and university administrator Miguel Angel Candanedo. Important parts of ULIP include the Veraguas Educators Association, the union that represents Coca-Cola workers and the Thought and Transformative Action (PAT) student radical group.

Beluche's Partido Alternativa Popular attempted to get ballot status, but fell way short of signing up the 60,000 or so members that would take.

The Panamnian Workers Party (PTP), another leftist faction led by Priscila Vásquez, a psychologist who heads the Social Security Fund Employees Assocation (AECSS), also wants to get into electoral politics but decided that it wasn't worth the effort to gather signatures for ballot status. Vásquez is, however, gathering signatures to run for the legislature as an independent from circuit 8-8, which (as re-drawn after the 2004 constitutional amendments) encompasses the corregimientos of Juan Diaz, Parque LeFevre, Rio Abajo and San Francisco.

Another political figure who's in many respects of the left, but who rejects the communist vanguard and party discipline concepts, rejects the on-campus political arrangements between the student leftist groups and the University of Panama's PRD administration and is too much of a free thinker to be ideologically pigeonholed with any accuracy, is running as an independent candidate for mayor of Panama City. That's law professor and radio show host Miguel Antonio Bernal. But Bernal has been nominated by the Liberal Party, which solves the problem of ballot status in his case.

They face all manner of obstacles, but Bernal and Vásquez both have reasonable chances of being elected.

In the mayor's race the PRD's Bobby Velasquez has been the front runner but he's trying to run without saying anything about the issues and his party's in trouble nationally; while the guy who was running second in the polls last October, Panameñista Bosco Vallarino, has just lost the support of one of the parties that had been backing him (MOLIRENA) and in debates is impressing people as particularly uninformed about the issues facing the city. Bernal, meanwhile, was in third place and rising. If in the first couple of months of 2009 Bernal can overtake or draw even with Vallarino, he'll be within striking distance. (Recall that in his one other run for public office, in 1999, Bernal came out of nowhere with hardly any money to overtake incumbent mayor Mayín Correa and some just short of beating the PRD's Juan Carlos Navarro in a tight three-way race.)

In Vásquez's circuit 8-8 there are five deputies to be elected, the current legislature is widely disrespected, and there is thus an opening for an independent to grab one of the seats. The union leader is not going to have the funds to run a standard campaign, but with enough of a volunteer crew a candidate who's not on TV and has no billboards can reach enough voters to win. Her big problem is gathering the signatures to get on the ballot in the first place. If that happens, being the challenger to all of discredited legislative games should be a vote-getter this year. When the votes are counted in a multi-member district, however, coming in fifth would not necessarily be enough, because if two candidates from another party came in, say, sixth and ninth, the sixth-place candidate would get the votes of the ninth-place finisher and on that basis could jump ahead and win that last seat. An independent gets no such possibility.

But Juan Jované? Were he to get on the ballot and rally the Panamanian left behind him, that would add up to 10 percent of the vote, tops. And then consider that MLN-29 and its allies are calling for an election boycott, at least at the presidential level. His would have been a symbolic campaign at best.

Having attempted to register as an independent candidate for president and having been rejected, Jované sued before the Electoral Tribunal for an order mandating that election officials allow him to file the papers. In this he was supported by Miguel Antonio Bernal and the ULIP crowd, while the folks at FRENADESO said they weren't supporting him.

On December 16 the tribunal made its decision, ruling 2-1 that, due to Article 233 of the Electoral Code, Jované can't get on the ballot as an independent. The sum of the result was expected, but this was the first time ever that an Electoral Tribunal magistrate had dissented from a majority decision.

The dissenter? It was Gerardo Solís, the former Electoral Prosecutor of PRD origins. He considers Article 233 unconstitutional and says it "has no reason to be." He's urging its repeal, which won't happen in time for this election.

The very fact of Solís's dissent, however, might make anyone thinking of stealing the May election for the PRD think again. It's not an abstract concern, especially considering the long counts and arm-twisting that happened in 2008's internal PRD elections. The last time the PRD stole a presidential election, in 1984, they had an infamous Electoral Tribunal headed by Yolanda Pulice united behind them. After a campaign in which the resources of the state and the advantages of media largely under dictatorial control were mobilized for the PRD, Manuel Antonio Noriega's and Ronald Reagan's man, Nicolás Ardito "Fraudito" Barletta, was still short of votes behind Arnulfo Arias. That little problem was resolved when the tribunal unanimously threw out the votes from San Miguelito, tilting the race back to the dictatorship's banker frontman of the moment. A dissenting voice could greatly complicate matters in such an operation.

Jované appealed to the Supreme Court, which is also PRD-dominated, but by the ordinary workings of that body it wouldn't hear the case in time to put him on the ballot for the May elections. Depending on what happens in May, there could be a changed political situation that would make the partisan predictions that would be the conventional wisdom today inapplicable under the new circumstances. It would seem unlikely, however, that a constitutional system built around a cornerstone of partisan privileges would favor an independent challenge to itself.

He also says that he may appeal to the Inter-American Human Rights Court, but for that tribunal, which sits in San Jose, Costa Rica, to take jurisdiction all remedies in the Panamanian courts would have to be exhausted and there would have to be a showing that either Jované's right to due process of law was denied or that there was a substantive violation of an internationally protected human right. There is an outside chance that an appeals process before a tribunal set up on a de facto partisan basis could be held a violation of an independent candidate's right to an impartial forum, and also an outside chance that Article 23(b) of the American Convention on Human Rights is violated by Article 233 of Panama's Electoral Code. The treaty provides, very generally, that "[e]very citizen shall enjoy the... right... to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters...."

Generally, however, both national and international courts have hesistated to interfere with election laws. It would be unprecedened for the Inter-American Human Rights Court to meddle in such a matter.

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