A few more steps into constitutional quicksand

Changing of the guard at the Credentials Committee — several steps ago in the unfolding constitutional crisis. Photo by the Asamblea Nacional.

The legislature and the court: defiance and reliance

by Eric Jackson

Let us recap:

  • A scandal-crippled President Juan Carlos Varela, nailed on taking millions from Odebrecht and the only question remaining whether it was an illegal campaign contribution or an outright bribe, stands by fuming and occasionally sputtering things about his authority.
  • New lines of credit from China promise billions for a government whose credit was about maxed out, and people who did not get on the gravy train with all the Odebrecht bribes — labor unions in particular, and most spectacularly Colon residents — are increasingly on strike or in the streets demanding their share of the nation’s wealth.
  • The Comptroller General issues a report about a nine-figure sum of alleged legislator circuit funds over the past administration having been diverted through neighborhood councils — juntas comunales — to avoid audits and use restrictions. Apparently most of the money went toward buying votes in the 2014 elections, but some went into the personal wealth of some of the individual legislators. The representantes of the correigimientos through whose juntas comunales the money flowed typically got a cut of that action, and what was done with those percentages is also a subject of interest. A truckload of boxes is delivered to the Attorney General — but her office has no jurisdiction over legislators. Only the Supreme Court and investigate, prosecute, try or punish a member of the National Assembly. Moreover, even if Kenia Porcell’s Public Ministry did have full jurisdiction, she doesn’t have the forensic accountants on staff or the funds to hire such in order to properly review the contents of all of those boxes. And if she sends everything to the high court — except for the bits about the representantes and former public officials, over whom she does have jurisdiction — they don’t have the staff or funds for such an investigation either.
  • Varela couldn’t get his last two high court nominees ratified by the legislature and he’s not even trying to come up with new ones. He doesn’t have the votes and if he annoys the legislature too much, they might impeach him.
  • Members of Varela’s party appealed the decision to reconfigure the Credentials Committee to the Supreme Court. An ACTING high court magistrate accepts the constitutional challenges, which calls for a stay of any action by the legislature and an immediate meeting of a nine-member panel of the short-handed court to determine whether the case will continue. Instead, the court plenum has not taken up the matter, violating court rules to keep the case in limbo.
  • The legislature doesn’t accept the court’s standing to say anything at all about the constitution of legislative committees — there is supposed to be a separation of powers — and proceeds to elect a new Credentials Committee, with Varela’s party going from four seats that they had to two seats if they will take them.
  • Eight members of the legislature file another amparo de garantías with the high court. This time, some of the very people who moved to change the Credentials Committee — Cambio Democratico deputies Yanibel Ábrego, Nelson Jackson, Mario Miller, Héctor Aparicio, and Salvador Real, plus the PRD’s Benicio Robinson and Crispiano Adames along with MOLIRENA deputy Miguel Fanovich — sue to retroactivly block the audit of the legislators’ circuit funds. They apparently rely on an application of the “summary proof rule” that applies in criminal matters. That is, that no investigation of an elected official can begin without a complaint that has full and competent proof that a crime was committed to said document. But if any inquiry went into the compilation of such summary proof as was attached to the complaint, that’s proof of an illegal investigation and the whole case becomes barred by that illegal procedure. Extend that to the Comptroller General and it means that he can’t audit any national government functions that might involve the presidency, the high court or the legislature — eliminating a huge part of his regular job.

So NOW, when Colon goes on strike and some maleantes — the suppression of whom is one of the strikers’ demands — go burning and looting. Politicians blame the parties to which they are opposed. That’s ridiculous and the National Police, who moved in large numbers with unusual restraint to maintain order in Colon, issued a report saying as much.

The Colon strike ended with its leaders and government officials sitting down for talks sponsored by the Catholic Church. But meanwhile workers at FEMSA, which produces Coca-Cola products, have walked off the job. So have workers at the First Quantum copper mine in Donoso, where said company is attempting to impose a sham “union” of their choice and alleging a crime by the SUNTRACS construction workers’ union that they are trying to oust by leading the work force at the mine out on strike. Off and on the Ministry of Labor Development mediates or tries to do so, but is hobbled by the lack of respect from both labor and management.

Respectable — by the folks who think they count — civil society is alarmed. The country slides into an institutional confrontation with chaos in the wings, perhaps to take center stage. The Catholic Church and the nation’s lawyers protest the position into which a widely reviled and short-handed court has been placed by a legislature that defies them yet on the other hand demands that they do their sleazy bidding.

In the face of the outcry, Yanibel Ábrego withdraws her lawsuit. Her eight colleagues do not. PRD legislators sit down with church officials who want to mediate a way out of the crisis. Ábrego sits down with the leading lights of the Colegio de Abogados, Panama’s main bar association. The executive and judicial branches of government are too high and mighty, and have their own countervailing rules, so they are unlikely to sit down for any such talks with respect to their impasses with the legislature.

The obvious way out, the calling of elections for delegates to a constitutional convention, is not obvious to any of the powers that be. Nobody has much of an idea who would win such elections and what such a convention would do. The politicians prefer to use legislation, the Electoral Tribunal and the Electoral Prosecutor to fend off the possibility of a sweep by new, independent forces in the 2019 elections, and muddle along until then.

It’s a rickety structure, Panama’s status quo. Word that the builders of the collapsed pedestrian bridge in Miami, MCM, also has public works contracts with the Panamanian government does not help matters.


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