Cablegate: Panama's Legislature Approves Constitutional

Published: Tue 3 Aug 2004 09:15 PM
This record is a partial extract of the original cable. The full text of the original cable is not available.
E.O. 12958:N/A
SUBJECT: Panama's legislature approves constitutional
reform package in record time; concurrence by next
legislature required
REF: Panama 01764
Summary/Comment: Reform package surmounts apathy
1. (SBU) Although many thought them dead a month ago, in
only 21 calendar days Panama's Legislative Assembly
approved a package of 67 constitutional reforms that most
Panamanians view favorably. They began as legislator Jerry
Wilson's 90-page proposal on behalf of the opposition
Democratic Revolutionary Party (PRD). (NOTE: The PRD will
control the presidency and a majority of legislative seats
after September 1. END NOTE.) The final package
incorporates additions from ruling Arnulfista Party
legislators, plus input from others who approached the
Government Committee before plenary discussions. Per
Article 308 of Panama's constitution, President-elect
Torrijos (PRD) must present the reform package to the newly
elected legislature immediately after taking office on
September 1. The legislators who take over on September 1,
must then ratify the reform package that their predecessors
approved for it to be implemented. We expect this to
2. (SBU) The poorly attended July 5-28 "extraordinary
sessions" captivated public attention much less than the
USG revocation of a former cabinet minister's tourist visa
for corruption. One normally vocal advocate of
constitutional reform told PolOffs that she gave up trying
to contribute to the debate because her concerns were not
reflected in changes made to the original proposal.
Several legislators have used the reform process to air
petty internal party disputes inappropriate for a plenary
debate in the Legislative Assembly. End Summary/Comment.
What's changed -- the short version
3. (SBU) Only about 20 of the 67 reforms are substantive.
Most just refine previous Articles with updated
terminology, clearer drafting and formatting, and better
punctuation. Substantive reforms go from reducing the
number of elected officials to establishing a "Tribunal de
Cuentas." Among other things, the reform package:
---reduces the number of elected officials and the inter-
regnum period between administrations,
---reduces legislative immunity,
---prohibits the President from appointing Supreme Court
Justices directly from his/her Cabinet or the legislature,
---mandates a referendum to ratify any plan for Canal
---maintains the Comptroller General's right to exercise
pre-disbursement control over government expenditures, and
---defines a mechanism for convoking a Constituent Assembly
(Constituyente). (NOTE: Closed-door PRD and Arnulfista
negotiations led to this response to the most consistent
civil society constitutional reform demand. The new text
prohibits a Constituyente from cutting the term of elected
officials, alleviating PRD fears that it could be hurt if
one were convoked during the next five years. END NOTE.)
4. (SBU) The constitutional reform package calls for
several cuts to reduce the GOP payroll as well as
government bloat, such as: (i) cutting the number of Vice
Presidents from two to one, (ii) cutting the number of
legislative seats to 71 (fixed) from 78 (variable, tied to
population), (iii) reducing the number of legislators'
alternates from two to one each, and (iv) reducing the
number of Deputy Mayors from two to one. If the reforms
were implemented, the reduced depth chart would take effect
from 2009 (the next election) forward.
5. (U) Most Panamanians welcome elements of the reforms
that impact the terms served by elected officials. The
reforms would cut the transition period between
administrations in half to two months, making Inauguration
Day July 1 instead of September 1. Legislative sessions
would be from January 2-April 30, and July 1-Oct 31
(instead of March 1-June 30 and Sept 1-Dec 31). Under the
reformed constitution, all officials elected on May 2, 2004
(from President-elect Torrijos down) would finish their
terms two months "early" on June 30, 2009. The reforms
stipulate that the Executive must submit the national
budget to the Assembly within the first legislative
sessions of the year instead of in October.
Recount of legislative debate
6. (SBU) From July 5-19, amidst a lamentable hush from
civil society, the Assembly discussed constitutional
reforms in first debate sessions that barely made a quorum.
On average, 40 of 71 sitting legislators approved each of
71 proposed reforms during the first of three required
debates. A key Assembly staffer expressed concern to
PolOffs about the lack of commitment and true interest by
the majority of the legislators. "Only about 20% of the
legislators are following the debate and the rest are
sending their alternates (suplentes) to attend sessions,"
he claimed. Rumors of secret negotiations between the
Moscoso administration and the PRD overshadowed plenary
discussions and exasperated proponents of a Constituyente,
who called for a new presidential decree ending debate.
