CHAPTER EIGHT

The right to vote and participate in government

American Declaration:

Article XX

Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to tae part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.1

A. Citizenship and Suffrage: the Constitutional Bases

1. "Political rights and the capacity to hold public office with authority and jurisdiction are reserved to Panamanian citizens." (Article 119) Panamanian citizens are defined by Article 118 as "All Panamanians over eighteen years of age . . . without distinction as to sex." The law regulates the suspension and recovery of citizenship. (Article 121) The exercise of the rights of citizenship may be suspended as a result of express or implied renunciation, or by penalty in accordance with the law. (Article 120, Article 13)

2. Suffrage is described by the Constitution as free and universal, direct or indirect, and a duty and right of all citizens whose rights have not been suspended. Voting is to be equal and secret, and the authorities are obliged to guarantee the freedom and honesty of suffrage. (Article 122) The principal safeguard established in the Constitution is the Electoral Court, which exclusively interprets and enforces the Electoral Law, and directs, supervises and inspects all states of the electoral process. (Article 126).

B. The Right to Participate in Government

1. With the exception of those sent into exile and those who were forced to choose exile in the face of threats, there is no discrimination in Panama with regard to the right to participate in government.

2. The Constitution of 1972 offers one innovation, which has allowed greater popular participation in the government. Article 274 provides for the popular consultation of treaties related to the Canal through a national plebiscite:

Treaties which may be signed by the Executive Organ with respect to the Panama Canal, its adjacent zone, and the protection of the said Canal, and for the construction of a new Canal at sea level or of a third set of locks, shall be submitted to a national plebiscite.

Although this is a transitory provision and it is not expected that it will be invoked on numerous occasions, a plebiscite was held on October 23, 1977, with apparent success insofar as voter participation.

3. The Constitution of 1972 contains a number of major changes, however, which diminish the effectiveness of participation in the government through suffrage. This is one of the major distinctions between the present Constitution and its predecessor of 1946. The latter provided for a President and legislative body elected by direct vote and created a balance of powers among the three branches of government. In contrast, under the new Constitution, the President is named by the National Assembly, the principal legislative body (National Legislative Council) is appointive, the powers of the elective Assembly are significantly limited, and the Chief Executive is able to dominate the legislative and judicial organs through his power or appointment.

4. The National Assembly of Representatives of the Corregimientos

a. The National Assembly of Deputies of the Constitution of 1946 is replaced in the new charter by the National Assembly of Corregimientos, which is composed of as many members as there are municipal subdivisions or corregimientos. (Article 130) Each corregimiento elects a representative and his alternate by direct popular vote for a six-year term. In 1972, 505 representatives were elected to the National Assembly.

b. The Assembly meets one a year in Panama City for a month-long session (October 11-November 11). It may also be convoked for a special session by the Executive Organ "to deal with specific matters for the period he specifies". (Article 132) During the remainder of the year, the representatives of the National Assembly serve as municipal councilmen. (Article 212)

c. The brevity of the regular session reflects the paucity of its powers and duties. Though styled a legislative body, its legislative functions are, basically, three: "It approves public treaties signed by the Executive, grants amnesty for political offenses, declares war and authorizes the Executive to negotiate peace. It may also approve or disapprove changes in political divisions or constitutional amendments, if the National Legislative council proposes such changes."

The Assembly does have one check upon the executive power. Acting through its Judicial Commission, it may try the President, Vice-President, Magistrates of the Supreme Court, the Attorney General, the Commander in Chief of the National Guard, and the Solicitor General for "acts in violation of the Constitution and laws committed in the performance of their duties." (Article 142)

The Assembly may also request oral and written reports from public officials and demand their appearance at its sessions, but this is a limited power, for those officials are not responsible to the Assembly in any way. Similarly, it receives annual reports on the activities of the President and Vice-President, Ministers of State, the Controller General, and autonomous or semiautonomous institutions. (Article 143)

However, the Assembly is forbidden to take votes of approval or censure with respect to the acts of the President of the Republic or to demand public reports on pending diplomatic negotiations of a confidential nature. (Article 144)

d. There is some controversy as to whether this form of representation by municipal districts encourages popular participation in the government, or serves primarily to restrict the effectiveness of that participation.

