THE POLITICAL AND LEGAL SYSTEM OF PANAMA
1. Organization of the State
The structure of the Panamanian State is established by the 1972 Constitution as amended by the Reform Acts of 1978 and by the Constitutional Act of 1983, which adopts the classic division of powers: executive, legislative, and judicial, “which act in harmonious collaboration among themselves,” in accordance with Article 2 of the Constitution. The legislative branch of government is governed under Title V of the Constitution, which provides that it shall be composed of a Legislative Assembly made up of legislators elected in each electoral circuit in accordance with the provisions of Article 141.
The executive branch is governed under Title VI of the Constitution and is composed of the President and the Ministers of State. (Article 170). The President of the Republic is elected by popular, direct, and majority vote for a period of five years. At the same time a first vice-president and a second vice-president are also elected. The President of the Republic, with the cooperation of the respective minister, has among other powers, the authority to appoint the chiefs and officers of the public forces “in accordance with this Constitution, the law and the Military Register” (Article 179.2).
In addition, the Government shall consist of the Ministers of State, the Council Cabinet (Articles 194-195) chaired by the President and composed of the vise-presidents of the Republic, the Ministers of State; the Directors General of the various autonomous and semi-autonomous agencies, the Commander in Chief of the Public Forces, the Attorney General of the Nation, the Legal Counsel for the Administration, the president of the Legislative Assembly and the presidents of the Provincial Councils.
The Judiciary, which is responsible for the administration of justice, is governed under Chapter 1 Title VII of the Constitution and is composed of the Supreme Court of Justice, the lower courts, and such other courts as the law may establish (Article 199). Chapter 2 under that same Title governs the functions of the Public Ministry, which is exercised by the Attorney General of the Republic and other officers of the Public Ministry (Article 216).
Title XII of the Constitution is devoted to national defense and public security, areas that were later regulated by Law N° 20 of 1983, which combined all agencies charged with maintaining domestic order and preserving national defense and thus formed the Panamanian Defense Forces. Article 305 of the Constitution establishes:
The National Defense and Public Security correspond to a profession institution denominated the and Public Security correspond to a professional institution denominated the National Guard, which is subordinate to the Executive Branch and whose conduct shall be subject to the National Constitution and the Law. The National Guard shall at no time participate in partisan politics except as exercising the right to vote.
2. The human rights guaranteed in the Constitution of Panama
Fundamental human rights are recognized by the Constitution under Title III, “Individual and Social Rights and Duties," and under Title IV, “Political Rights.” Chapter 1 of Title II, for its part, spells out the “Fundamental Guarantees.” The State undertakes to protect the lives, honor and property of its nationals and of any aliens who are under its jurisdiction (Article 17). Article 30 provides that there is no death penalty, while Articles 21 and 23 (Habeas Corpus) protect the individual from arbitrary arrest and deprivation of freedom. Article 28 prohibits the use of measures injurious to the physical, mental or moral integrity of prisoners, while Article 20 establishes that everyone is equal in the eyes of the law, though certain distinctions are made between Panamanians and aliens.
The right to freedom of religion and worship may be exercised “without any limitation other than respect for Christian morality and public order” under Article 35, which recognizes “that the Catholic religion is that of the majority of Panamanians.”
Articles 37 through 41 establish the rights to freedom of expression, freedom of assembly and freedom of association. The right to private property is recognized (Articles 30, 44-49), as is the right to present petitions (Articles 41 and 50), the right to due process (Articles 21, 22, 25. and 31-33), the inviolability of domicile and residence (Article 25) and of private correspondence (Article 29) and the right of residence and travel (Articles 26 and 27).
The remaining chapters of Title III deal with social rights; thus, chapters II and III spell out the relationship between the family and the State and between workers and the State. Chapters IV to VII establish the State's obligations vis-à-vis protection and promotion of national culture, education, health, social security and social assistance.
Title IV concerns political rights. All Panamanians over the age of 18 are considered citizens (Article 125), but exercise of the rights of citizenship is, suspended when an individual either expressly or tacitly renounces his nationality (Articles 127 and 13), or by penalty accordance with law. Under Article 129 of the Constitution, suffrage is “a duty and a right of all citizens,” which right the law shall regulate the premise “that it is free and universal, direct or indirect and that voting is equal and secret.” Article 130 specifically provides that “The authorities are obliged to guarantee the freedom and honesty of the vote.”
