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Panama - Government

Panamas current constitution backs to 1972, and many sectors of the Central American nation have been pushing for many years to make some changes. Panamanian president-elect, Laurentino Nito Cortizo, stated 06 May 2019 that the long sought-out constitutional reforms are among his priorities for the first 100 days of his administration. "The reforms to the Constitution are important and we have to act quickly, put speed into it, and for that, we will use the document that was presented to the National Agreement Council," Cortizo said.

Many sectors of the Central American country had been pushing for many years to make some changes. The reforms address pressing issues including a second presidential round, the election of national legislators, a new mechanism to select judges for the Supreme Court of Justice, and a system where the States Prosecutor would channel anti-graft accusations in the aftermath of corruption scandals, such as the Panama Papers and Odebrecht.

The National Agreement Council made up by the private and public sector, as well as civil society, will prepare the reform package. Cortizos idea is that in these months we get the document to present it to the National Assembly and be approved without modifications, as established in article 313 numeral 2 of the Constitution, in two debates to then submit it to a referendum." To achieve this, he needs to negotiate with the outgoing president, Juan Carlos Varela, as the first debate would have to happen with the current legislators before the next Congress comes into power on July 1. With the newly elected lawmakers, the second debate would be approved then passed on for the Executive power to call a referendum for final and popular approval.

The last constitutional reform was carried out in 2004 under the presidency of Martin Torrijos, son of Omar Torrijos. Cortizo from Democratic Revolutionary Party (PRD) - created in 1979 by Torrijos - won on Sunday by a margin of two percent of the votes and gaining 31 seats in the National Assembly, close to the 36 needed for a majority, which will likely mean he will have the complete support of the legislative body.

Panama has three branches to its representative democracy: the executive (comprising the President and one Vice-President), the legislative - a 71 member single chamber assembly, and the judiciary. This comprises a nine-member Supreme Court of Justice (each appointed for a ten year period), five superior courts and a court of appeal and includes all tribunals and municipal courts. The President serves one term of 5 years. Elections for President and the single chamber legislative assembly are held at the same time. An autonomous Electoral Tribunal supervises voter registration, the election process, and the activities of political parties. Anyone over the age of 18 may vote.

There are a number of important legacies from the period of military dictatorship that continue to shape the Panamanian political scene today. The current constitution, written in 1972, created a state structure that favors a strong executive branch. It also has a number of other provisions designed to allow the government to exercise control over its citizens. These include the broadest possible immunity of legislators, judges and highranking executive branch officials, and laws designed to control the press, including criminal penalties for libel.

The governmental processes envisioned under this constitution were not designed with clear and accessible points of entry for either citizens or civil society organizations. Nor was there any thought given to issues like transparency, public service or mechanisms of accountability. To this day, concepts such as conflict of interest, transparency, accountability and the importance of a stable civil service appear not to be widely understood. In essence, these concepts, which form the basis for responsive and effective democracy, are largely absent from political practice.

Once the dictatorship was overthrown in 1989, the constitution remained in force without major political reforms. Thus the entire structure and tenor of the governing apparatus of the state is more suitable for an authoritarian rather than a democratic regime. In fact, one informed interviewee commented that changing the current constitution would not suffice to bring it into line with modem democratic practices.

The executive in Panama, as in many developing nations, is inappropriately strong. In the case of Panama, much of this dominance by the executive, and the constitutional and legal frameworks which support it, are a legacy of the dictatorship. For example, the absolute immunity for legislators, judges and key government officials has been part of the county's constitution since it was written in 1972. These artifacts of the dictatorship appear to be just as useful to democratically elected governments as they were to the generals who drafted them.

Numerous other government institutions and procedures also serve to support this concentration of power, which further undennines the system of checks and balances. The Contralor (Auditor General), a political appointee, is the only government official who can authorize an investigation or prosecution against a government official, and is generally perceived to be under the explicit direction of the president. The Procurador General (Attorney General), who is appointed for a term of 10 years by the president and approved by the legislature, is seen as a political operative who also responds to the executive. The various Fiscales (prosecutors) are named by the Attorney General and, thus, are also under the control of the executive.

Each legislator represents a maximum of 40,000 inhabitants within the Circuit. Only political parties may propose candidates for the legislature. For each legislator the voters also choose two alternates, who are elected in the same fashion and are empowered to act in the absence of the nominal member according to the order in which they were elected. Though attendance records are not published, it is said that without alternates it would often be impossible to form a quorum.

Article 144 of the Constitution states that "Legislators act in the interest of the Nation," and that they "represent their respective political parties and those who elected them." However, because support for party positions and national concerns takes precedence over the needs of local constituents, there appears to be no viable channel for citizens to voice their concerns in the capital. Indeed, the legislators interviewed stated that their job is to represent national interests, not those of their respective constituencies. Because of this, plus evidence of flagrant corruption by members, the Legislative Assembly is thoroughly repudiated by other parts of the government, as well as by the general public. This results in a lack of willingness to serve on the part of the most highly qualified professionals who do not wish to be associated with the legislature, preferring instead more lucrative and prestigious positions in the private sector.