7. (SBU) After a two-day impasse, President Moscoso agreed
to extend "extraordinary" legislative sessions to permit
the required second and third rounds of debate. Moscoso
used Catholic Church and the University of Panama
complaints as a pretext to stall, but internal Arnulfista
spats were the real cause for the delay. Only 67 reforms
passed second and third debates. Of note, the Assembly
eliminated a contentious reform submitted by the
Arnulfistas that would have allowed legislators to summon
Justices to be questioned on court-related issues. Plenary
consensus on the latter provision was impossible even
though it barred Justices being summoned based on specific
decisions. Chief Justice Cesar Pereira Burgos warned
Assembly President Jacobo Salas after first debate that
such a reform would violate the separation of powers.
Legislative immunity reduced
8. (SBU) One of the most welcome reforms was the reduction
of legislative immunity, considered by many to be a shield
to protect legislators involved in unethical and/or illegal
actions. If the reform is implemented, the Supreme Court
could investigate legislators without Assembly clearance.
Except for one notorious 1994 case when a legislator was
caught in the act bribing businessmen, all other requests
from the Public Ministry to investigate legislators have
been rejected. Sadly, the list of Assembly refusals to
waive immunity includes Carlos Afu, who waved what he
claimed was bribe money in the air on national television.
Changes affect the Comptroller General
9. (SBU) A passionate appeal from several former
Comptrollers General (Reftel) saved pre-disbursement
control ("control previo") from the chopping block. A
revised Article 276 would establish a "Tribunal de Cuentas"
to investigate, prosecute and rule on mal/misfeasance in
the management of government accounts. Currently, the CG
him/herself has those roles, but the reforms dictate that
the CG would have to submit the cases to a special court.
If implemented, the reform mandates legislation to define
the composition and operations of such a court, plus the
pre-requisites for its magistrates.
Changes to the Judicial Branch
10. (SBU) The most publicized judicial reform would forbid
appointments to the Supreme Court of anyone currently
holding a legislative or Cabinet seat. The reform targets
President Moscoso's most recent appointments to the Court,
but would allow Presidents (including Torrijos) to appoint
individuals who have served as legislators or cabinet
members in previous administrations. Rumored future
Justices include hardline PRDs who President-elect Torrijos
wants to reward for their service to the party, to distance
from his administration, or both.
11. (SBU) Another reform would require that alternates
("suplentes") for Justices be appointed from within the
judicial branch, whereas currently the President appoints
them (like the principals). (NOTE: Suplentes are often
active members of prominent law firms, not full time
judicial employees. Their firms may have an interest in
the very cases the suplentes are ruling on. END NOTE.)
Some constitutional lawyers disagree with this provision,
claiming that it could alter the "internal independency" of
the judicial branch. It could also lead subordinate judges
to feel intimidated by their absent superiors when ruling.
The proposal that Justices be assigned to the Court by law
rather than the Constitution didn't pass for fear that a
sitting President could pack the court to his/her
12. (SBU) Article 221 establishes that the Attorney
General (AG) and the Solicitor General (SG) will no longer
have appointed alternates. The AG and the SG will appoint
his/her alternates from within his/her offices to fill in
during absences. Some fear that this reform will increase
the AG's ability to influence the alternate. Alternates in
the past (including the recent past) have rebelled when the
principal was absent, in several instances for the better.
Electoral Tribunal gains Independence & Stability
13. (SBU) Reforms approved to Article 137, paragraph 9
would allow the Electoral Tribunal (TE) to prepare its own
budget and present it directly to the Legislative Assembly
instead of seeking Executive Branch approval. The
Comptroller General's Office would audit TE expenditures
after the fact. The reforms would also prohibit Supreme
Court oversight of electoral matters. (NOTE: The case of
legislator Carlos Afu's ejection from the PRD was never
resolved after the Supreme Court snatched it away from the
TE on questionable grounds. Afu's "defection" to the
Arnulfista Party eliminated the basis of the case. END
NOTE.) A reformed Article 159 would allow the TE to
present bills directly to the Legislative Assembly for
consideration rather than through the executive branch.
