CHAPTER SIX

THE RIGHT OF ASSEMBLY AND ASSOCIATION

American Declaration:

Article XXI:

Every person has the right to assemble

Peaceably with others in a formal public

Meeting or an informal gathering, in connection with matters of common interest of any nature.

Article XXII:

Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union, or other nature.1

A. The Right of Assembly

1. The Panamanian Constitution of 1972 establishes the right of assembly and provides for ample protection of that right under Article 37:

All inhabitants of the Republic have the right to assemble peacefully and without arms for lawful purposes. Outdoor demonstrations or meetings are not subject to permission. Only a previous notice to the local administrative authorities, twenty-four hours in advance, is required when they are to take place.

The authorities may take police measures to prevent or restrain abuses in the exercise of this right, whenever the form in which it is exercised causes or may cause disruption of traffic, breach of the peace, or violation of the rights of third parties.

2. When the current government of Panama took power by coup in 1968, it suspended the right to assemble peacefully as established in Article 39 of the Constitution of 1946, then in effect. With the express exception of the two major cities of the Republic, Panama and Colón, this right was reestablished in the remainder of the nation by Cabinet Decree No. 341 (Gaceta Oficial, No. 16.480, 5 November 1969). When the Constitution of 1972 was approved by the National Assembly of Corregimientos on October 11, 1972, Article 37 (the right of assembly) arguably superseded Cabinet Decree 341, thereby reestablishing the right of assembly throughout the Republic.

3. Nevertheless, and even in the city of David, where the right to peaceful assembly had been recognized by Decree 341, the Government failed to respect that right and intimidated those who might wish to exercise it by sending into exile a number of persons who had participated in a highly publicized and peaceful meeting held in David on January 15, 1976.

The meeting had been organized by citizens representing various sectors of the Province of Chiriqui for the purpose of protesting certain governmental economic and educational policies. According to one of the persons exiled as a result of his attendance, those who organized the event expressed their points of view in the press and on the radio and announced their meeting publicly. Government officials, both civil and military, were invited to attend, and the meeting was held in the Casa de la Cultura in David, open to the public. A government official recorded, in plain view, everything that was said and photographed those present. "That same official had kept the communications media of Chiriquí, from giving news or commenting on a meeting related to the same problems that had been held some weeks in that same city."2

B. The Right of Association

1. The Constitution of 1972 defines the right of association in Article 38:

The formation of companies, associations and foundations that are not contrary to morals or to the legal order is permitted. They may obtain recognition as juridical persons.

The capacity, recognition and regulation of companies and other juridical persons shall be determined by Panamanian law.

2. Political Parties

The Constitution recognizes the existence of political parties. Article 123 states that the law shall "regulate the formation, functioning and subsistence of political parties." "The formation of any party having as its basis sex, race or religion, or which attempts to impair the national sovereignty or destroy the democratic structures of government is prohibited" under Article 124. And Article 125 declares that the State "may supervise and contribute to the expenses incurred by natural persons and political parties in the electoral process," though the law "shall determine and regulate such supervision and contributions, ensuring equality of expenditures of all parties and candidates."

Nevertheless, freedom of political association, is not effective because all political parties existing at the time of the elections of 1968 were abolished by Cabinet Decree Number 58, 3 March 1969 (Gaceta Oficial, No. 16.314, 7 March 1969), and since the Constitution of 1972, the Government has not seen fit to provide a law implementing Article 123 and reestablishing political parties.

Some political parties continue to exist and to hold meetings, but without their legal character, they are subject to suppression at any time, and they cannot participate in elections as parties. Therefore, membership in political parties is discouraged, and their functioning is severely limited as a result of official policy.

According to one communication, the Government dissuades participation in political parties and interferes with the right of association and right of assembly in the following manner:

We had a convention planned for . . . .[name of place deleted] and we had arranged to rent the locales. Later we were informed that those locales would not be rented to us so we had to postpone the convention.

Last Sunday we had a meeting in . . ., that meeting was scheduled for 10 in the morning, from the earliest hours of the morning, troops in combat readiness were to be found stationed around the locale in a threatening manner . . .

One of the methods the Government uses is to remind the members of the party of the repression they suffered in 1968, the wives of provincial party leaders have been called by phone and they have been told to remind their husbands, in case they had forgotten, of what happened (in 1968) . . . .

On other occasions, party members who worked in the Government have been fired for having attended party meetings.

On the basis of the on-site investigation and the Government's withdrawal of legal recognition in the case of traditional political parties, the Commission finds that the Government of Panama has employed formal and informal means that make the parties feel insecure and inhibit the right to freedom of association.

