PANAMA: CONSTITUTIONAL REFORM IS NOW A FACT

UNCLAS SECTION 01 OF 03 PANAMA 000144

SIPDIS

SENSITIVE

DEPARTMENT FOR WHA/CEN
SOUTHCOM ALSO FOR POLAD
VANCOUVER FOR CG ARREAGA

E.O. 12958: N/A
TAGS: PGOV PREL PM POLITICS FOREIGN POLICY
SUBJECT: PANAMA: CONSTITUTIONAL REFORM IS NOW A FACT

REF: PANAMA 01963

SUMMARY/COMMENT
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1. (SBU) Panama's revised constitution, now in effect for one
month, fulfills a key goal of President Torrijos's domestic
political agenda. 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. Without disputing that
directly, Torrijos, whose Democratic Revolutionary Party's
(PRD) legislative majority assured easy passage in the
Assembly, told El Panama America, "I'm convinced that we've
made a giant step in the modernization of the State."


2. (SBU) Discussion, approval, and implementation of the
reform package entailed a convoluted procedure. President
Torrijos remitted the reforms approved by the outgoing,
Arnulfista-dominated legislature in July to incoming
legislators during the first week of September, who approved
the package on October 26. After President Torrijos signed
the package, it entered into effect on November 15. Most of
the approved reforms have immediate effect. Others only take
effect after the 2009 national election, such as capping the
size of the Legislative Assembly at 71 and eliminating double
redundancy for vice presidential, legislative, and mayoral
alternates. Overall, the reforms offer a quick-fix to some
of Panama's most egregious political practices. End Summary.

Overview of the Changes
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3. (SBU) 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)


4. (SBU) The constitutional reforms aim to reduce 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 will take effect after the 2009 election.


5. (U) The revised constitution cuts 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.
(COMMENT: 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. END COMMENT.)

Legislative immunity reduced
--------------

6. (SBU) 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. (Note: 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. End note.)
Changes to the Judicial Branch
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7. (SBU) The revised constitution forbids legislators or
Cabinet members from serving on the Supreme Court until they
have been out of office for five years and requires that
judicial alternates ("suplentes") be appointed from within
the judicial branch. (COMMENT: The President can no longer
appoint lawyers, whose firms may have cases before the Court,
as alternates. This move addresses widespread public
complaints regarding conflict of interest between prominent
law firms and the high court. More importantly, this change
is a direct response to President Moscoso's appointment of
two members of her cabinet to the Supreme Court. On the
other hand, the new language would conceivably permit
President Torrijos to appoint longtime PRD partisans to
Panama's highest court, thereby counteracting the purported
intent of de-politicizing the Court. END COMMENT.)


8. (SBU) Article 221 permits the Attorney General (AG) and
the Solicitor General (SG) to appoint their own alternates
from within the Public Ministry to represent them during
absences, eliminating the president's former power to make
10-year appointments to such posts.

Electoral Tribunal Independence
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9. (SBU) The revisions increase the independence of the
Electoral Tribunal (TE) by giving it more budgetary control
and by explicitly prohibiting Supreme Court oversight of
electoral matters in most cases. This reform also codifies
procedures to appoint the three electoral magistrates for
staggered 10-year terms.

Comptroller General
--------------

10. (SBU) The revised Article 281 establishes a "Tribunal de
Cuentas" to investigate, prosecute and rule on malfeasance of
government accounts, pending legislative action. Previously,
the Comptroller General (CG) held those powers.

Contempt Out, Wiretaps In
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11. (SBU) Under the constitutional revision, Supreme Court
justices lose their former power to jail or fine people for
contempt without trial, which had been applied capriciously
and to partisan political ends.


12. (SBU) The revised Article 29 permits wiretapping with
prior authorization, which the constitution previously
forbade. Evidence obtained from unauthorized wiretaps is not
admissible in court.

Political parties "democratized"
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14. (SBU) The revised constitution requires political
parties to democratize their internal structures and
operations. But the Assembly decided not to change a
provision that allows political parties to unseat their
members from the legislature, an effective tool to enforce
party discipline, regardless of constituent sentiment.
(COMMENT: The PRD was the only party that held primaries
before the May 2004 election. Other parties, particularly,
Mireya Moscoso's Arnulfista Party, have suffered heavy
criticism for failing to practice internal democracy. END
COMMENT.)

Reforms With Presidential Fingerprints
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15. (SBU) Two new provisions reflect particular presidential
interests: One eliminates the age requirement for foreign
adopted children of Panamanian nationals who want to become
Panamanian citizens (previously they had to be 18 years old).
That change will permit former President Moscoso's
13-year-old son, adopted in Costa Rica, to be naturalized.
The other prohibits discrimination based on disabilities.
President Torrijos' daughter, Daniela, is a child with
special needs.

Indigenous Over-representation?
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16. (SBU) A new constitutional provision assigning two
legislative seats to the Kuna and three to the Ngobe-Bugle
indigenous groups may be challenged before the Supreme Court.
Critics claim that new provision disproportionately favors
the two groups (since under this provision 4% of the
population would have 7% of the legislators). Critics also
allege that it is racially discriminatory.

Procedure for Constitutional Convention
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17. (SBU) The revised constitution spells out how a
constitutional convention (Constituyente) may be convoked --
i.e., by a presidential decision, with legislative approval;
by a 2/3 Legislative Assembly vote; or by petition of 20% of
citizens over age 18 (about 380,000 people). The new text
must then be submitted to a national referendum. The
Constituyente may not introduce retroactive changes or alter
the terms of sitting elected officials.

WATT