The Governmental System

The Governmental System

As is the case throughout most of Latin America, constitutional power in Panama--although distributed among three branches of government--is concentrated in the executive branch. The 1978 and 1983 amendments to the Constitution decreased the powers of the executive and increased those of the legislature, but the executive branch of government remains the dominant power in the governmental system as defined by the Constitution.

The executive organ is headed by the president and two vice presidents. They, together with the twelve ministers of state, make up the Cabinet Council, which is given several important powers, including decreeing a state of emergency and suspending constitutional guarantees, nominating members of the Supreme Court, and overseeing national finances, including the national debt. These officials, together with the FDP commander, attorney general, solicitor general, president of the Legislative Assembly, directors general of various autonomous and semiautonomous state agencies, and president of the provincial councils, make up the General Council of State, which has purely advisory functions.

The president and the two vice presidents, who must be nativeborn Panamanians and at least thirty-five years of age, are elected to five-year terms by direct popular vote. Candidates may not be related directly to the incumbent president or have served as president or vice president during the two preceding terms. Should the president resign or be otherwise removed from office, as was the case with President Ardito Barletta in 1985, he is replaced by the first vice president, and there is no provision for filling the vacancy thus created in the vice presidential ranks.

Under the Constitution, the president has the exclusive right to appoint or remove ministers of state, maintain public order, appoint one of the three members of the Electoral Tribunal, conduct foreign relations, and veto laws passed by the Legislative Assembly. In theory a veto may be overridden by a two-thirds majority vote of the assembly. In addition, many powers are exercised by the president jointly with the appropriate individual cabinet member, including appointing the FDP high command, appointing and removing provincial governors, preparing the budget, negotiating contracts for public works, appointing officials to the various autonomous and semiautonomous state agencies, and granting pardons. The president's power to appoint and remove cabinet members would seem to make the requirement for operating with the consent of the cabinet largely a formality, but the FDP and its allies in the PRD frequently have dictated the composition of the cabinet, using this as a means to exercise control over the president.

The two vice presidencies are relatively powerless positions, but since three vice presidents have succeeded to the presidency during the 1980s, the posts are not insignificant. The first vice president acts as chief executive in the absence of the president, and both have votes in the Cabinet Council.

The ministers of state include the ministers of agriculture, commerce and industries, education, finance, foreign relations, government and justice, health, housing, labor and social welfare, planning and economic policy, presidency, and the public works. There is no ministry directly representing or having jurisdiction over the FDP. Nevertheless, the minister of government and justice has nominal authority over the FDP's police functions, along with control over prisons, civil aviation, and internal communications, making this one of the most powerful cabinet posts. This ministry also supervises local government in the Comarca de San Blas as well as in the nine provinces, thus exerting central government control over local affairs.

The Legislature

The 1983 amendments to Panama's Constitution created a new legislative organ, the Legislative Assembly, a unicameral body with sixty-seven members, each of whom has an alternate. Members and alternates are elected for five-year terms that run concurrently with those of the president and vice presidents. To be eligible for election, an individual must be at least twenty-one years of age and be a Panamanian citizen either by birth or by naturalization with fifteen years of residence in Panama subsequent to naturalization. The legislature holds two four-month sessions each year and may also be called into special session by the president.

In theory, the assembly has extensive powers. It can create, modify, or repeal laws, ratify treaties, declare war, decree amnesty for political offenses, establish the national currency, raise taxes, ratify government contracts, approve the national budget, and impeach members of the executive or judicial branches. There are, however, significant limitations on these powers, both in law and in practice. Members are nominated for election by parties, and the parties may revoke their status as legislators. This gives the official government party, the PRD, and its allies the power to ensure conformity with government policy and prevent defections from its ranks. Moreover, there are no provisions for legislative control over the military. The legislature also is severely limited in its ability to control the budget. Under Article 268 of the Constitution, the assembly is prohibited from adding to the budget submitted by the executive without the approval of the Cabinet Council. It may not repeal taxes included in the budget unless, at the same time, it creates new taxes to make up any revenue lost.

Differences in practice are also important. Since its creation, the assembly has never rejected an executive nomination for a government post, refused to ratify a treaty, or turned down an executive request for grants of extraordinary powers or for the establishment or prolongation of a state of emergency. The opposition, which held twenty-two seats in late 1987, has used the assembly as a forum to attack government policies and to criticize the role played in the administration by the FDP, but it has been unable to block or even seriously delay any government project. Assembly debates normally are broadcast live, but during the disturbances of June 1987, speeches by opposition members frequently were not carried on the radio.