Those who feel the new system encourages participation and increases the effectiveness of that participation base their assertions upon electoral data and on the rationale for the creation of smaller electoral districts. The Deputies to the national Assembly (Constitution of 1946), they point out, were elected on a provincial basis and often had little or no concept of the needs of the smaller, rural areas which consequently suffered from ignorance and neglect at the national level. Since the new electoral districts are small and the representatives are required to live in their districts to be eligible for election, they are more conscious of the local reality and more accessible to their constituents. During its visit to Boquete in the Province of Chiriquí, the Special Commission spoke with municipal councilmen and representatives to the National Assembly and left with the impression that those officials were aware of local needs and were readily available for consultation with local residents.

The success of this system, its supporters claim, is to be seen in the dramatic increase in voter participation. Official figures indicate, in comparing the 1968 presidential and congressional elections with the 1972 elections to the National Assembly of Corregimientos, that the number of voters increased from 327,048 to 531, 362, while the participation of registered voters jumped from 60.1 to 89.2 per cent.2

e. Those opposed to the new system say that it is a disproportionate form of representation which actually diminishes the effectiveness of the suffrage exercised y the majority and allows sparsely populated rural districts, easily controlled by the executive through local appointments, to dominate the electorate and the National Assembly. Relying on official figures, they show that in the 1972 elections, 470 of the 505 districts had less than 3,000 voters each. Of those districts, 118 had less than 250 voters and 31 had less than 75.3

The effectiveness of representation by corregimientos is illustrated in the chart below:

1972 ELECTIONS OF REPRESENTATIVES4

The most extreme cases are those of Playa Chiquita, which has only 28 voters, yet sent one representative to the National Assembly, and La Exposición, which elected only one representative for 19,965 voters. Overall, the 470 districts with less than 3,000 voters each and representing only 44.62 per cent of the total voters, accounted for 470, or 93.07 per cent, of the 505 representatives.5

As a practical matter, the new system has neutralized the larger, more politically aware urban vote where the traditional parties were strong and has made the less populous rural districts the dominant force in the National Assembly, giving the latter the power to elect the President and Vice-President of the Republic. Opponents of the system claim that, because many of the districts are so small and candidates are required to reside there, there are many representatives in the National Assembly who are unqualified to decide matters of national import. Because of the limited number of candidates and voters in rural districts and their lack of political expertise they are easily manipulated and controlled by those already in power, who are the only ones who have anything to offer. Inasmuch as these same representatives serve double duty as municipal councilmen, opportunities for participation in municipal government are more limited and power at both the national and municipal levels is concentrated in the same hands.

f. Moreover, opponents claim, popular participation in the government has been effectively limited by the transformation of the only institution whose members are elected by direct suffrage into a comparably impotent, voiceless body, whose only real function is to elect the President. The powers once exercised by the people through their representatives to the National Assembly of Deputies are compared with those held by the new National Assembly in the chart below. Blank spaces in the right-hand column indicate that the members no longer have those powers or protections:

g. Likewise, the following administrative powers once enjoyed by the people through their directly elected representatives and the National Assembly have been suppressed:

1. To appoint the Attorney General of the Nation, and Assistant Attorney General and their alternates, and the Comptroller General of the Republic; and to approve or disapprove the appointments of the Magistrates of the Supreme Court of Justices and their alternates (Article 120);

2. To appoint committees to investigate any matter connected with acts performed or measures proposed by the Executive;

3. To pass a vote of censure against Ministers of State;

4. To examine and settle the general account of the Treasury which the Executive submits to it;

5. To rehabilitate those who have lost their nationality or citizenship.

h. Also suppressed, were the powers of the Assembly, exercised through its Permanent Legislative Committee:

1. To approve or deny the request of the Executive Organ to declare a state of siege and to suspend constitutional guarantees;

2. and to approve or disapprove proposals for decree-laws submitted by the Executive.

i. In short, it is claimed that the people have lost most of the administrative and legislative powers formerly exercised through directlty-elected representatives. The current National Assembly is unable to serve as a check upon the Executive power. Its power of approval or disapproval has been drastically limited; it has lost its investigatory powers, its power of censure, its power to enact legislation, its powers of appointment, and its judicial power has been curbed.