In October 2004 Martin Torrijos' government approved a package of constitutional reforms. The entire constitutional revision process -- from its post-May 2004 national election start to its November 15 appearance in the national register -- took only five months. While most of the changes are clear improvements, some observers claim that the amendments mostly are superficial "patches" to a dictatorship-era constitution that should be completely rewritten. The principal constitutional amendments aim to:

  • reduce the number of elected officials
  • reduce the transition period between administrations
  • limit legislative immunity, change the legislature's name from "Legislative Assembly" to "National Assembly" and change the title of legislators to "diputados," a semantic move to expand their national law-making purview
  • prohibit the President from appointing Supreme Court Justices directly from the Cabinet or legislature
  • mandate a referendum to ratify and plan for Canal expansion, and
  • define a mechanism for convoking a Constituent Assembly (Constituyente)

Key amendments included the reduction of the legislative assembly from 78 to 71 seats, shortening of the interval between elections and the installation of the new government from four months to two months and a reduction in the number of substitute legislators elected from two to one.

The constitutional reforms reduced government payrolls by cutting the number of Vice Presidents from two to one, cutting the number of legislative seats to 71 (fixed) from 78 (variable, tied to population), reducing the number of legislative alternates from two to one per legislator, and reducing the number of Deputy Mayors from two to one. Those changes took effect after the 2009 election.

The revised constitution cut the transition time between new administrations and legislatures to two months (from four). Future Inauguration Days will fall on July 1 instead of September 1. All officials elected on May 1, 2004 will finish their terms two months "early" on June 30, 2009. Many Panamanians complained about the four-month transitions between the Moscoso and Torrijos administrations, noting that the lengthy period created virtual paralysis on policy and decisionmaking -- with the notable exception of the constitutional reforms themselves.

The new constitution permits the Supreme Court, without Assembly permission, to investigate legislators involved in unethical and/or illegal actions, a change that sharply reduces legislative immunity. Except for one notorious 1994 case when a legislator was caught in the act of bribing businessmen, the Assembly had rejected all Public Ministry requests to investigate its members, including Carlos Afu, who became notorious for waving what he claimed was a down payment on thousands of dollars in bribe money before television cameras in 2002.

While the law provides for an independent judiciary, the judicial system was inefficient and susceptible to corruption and outside influence, and faced allegations of manipulation by the executive branch.

There were two judicial systems operating during 2016, as the country completed its transition to an accusatory justice system in September, but cases opened prior to September 2 in the countrys largest judicial districts (Panama, Colon, Darien, and Guna Yala continued to be tried under the old inquisitorial system. Under the inquisitorial system, the prosecutors office issues detention orders based on evidence. The law provides for suspects to be brought promptly before a judge. Lack of prompt arraignment continued to be a problem for cases tried under the old system; under the new system, a magistrate must arraign suspects expeditiously.

The government regularly imprisoned inmates under the inquisitorial system for more than a year before a judges pretrial hearing, and in some cases pretrial detention exceeded the minimum sentence for the alleged crime. As of July 2016 according to government statistics, 66 percent of prisoners were pretrial detainees. Some criticized the judiciary for applying unequal pretrial restrictive measures for individuals facing substantially similar charges.

Under the accusatory system, trials are open to the public. Judges may order the presence of pretrial detainees for providing or expanding upon statements or for confronting witnesses. Trials are conducted based on evidence presented by the public prosecutor. Defendants have the right to be present at trial and to consult with an attorney in a timely manner. Defendants may confront or question adverse witnesses and present their own witnesses and evidence. Defendants and their attorneys have access to relevant government-held evidence. Defendants have a right of appeal. The law extends these rights to all citizens, and the judiciary generally enforced them.

The country is divided into nine provinces and several indigenous territories (Comarcas), which are subdivided into municipalities which, in turn, are divided into corregimientos. Provincial Governors are appointed by the president, while Representantes de Corregimiento and local Mayors are elected. Mayors appoint local law enforcement officers (Corregidores) and, together, Mayors and Representantes de Co"egimiento form the Municipal Council. Because those Representatives seek to serve the interests of their own constituents, rather than those of the municipality as a whole, as members of the Council, they often vote against the Mayor. Moreover, those Representatives appoint the municipal Treasurer. This often results in rivalry between appointed and elected officials and the lack of incentives for cooperation.

Therefore, sub-national government institutions are extremely weak and play only a minor role in the country's democratic life. This is exacerbated by the low level of education and professional capacity of local officials, who deal only with such matters as the issuance of business permits and automobile license plates and simple legal issues of low monetary value. Municipal income is negligible, and national government transfers suffice only to pay a few salaries and basic utilities. There are no funds for the development of projects.

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