The lack of institutional independence also has inhibited the development of local or special interest representation within the assembly. The tight control over the selection of candidates and their subsequent performance as legislators by their respective parties works against such representation, as does the dominance of the executive branch. This control is further strengthened by the fact that elections are held only every five years and occur in conjunction with presidential elections.

Should political conditions change in Panama and the dominant role of the military be significantly reduced, the Legislative Assembly has the potential to emerge as a significant participant in the national political process, but its powers would still be less extensive than those exercised by the executive branch. Under the circumstances existing in late 1987, it lacked both the power and the will to block, or even significantly modify, government projects and served largely as a public debating forum for government supporters and opponents.

The Judiciary

The Constitution establishes the Supreme Court as the highest judicial body in the land. Judges must be Panamanian by birth, be at least thirty-five years of age, hold a university degree in law, and have practiced or taught law for at least ten years. The number of members of the court is not fixed by the Constitution. In late 1987, there were nine justices, divided into three chambers, for civil, penal, and administrative cases, with three justices in each chamber. Judges (and their alternates) are nominated by the Cabinet Council and subject to confirmation by the Legislative Assembly. They serve for a term of ten years. Article 200 of the Constitution provides for the replacement of two judges every two years. The court also selects its own president every two years.

The Constitution defines the Supreme Court as the guardian of "the integrity of the Constitution." In consultation with the attorney general, it has the power to determine the constitutionality of all laws, decrees, agreements, and other governmental acts. The court also has jurisdiction over cases involving actions or failure to act by public officials at all levels. There are no appeals from decisions by the court.

Other legislation defines the system of lower courts. The nation is divided into three judicial districts: the first encompasses the provinces of Panamá, Colón, and Darién; the second, Veraguas, Los Santos, Herrera, and Coclé; the third, Bocas del Toro and Chiriquí. Directly under the Supreme Court are four superior tribunals, two for the first judicial district and one each for the second and third districts. Within each province there are two circuit courts, one for civil and one for criminal cases. The lowest regular courts are the municipal courts located in each of the nation's sixty-five municipal subdivisions. In the tribunals, the judges are nominated by the Supreme Court, while lower judges are appointed by the courts immediately above them.

The Constitution also creates a Public Ministry, headed by the attorney general, who is assisted by the solicitor general, the district and municipal attorneys, and other officials designated by law. The attorney general and the solicitor general are appointed in the same way as Supreme Court justices, but serve for no fixed term. Lower-ranking officials are appointed by those immediately above them. The functions of the Public Ministry include supervising the conduct of public officials, serving as legal advisers to other government officials, prosecuting violations of the Constitution and other laws, and arraigning before the Supreme Court officials over whom the Court "has jurisdiction." This provision pointedly excludes members of the FDP.

Several constitutional provisions are designed to protect the independence of the judiciary. These include articles that declare that "magistrates and judges are independent in the exercise of their functions and are subject only to the Constitution and the law;" that "positions in the Judicial Organ are incompatible with any participation in politics other than voting;" that judges cannot be detained or arrested except with a "written order by the judicial authority competent to judge them;" that the Supreme Court and the attorney general control the preparation of the budget for the judicial organ; and that judges "cannot be removed, suspended, or transferred from the exercise of their functions except in cases and according to the procedures prescribed by law."

The major defect in the judicial system lies in the manner in which appointments are made to the judiciary. Appointments of judges and of the attorney general are subject to the approval of the Legislative Assembly, but that body has functioned as a rubber stamp for candidates selected by the executive. Lower-level appointments, made by superiors within the judicial organ, are not subject to assembly approval. In addition, the first two Supreme Court justices appointed after the 1984 elections were both former attorneys general, closely associated with the government and even involved in some of its most controversial actions, such as the investigation of the murder of opposition leader Spadafora. As a result, the opposition has denounced regularly the judicial system for being a political organ controlled by the FDP and the PRD. Numerous external observers, including the Inter-American Commission on Human Rights of the Organization of American States (OAS), the United States Department of State, and various human rights organizations, also have criticized the lack of independence of the Panamanian judiciary and of the Public Ministry.

State Agencies and the Regulation of Public Employees

In addition to the three branches of government, the state apparatus includes numerous independent or quasi-independent agencies and institutions that function in a variety of ways. The most important of these is the three-member Electoral Tribunal. The Constitution provides that the executive, legislative, and judicial branches of government will each select one of the members of this body. The tribunal is charged with conducting elections, tabulating and certifying their results, regulating, applying, and interpreting electoral laws, and passing judgment on all allegations of violations of these laws. The tribunal also conducts the registration of voters and the certification of registered political parties and has jurisdiction over legal disputes involving internal party elections. Its decisions are final and may be appealed only in cases where the tribunal is charged with having violated constitutional provisions. Although the tribunal may pass judgment on charges of violations of electoral laws and procedures, the prosecution of those charged with such violations is in the hands of the electoral prosecutor, an individual independent of the tribunal who is appointed by the president for a single term of ten years.