Finally, to avoid all three electoral magistrates leaving
simultaneously, the revised constitution stipulates that
they be appointed for staggered 10-year terms. To achieve
this, when all three magistrates leave in 2006 one new
magistrate would be appointed for ten years, another for
eight and a third for six. Their successors would be
appointed for ten-year terms.
Contempt out and wiretaps in
14. (SBU) The reforms would eliminate Paragraph 1 of
Article 33, which allows judges and justices to impose a
sanction (either jail or penalties) without trial to anyone
they considered has "offended them or shown no respect for
them". One outrageous case came to light several years ago
when then-Chief Justice Arturo Hoyos sent a lawyer to jail
because he considered that the lawyer had "disrespected"
him verbally. (COMMENT: This item is similar in spirit to
contempt provisions in the US, but capricious application
has made it problematic. END COMMENT.) On a related
issue, the Arnulfistas were unable to garner PRD votes to
support the elimination of criminal charges for libel and
slander as that reform fell victim to short-sighted party
15. (SBU) The current constitution forbids wiretapping;
however after passing the anti-money laundering bill in the
1990's, the Attorney General's office has allowed
wiretapping in certain cases. Many lawyers and even judges
and justices had widely different positions on the
practice, ranging from vehement criticism to quiet
applause. The reform would allow wiretapping with prior
authorization for a specific purpose. If not, information
obtained from wiretaps would not be admissible as evidence
and whoever eavesdrops on telephone conversations without
prior authorization would be subject to criminal charges.
Political parties democratized -- sort of
16. (SBU) One reform would require political parties to
have a democratic internal structure and operating
procedures. The change reflects Arnulfistas' concern about
the way that President Moscoso has imposed her will on the
party and PRD criticism of the same. On the other hand,
despite the widespread belief that it is a liability to the
democratic system, the Assembly maintained the
constitutional norm that allows a political party to unseat
one of its members from the legislature ("revocatoria de
mandato"). (COMMENT: This is a convenient way for large
and small parties alike to enforce voting along party
lines. Then again, the reformed constitution would allow
constituents to "recall" independent legislators under
certain conditions. This may discourage independents from
running for the Assembly. END COMMENT.)
Reforms with presidential fingerprints
17. (SBU) The first two reforms in the package clearly
reflect President Moscoso's and President-Elect Torrijos'
personal interests. Article 11 of the Panama's
constitution states that foreign adopted children of
Panamanian nationals can only become Panamanians when they
"reach 18 years and clearly state their wish to keep
residing in Panama." The reform would drop the age
requirement, which means that Moscoso's 13-year-old son,
adopted in Costa Rica, could soon be naturalized. The
Reformed Article 19 would prohibit discrimination based on
disabilities. President-elect Torrijos' daughter Daniela
is a child with special needs.
Comment: Fallout and follow-up
18. (SBU) Despite concerns that a lack of political will
(particularly from the Moscoso administration) would stop
the reforms, closed-door negotiations once more prevailed
to move things along. The PRD and the Arnulfistas (as
applicable) may now exalt President-elect Torrijos'
"initiative" and trumpet GOP "cooperation." Critics
believe that the reforms were not studied carefully and may
challenge at least one before the Supreme Court. For
instance, the reform to Article 141 that caps the total
number of legislators grants a fixed number of seats to the
Kuna (2) and Ngobe-Bugle (3) indigenous groups. Since
those legislators would represent smaller populations than
the others, their influence in the Assembly would be
disproportional, allowing 4% of Panama's population to
control 7% of its legislators. Their privileged positions
would violate Article 19 of Panama's constitution if
considered racially discriminatory.
19. (SBU) Civil society has lukewarmly welcomed the
establishment of a procedure for calling a Constituent
Assembly (Constituyente). The reformed Article 308 of the
Constitution would allow a Constituyente to be convoked:
(i) by the executive branch (with the approval of the
Legislative Assembly), (ii) by a 2/3 Legislative Assembly
vote, or (iii) at the petition of 20% of the population age
18 or greater (about 380,000 people) whose signatures were
collected within six months. In a six to nine month
period, the Constituyente (composed of 60 elected
representatives) could reform part or all of the
constitution, but not introduce retroactive changes or
alter the terms of sitting elected officials. Constituent
Assembly reforms would then be submitted to a national
referendum. Those who feel that the reform package is not
enough are rumored be waiting for a September ratification
by the new Legislative Assembly to start collecting
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