5. The Maximum Leader of the Panamanian Revolution.

As previously mentioned in Chapter One (p. 11), Article 277 of the Transitory Provisions recognizes Brigadier General Omar Torrijos as the Maximum Leader of the Panamanian Revolution and gives him effective control of the Republic. He has broad powers "to coordinate all work of the public administration," "to approve the execution of contracts and the negotiation of loans," and "to direct foreign relations." He is Commander in Chief of the National Guard, and appoints "the chiefs and officers of the Public Forces." He controls the administration of justice, as previously explained in detail, through his power of appointment of the Magistrates of the Supreme Court, the Attorney General, and the Solicitor General. And he controls the legislative process through his power to appoint and remove freely the Ministers of State and members of the Legislative Commission.

6. The Presidency

Under the present Constitution, the President and Vice-President of the Republic are to be elected by the members of the National Assembly. Based on electoral data of 1972, the simple majority needed for election under the current system could have been obtained with the votes of 254 representatives from districts with less than 88,746 total voters as compared with the nationwide total of 531,362 voters. If those 254 electors won with an average 50% of the vote in their district, then the President named by them would represent only 44,373 voters. These figures show that eight per cent of the voting population is sufficient to elect the President under the present Constitution.6

Should a President with full constitutional powers be named by the National Assembly in October of 1978, he will enjoy practically the same powers now exercised by the Maximum Leader of the Revolution at present. Under the Constitution, the President alone coordinates all the work of the Public Administration, conducts foreign relations, appoints and dismisses freely the Ministers of State and members of the Legislative commission. (Art. 163) He appoints the Controller General and Deputy Controller General and the heads of autonomous and semiautonomous entities. (Art. 163) As demonstrated in Chapter Four (p. 70), he controls the judiciary by appointing the Magistrates of the Supreme Court, the Attorney General and the Solicitor General, and their alternates. (Art. 164) He names the Chief and officers of the Public Forces in accordance with the Constitution, the law and the Military Register. And he controls the principal legislative organ--the National Legislative Council--which is made up of the President, Vice-President, the President of the National Assembly, the Ministers of State and the members of the legislative Commission. Only two members of the Council are not named and freely removable by the President--the Vice-President and the President of the national Assembly.

The President is also able to exercise influence over the "autonomous Electoral court described in Article 126. It is composed of three Magistrates elected for seven years, one by the national Assembly, one by the Supreme Court of Justice, and one by the executive organ. The Head of Government who names the Magistrates of the Supreme Court in 1972, in effect, controls the appointment of two of the three members of the Electoral Court, who serve until 1979. Should the Head of Government be elected to the Presidency in 1978, his Supreme Court will still be in office, and he will be able to name two of the three members of the Electoral Court for another seven years. And when the terms of the Supreme Court judges are up in 1982, he will be able to pack the Supreme Court for another ten years.

The appointive powers of the President make it possible for him to exercise his influence at the lowest level of administrative and judicial authority. He may appoint and dismiss freely the Governors of the Provinces (Art. 164). The Governor, in turn, is empowered to present the Municipal Council wit a list of three candidates from which it must choose the Mayor (Alcalde de Distrito) and his alternate. (Art. 216) The Mayor serves as head of the Municipal Council and chief of police in his district, and according to the Constitution, cannot be suspended or removed by the national administrative authorities. (Art. 210) However, the Governor may suspend the Mayor (Law No. 106, 8 October 1973), and of course, the Governor is subject to the President.

In some cases the Mayor names members of the Municipal Council. The Council is made up of a minimum of five representatives in the National Assembly, but if the number of representatives in a district is less than five, then the Mayor, in agreement with the representatives, appoints as many persons as necessary to fill the remaining posts. (Art. 212) From a list of candidates presented by the representatives, the Mayor also selects the corregidores, who serve as a type of administrative official and justice of the peace in settling minor civil disputes. The average citizen may have an opportunity to participate in government through appointment, but his participation through suffrage counts for very little under the present system.

Notes_____________________

1 American Convention on Human Rights

Article 23. Right to Participate in Government

1. Every citizen shall enjoy the following right and opportunities:

a. to take part in the conduct of public affairs, directly or through freely chosen representatives;

b. 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; and

c. to have access, under general conditions or equality, to the public service of his country.

2. The law many regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.

2 Dirección de Estadística y Censo "Estadística Panameña. Estadística Electoral. Elecciones de 1972."

3 Eusebio Marchosky, "¿Asamblea Representativa?," Diálogo Social, 9 de marzo de 1974.

4 Chart compiledfrom Estadística Panameña, cited above.

5 Marchosky, op. cit.

6 Figures based on data from Estadística Panameña.