3. Labor Unions

a. Article 63 of the Constitution of 1972 regulates the right of union organization:

The right of union organization is recognized for employers, employees and professionals of all classes for the purposes of their economic and social activity.

The Executive shall have an unextendable period of thirty days to approve or deny the registration of a union.

The law shall regulate all matters pertaining to Executive recognition of unions. The registration shall determine the legal personality of the union.

The Executive may dissolve a union only when it deviates permanently from its purposes and a competent court so declares in a final judgment.

The boards of directors of such association shall be composed exclusively of Panamanians.

There are allegations, however, that the Government has taken measures to repress some labor unions and tries to discourage labor groups that do not join the government-backed labor federation:

During the month of September of 1976, when the food, milk and rice price increase protest was in force, a great many of the labor groups were also active. During that time, Government G-2 Squads entered and destroyed the offices of Christian Democracy inspired labor unions, arresting all their leaders. In today's Panama, labor groups are semi-officially forced to become part of the Federación Sindical, a Communist-controlled labor federation created by the Government to control organized labor . . . . The labor groups that have maintained their independence from the "Federación, have had it rough, as without government support it is next to impossible for them to get favorable action at the Labor Ministry on any of their Union matters, and they are not given any representation in any of the government's institutions, where labor has traditionally been represented . . . ."

c. Because of political reasons, the Government of Panama allegedly interferes with the right of association to the extent of disregarding Article 63 of the Constitution and the articles of the Labor Code which regulate the formation of labor organizations.

Article 63 of the Constitution is implemented in part by Article 352 of the Labor Code, which reads as follows:

For approval or denial of registration, there shall be an unextendable period of thirty working days, which shall begin with the day on which the request for recognition is received in the Ministry (of Labor) . . .

According to documentation received by the IACHR, one organization presented its request for registration approximately one year and a half ago, and despite the efforts of members of this group and their letters to proper authorities and the President of the Republic, its request was still being "studied" by the Ministry of labor in December, 1977.

Meanwhile, the members have encountered difficulties in getting their licenses renewed, for renewal requests must be presented through a legally recognized union. The alleged objective is to force these people who want to have their own union and who have complied with the law to join a particular union in which they have no faith.

According to other reports received by the IACHR, the Bank Employees's Union (Sindicato de Empleados de Bancos) has been trying to obtain legal recognition for five years and the Government's failure to act is allegedly based upon purely political reasons.

d. Various labor groups have complained to the IACHR that Law No. 95, 31 December 1976), which amends the Labor Code, represents a governmental policy designed to favor employers and interfere with the right of association.

1) Article 6 of Law No. 95 provides exemptions which encourage companies to avoid signing union contracts:

The companies that are formed after the date on which this law enters into effect, are not obligated to sign collective contracts with the corresponding labor organization, during the first two years of operation. Nor are those obligated to sign who, although in existence at the time this Law goes into effect, have not yet signed collective contracts.

This article, it is claimed, allows companies, such as those in the construction business, to disband and then reform under another name, thus avoiding the collective contracts and forcing the disintegration of the organization of workers that had already achieved official recognition under the first company.

2) Article 13 of Law No. 95 reforms Article 218 of the Labor Code so that it reads as follows:

In work contracts for an indefinite time, the employer that announces a dismissal must invoke one of the justifications established in Article 213.

If in the respective proceeding the employer does not prove the cause justifying the dismissal or the preceding Resolution that authorizes it, the employer must, at his election, rehire the worker or pay the indemnification established in Article 225. In both cases the employer will be obligated to pay the salaries due from the date of the dismissal until that of the rehiring or the payment of the corresponding indemnification.

The Labor organizations claim that the phrase "at his election" in the above article refers to the option of the worker, and not that of employer. Recent decisions by the Supreme Court, they say, gives the employer the option of either rehiring the worker or paying the indemnization if he cannot justify the dismissal under the law. This interpretation, they point out, has allowed companies to interfere with labor organization and the right of association by firing labor leaders without legal justification, and then paying the indemnification. This practice counteracts the whole purpose, they feel, of a Labor Code that requires the employer to show legal cause for dismissal, and substantially reduces the effectiveness of labor organizations.

4. Churches

In its interviews with religious leaders, private organizations and individuals, the Special commission did not receive any allegations of interference with the right to freedom of worship and the right to freedom of religious association.

Notes________________________

1 American Convention on Human Rights

Article 15. Right of Assembly

The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the right or freedoms of others.

Article 16. Freedom of Association

1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.

2. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.

3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police.

2 Rubén Carles Jr., "Constitución de Panamá. Artículo 29: X," (n.p: n.d.), p. 3.