While autonomous in theory, in practice the Electoral Tribunal has consistently followed the dictates of the government and the FDP. This was exemplified most clearly in the decision to certify the results of the 1984 elections, dismissing all charges of fraud and other irregularities. The position of the electoral prosecutor is even more subject to administrative control. The opposition parties consistently have attacked the lack of independence of the tribunal and the prosecutor and have refused to participate in tribunal-controlled projects aimed at reforming the electoral code in preparation for the 1989 elections. President Eric Arturo Delvalle Henríquez urged broad participation in such efforts and promised to appoint a member of the opposition to the tribunal, but such actions did not satisfy the opposition. The tribunal, itself, has declared that it is not provided adequate funds for the tasks with which it is charged.

The Constitution also provides for an independent comptroller general who serves for a term equal to that of the president and who may be removed only by the Supreme Court. The comptroller is charged with overseeing government revenues and expenditures and investigating the operations of government bodies. Although independent in theory, in practice holders of this office have virtually never challenged government policy.

Quasi-independent governmental commissions and agencies include the National Bank of Panama; the Institute of Hydraulic Resources and Electrification, which is in charge of the nation's electrical utility; the Colón Free Zone; and the University of Panama. Other state agencies and autonomous and semiautonomous agencies function in various capacities within the social and economic system of the nation.

Public employees, defined by the Constitution as "persons appointed temporarily or permanently to positions in the Executive, Legislative, or Judicial Organs, the municipalities, the autonomous and semiautonomous agencies; and in general those who collect remuneration from the State" are all to be Panamanian citizens and are governed by a merit system. The Constitution prohibits discrimination in public employment on the basis of race, sex, religion, or political affiliation. Tenure and promotion, according to Article 295, are to "depend on their competence, loyalty, and morality in service." Several career patterns relating to those in public service are outlined and standardized by law. The Constitution also identifies numerous individuals, including high political appointees, the directors and subdirectors of autonomous and semiautonomous agencies, secretarial personnel, and temporary employees, who are exempted from these regulations. In addition, the Constitution stipulates that a number of high government officials, including the president and vice president, Supreme Court justices and senior military officials, must make a sworn declaration of their assets on taking and leaving office. In practice, these provisions often are ignored or circumvented. Public employment is characterized by favoritism, nepotism, and a tendency to pad payrolls with political supporters who do little if any actual work.

Provincial and Municipal Government

The nine provincial governments are little more than administrative subdivisions of the central government. Article 249 of the Constitution states that "in each province there shall be a Governor freely appointed and removed by the Executive who shall be the agent and representative of the President within his jurisdiction." In addition, each province has a body known as the Provincial Council, composed of district (corregimiento) representatives. The governor, mayors, and additional individuals "as determined by the law" also take part in each council, but without voting rights. The powers of these councils are largely advisory, and they lack actual legislative responsibility. The Comarca de San Blas, inhabited largely by Cuna Indians, has a distinct form of local government headed by caciques, or tribal leaders.

In contrast, the nation's sixty-five municipal governments are "autonomous political organizations." Although closely tied to the national government, municipal officials, under Article 232 of the Constitution, may not be removed from office by the national administration. In each municipality, the mayor, the director of municipal administration, and their substitutes (suplentes) are directly elected for five-year terms. There is, however, an additional constitutional provision that the Legislative Assembly may pass laws requiring that officials in some or all municipalities are to be appointed by the president rather than elected. In 1984 municipal officials were elected in a separate election, held on short notice after the election of the president and the legislature. Opposition parties protested the timing and conditions of these elections, but participated. The great majority of offices, including those in the capital, were won by progovernment candidates, but opposition parties did gain control of a few municipalities, notably in David, capital of Chiriquí Province.

Municipalities are divided further into districts, from each of which a representative is elected to the Municipal Council. Should a town have fewer than five districts, five council members are chosen in at-large elections. These districts, in turn, have their own form of local government, headed by a corregidor, and including a junta communal made up of the corregidor, the district's representative to the Municipal Council, and five other residents "selected in the form determined by law."

The major concern of municipal and district officials is the collection and expenditure of local revenues. These local politicians have some control over public works, business licenses, and other forms of local regulations and improvements, but many functions that fall within the jurisdiction of local governments in other nations, such as educational, judicial, and police administration, are left exclusively to the jurisdiction of the central government. Local administrations do contribute to the cost of schools, but the amount of their contribution is determined at the national level, based on their population and their state of economic and social development.

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