The Constitution establishes certain guidelines with respect to parties and the organization of the electoral process. Article 133 prohibits “the formation of any party having as its basis sex, race or religion, or which attempts to impair the national sovereignty or destroy the democratic structures of government …” The State is authorized to “supervise and contribute to the expenses incurred by natural persons and political parties in the electoral process” (Article 135) and the Electoral Tribunal is to interpret and apply the Electoral Law (Articles 126-128).
3. Legal Restrictions on the Exercise of Human Rights in Panama
Article 51 of the Constitution states the following:
In the event of foreign war or domestic disturbance threatening the peace and public order, all or part of the Republic may be declared to be in state of siege--, and the effects of Articles 21 (personal liberty), 22 (judicial guarantees), 23 (writ of Habeas Corpus), 26 (inviolability of domicile), 27 (freedom of residence and movement), 29 (inviolability of correspondence), 37 (freedom of expression), 38 (right of assembly), and 44 (private property) of this Constitution may be temporarily suspended, wholly or in part.
The Inter-American Commission on Human Rights has considered that the suspension of the exercise of certain rights, in the context of the provisions of Article 27 of the American Convention on Human Rights, cannot extend to the remedy of Habeas Corpus since, in its view, that is one of the remedies instituted to protect rights that cannot be suspended, such as the right to humane treatment. The Inter-American Court of Human Rights in its Advisory Opinion OC-8/87 stated that the “procedures known as habeas corpus and amparo are those indispensable judicial guarantees for the protection of various rights whose suspension is limited by Article 27.2. In addition they serve to preserve legality in a democratic society.” The measures adopted by the Government are therefore at variance with the American Convention on Human Rights to the extent that they suspend the exercise of a writ as important as that of Habeas Corpus, since Panama's laws must conform to the international commitments it undertakes.
It should be pointed out that recently, to control opposition protests, the Government resorted to declaring a state of urgency and to adopting special State security measures. Thus, on June 10, 1987, by Decree N° 56, the President of the Republic declared a state of urgency throughout the national territory and ordered total suspension of the rights in Articles, 21, 22, 23, 26, 27, 29, 37, 38, and 43 of the Constitution of Panama.
The state of constitutional exception was lifted on June 29, 1987, though on July 7, 1987, Decree N° 59 prohibited the holding of two public demonstrations. The ban was suspended on August 14, 1987, by Decree N° 63, which replaced it with restrictions on the right of assembly.
Later, on October 19, 1987, the Cabinet approved Decree N° 70, prohibiting public demonstrations for an indefinite period of time. Objections were raised questioning the constitutionality of that measure, on the grounds that the state of urgency was not in effect at that time.
On March 18, 1988, through Cabinet Decree N° 11, the Government again declared a state of urgency throughout the territory of the Republic, in the wake of an attempted coup on the part of a group of officers of the Panamanian Defense Forces. On this occasion, none of the fundamental rights set forth in Article 51 of the Constitution was suspended. However, various decrees were issued for the purpose of curtailing the right of assembly (Executive Decree N° 26, dated March 28, 1988); limiting the activities of private business (Executive Decree N° 16, March 25, 1988); and so on. On April 20, 1988, the Legislative Assembly ordered the lifting of the state of urgency.
4. Panama’s international obligations in the area of human rights
The Republic of Panama has undertaken international obligations in the area of human rights through its ratification of or accession to a number of international instruments on the subject.
Under the United Nations system, Panama is party to the 1966 International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social, and Cultural Rights, as well as the Optional Protocol to the International Covenant on Civil and Political Rights.
In addition to those general instruments, Panama has also become a party to other specific treaties for the protection of human rights, as in the case of the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the prevention and punishment of Crime of Genocide and the International Convention on the Suppression and Punishment of the Crime of Apartheid.
Under the inter-American system, since June 22, 1978, Panama is a party of the American Convention on Human Rights, which it ratified without reservations.
In addition to other Inter-American conventions on protection of human rights, Panama has signed, though not yet ratified, the Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights.