1. The right to participate in government and electoral process
On numerous occasions, the Inter-American Commission on Human Rights has referred to the importance of the exercise of the right to participate in government in a system of representative democracy. The General Assembly of the Organization of American States has also adopted a number of resolutions where the system of representative democracy is considered the one that best guarantees the observance of human rights. Such a system is, moreover, expressly adopted by the member states as stipulated in Article 3.d of the Charter of the Organization, according to which:
The solidarity of the American states and the high aims which are sought through it require the political organization of those states on the basis of the effective exercise of representative democracy.
One of the key elements of the system of representative democracy is the exercise of the political rights recognized in Article 23 of the American Convention on Human Rights, which are among the rights that, under Article 27 of this Convention, cannot be suspended.
In Article 23 of the American Convention, the reference to “genuine” elections implies the existence of a legal and institutional structure conducive to election results that reflect the will of the voters. Election laws and institutions must therefore serve to guarantee that the will of the citizenry will be respected. Still more important is that the fundamental currents of political thought in the country be reflected fully in the drafting of those laws. Given the importance of electoral legislation, it is essential that it be the product of a census rather than the outcome of an imposition by parliamentary majorities.
The highest-ranking electoral body is the Electoral Tribunal whose membership and functions are spelled out in Articles 126 and 127 of the Constitution. The Tribunal is composed of three magistrates appointed for seven years; on is selected by the Supreme Court of Justice, another by the National Assembly of Representatives, and the third by the Executive Branch.
The functions of the Electoral Tribunal are very important since it is responsible for appointing the members of electoral institutions: the National Teller Board, the Circuit Teller Boards, the District Teller Boards, the Community Teller Boards, and the polling stations. It must also hand down its opinion on the legalization of political parties, voter registration, and the issuance of voter registration cards. The Teller Boards are responsible for counting the votes and forwarding the results to the Electoral Tribunal, which rules only on complaints presented to it.
Within the structure of the Panamanian electoral system the electoral comptroller is the officer in charge of monitoring the conduct of those connected with election-related business and investigating complaints. The comptroller’s functions follow from the provisions of Article 128 of the Constitution.
For the purposes of the narrative contained in the Chapter, it is relevant to point out that the system introduced by the Electoral Code establishes that the first count will be made at the corresponding polling station and the results will be entered in as many records as there are categories of authorities up for election. Members of the polling stations may also receive copies of those records authenticated by the secretary of the polling station. According to Article 266 of the Electoral Code “copies shall be as valid as the originals forwarded to electoral boards for official tabulation.”
In the case of elections for president, vice presidents and legislators, the original record will be sent to the National Teller Board, to the Electoral Circuit Teller Board and to the Electoral Tribunal. The Teller Boards will recount the votes and enter the results in their own records. The overall tabulation of votes in elections for president and vice presidents shall be done by the National Teller Board.
During the visit the Inter-American Commission made to Panama from February 27 to March 3, 1989, various sectors expressed reservations about the membership of the Electoral Tribunal as well as certain irregularities they perceived in the way it operated. They also expressed their reservations on the election laws.
They noted that the amendments to the election laws approved through Law Nº 9, of September 21, 1988, were introduced by the ruling majority in the House because the opposition parties (Molirena and Democracia Cristiana) were not allowed to state their position. When a reading of minority opinion was barred in the committee that had prepared the amendments, the minority walked out. The election legislation was not, therefore, the product of a democratic process of debate and formulation; instead, it was skewed by the exclusion of the viewpoints of, major opposition sectors.
As for the membership of the Electoral Tribunal, a number of persons told the Inter-American Commission that the Chairwoman, Yolanda Pulice de Rodríguez, had been appointed to membership of the Tribunal by the Supreme Court of Justice in 1979; she had been one of the members of the Tribunal in 1984 elections. The Vice Chairman, Lic. Luis Carlos Chen, was appointed in 1985 by then President Del Valle, while the other Magistrate, Lic. Aurelio Correa, had been designated by the National Assembly in October, 1988, after having served for 10 years as Comptroller of the Electoral Tribunal. They also pointed out that at present the Comptroller is Lic. Raúl López, who for 17 years has served as legal counsel for the Defense Forces. Given this composition, they considered that the election authorities were no guarantee of impartiality nor did they allow for opposition participation in decisions that might affect it.
The Inter-American Commission was also informed of several decisions of the Electoral Tribunal that dovetailed with tactics attributed to the government, calculated to divide the opposition parties. An episode in 1984 was cited in this connection: a faction of the Panameñista Party broke away and was ultimately recognized by the Electoral Tribunal; as a result, Arnulfo Arias had to form the Panameñista Auténtico Party to surmount the obstacles created when the minority faction that had opposed him was recognized. In December 1988 there was again division in the ranks of the Panameñista Auténtico Party and the Electoral Tribunal again recognized the group most closely aligned with the government’s positions, though most of the party leadership had supported its Secretary General, Guillermo Endara. Endara would go on to become the presidential candidate of the Alianza Democrática de Oposición Civilista in the elections held on May 7, 1989. The Commission also heard that something similar had happened in the case of the Republican Party whose leadership supported ADOC in the elections.
Regarding the election laws, the Inter-American Commission heard frequent references to the changes that should be made to the rules on voting by members of the Defense Forces; the view was that the legal provisions adopted permitted them to vote at several polling stations, though no provision is made for the use of indelible ink to identify those who have already voted. It was also mentioned that voting lists were frequently altered.
It was also stated that the membership of polling stations worked to the advantage of the party in power, since the chairman is appointed by the Electoral Tribunal and the parties forming the Coalición para la Liberación Nacional (COLINA)--an official line party--constitute the majority that would have to rule on complaints.
These charges increased during the period immediately before the May 7 elections. The opposition candidates brought a formal complaint concerning what they considered to be irregularities in the Register of Voters, citing specifically “he unaccountable increase in the voting population, which was almost twice the increase in the voting age population during the same period.” They also denounced “the creation of false voters” which caused “the duplication of over 100,000 voter names; supplying “government supporters with a number of personal identification cards”; “the unlawful practice of transporting thousands of voters to circuits where the opposition was especially strong”; “registering voters in voting districts far from their place of domicile” while a significant number of deceased voters were kept on the Register of Voters.
The Inter-American Commission also heard numerous references to the general conditions amid which the electoral process was unfolding, which adversely affected the authenticity of the scheduled elections. There were repeated references to the closing of newspapers, television and radio stations, such as La Prensa, El Siglo, Extra, the weekly Quiubo, Channel 5 and Radio Mundial and Radio KW Continents. According to reports received by the Commission, authorization to publish the new daily Hoy had not been granted either.
From what the Inter-American Commission was able to determine, the severe restrictions that opposition sectors encountered in exercising their right to freedom of expression stood in sharp contrast to the way in which government-aligned groups were able to saturate voters with messages in support of their positions. The right to freedom of expression is discussed in another chapter of this Report. Suffice it to say here that the kinds of restrictions placed on the exercise of this right during the electoral process put opposition sectors at a clear disadvantage vis-à-vis the coalition supporting the government. The Episcopal Conference of Panama and the various international observers and human rights agencies all emphasized this point, which weakened one of the conditions vital to he kind of genuine elections called for in Article 23 of the American Convention on Human Rights.
Another factor that adversely affected the electoral process, as reported to the Inter-American Commission on Human Rights, was the predicament of various political leaders who had been forced to leave the country. As indicated in the chapter on freedom of movement and residence, the Government of Panama adopted a practice of detaining and harassing the political opposition, seizing their property and forcing them to leave the country. This reprehensible government conduct has prevented a major group from participating in election activities and thus has given the government coalition an advantage.
Many journalists and members of the opposition have been detained for long periods without being charged. During those periods they were held incommunicado and were mistreated and tortured, then released and expelled from the country. Violations of the right to personal liberty caused by this conduct on the part of the Government of Panama have been fostered by the attitude taken by the Judiciary, which has not enforced the rights of persons so affected and has become another vehicle for such abuses.
During its visit in February, the Inter-American Commission was also informed that serious violations of the right of assembly were occurring. According to reports, a number of legal restrictions were imposed on the exercise of the right of assembly, as a result of which peaceful opposition demonstrations were confronted with various obstacles that had to be surmounted in order to take place. In addition to legal restrictions, there were other restrictions imposed by the government such as threats to the owners of transportation companies that their licenses would be revoked if they allowed their vehicles to be used to drive participants to demonstrations.
Such de facto restrictions contrast with the measures taken to enable people to attend COLINA meetings, where public transportation was used and public employees were forced to attend lest they be fired. International observers found that state resources were drawn upon heavily during the ruling party’s campaign and the Catholic Church, through the Episcopal Conference, denounced the use of “civil servants, public funds and government facilities to support certain party segments.”
The acts that most seriously impaired the exercise of the right of assembly, however, have been this disproportionate and unnecessary violence used by law enforcement forces against opposition demonstrators who were peacefully and legitimately exercising their rights. As stated in the chapter on the right to humane treatment, the Commission has an abundance of documentary evidence testifying to the disproportionate and excessive violence used by the Defense Forces to put down demonstrations.
The Commission also has abundant evidence of the use of birdshot against peaceful demonstrators, which hit mere bystanders or people who happened to be present at the time. The loss of eyes and other wounds caused by birdshot are the very serious consequences of this reprehensible government practice.
Paramilitary groups are another tool organized and used by the Government against opposition demonstrations. Such groups, whose ties to the Defense Forces are public knowledge, were initially formed for the alleged purpose of confronting a possible invasion by the United States. In practice, their tactics have been intimidation and gross mistreatment--even death in the case of Endara's bodyguard--of the opposition under the passive stares of the Defense Forces, which did nothing to curb the paramilitary’s excesses. Documentary evidence provided to the Inter-American Commission shows how members of the Traffic Department of the Defense Forces were transformed into a paramilitary group in order to attack an opposition demonstration.
Paralleling these grave, arbitrary measures against those who oppose the coalition supporting the government was an effort to use the press and speeches by government officials, to create an atmosphere of tremendous hostility toward opposition candidates. By contrast, high ranking officers in Defense Forces publicly supported COLINA candidates, openly defying Law Nº 20 which regulates the functions of the Defense Forces and requires that they be strictly neutral in political matters.
As can be inferred from the facts set forth thus far, the atmosphere in Panama for the exercise of political rights as defined in Article 23 of the American Convention was highly objectionable. Indeed, the legal and institutional system for the organization of elections offered no guarantees of impartial conduct on the part of the organs responsible for implementing the actions related to it. The general conditions in which the process was taking place, rather, were slanted in favor of the ruling party coalition and against the opposition because of the lack of freedom of expression, the serious restrictions on the opposition's right to personal liberty, the grave violations of the right of assembly and the intimidation of members of the opposition and pressures exerted against voters to support the ruling party candidates, both by high-ranking government officials and by officers of the Defense Forces.
These were circumstances leading up to the elections of May 7, 1989, which are analyzed in the following section.
2. The May 7, 1989 elections and its aftermath
The May 7, 1989, elections were conducted in an atmosphere of great social tension. The elections had been called to elect a President, Vice Presidents and legislators. According to the Constitution, those elected were to take office on September 1st.
The opposition’s experience in the 1984 elections, coupled with the tensions on the day prior to the election, made designation of political party representatives at the 4,255 polling stations located in 1,944 voting locations throughout the country, a particularly key issue. Various international observers were present but ultimately they encountered a series of problems that made it difficult for them to perform their task.
Concerning the voting itself, the opposition complained of various minor irregularities such as the lack of sufficient ballots for their candidates, delays in getting the balloting under way in some rural areas, multiple voting by soldiers of the Defense Forces and alleged buying of votes. They acknowledged, however, that the voter turn-out was very high; impartial observers acknowledged that the alleged irregularities had not been sufficient to alter the outcome. These observers pointed out that, in general, relations existed between ADOC and COLINA representatives and the officials appointed by the Electoral Tribunal to solve any problem that might arise were good.
As a result, the opposition considered that the first tabulation made at the polls was correct. Representatives of the opposition obtained the corresponding records certified by the secretary of the polling station, as stipulated in Article 266 of the above-mentioned Electoral Code.
The Inter-American Commission was informed, however, that acts of intimidation and violence occurred in certain places and had been followed by the theft of records by members of the Defense Forces or paramilitary groups. This complaint was filed, for example, by the Penonomé Parish priest and Cocl6 Episcopal Vicar; there were complaints of other acts of violence at the Venezuela School in Panama City, where the apparent intent was to remove the records, tamper with them and return them to the District Courts.
The most serious irregularities apparently were committed in voting tabulations at the level of District Teller Boards, where voting records received from polling stations had been sent for a recount that, once completed, was to be reported to the National Teller Board. As widely charged, some places where these District Boards were to function were the target of attacks by paramilitary gangs, while elsewhere such boards were unable to function since, given the total lack of guarantees, their members refused to meet.
Voting records for the 40 District Boards were to be sent to the National Board to be re-tabulated and for the winners to be announced.
National Board officials are also designated by the Electoral Tribunal. Representatives of the opposition parties described the irregularities observed as follows:
In this body (the National Board) “representatives of the three opposition parties encountered an unsurmountable barrier that prevented them from doing their job, i.e., tallying votes. Representatives of the government parties as well as the Panameñista Auténtico Party (PPA) invariably voted against any attempt to examine district voting records with respect to the polling station records. One has to remember that the National Teller Board had at hand copies of the polling station records, whose totals had to appear in the district records. However, checking polling station records against the district records that had been tampered with was not allowed. Opposition representatives were not permitted to show as evidence of fraud the authenticated district records in their possession, even though district records presented at the National Board were not signed by opposition party representatives and had obviously been altered. During the so-called deliberations of the National Board, neither points of order nor explanations of vote were allowed. No discussion of documents other than those provided by the Electoral Tribunal officials was permitted, even if they showed evidence of tampering. Finally, the Chairman of the Board… said that the responsibility of the highest-ranking body of the country was simply “to read and add up” the records of the district boards, regardless of their condition upon arrival, notwithstanding whether they had been shamelessly tampered with or crudely marked up with falsified signatures or simply without the signatures of opposition representatives.
Distinguished international observers such as former U.S. President Carter concurred in the complaint of grave irregularities at the National Teller Board. The Catholic Church and 279 international observers from 20 countries also corroborated these complaints.
It must be pointed out that opposition and the Archdiocesan Lay Coordination Commission of the Panamanian Episcopal Conference organized two systems for retallying votes. The Church organized a sample count based on statistical techniques successfully used in other elections held under exceptional conditions such as in the Philippines and Chile. The system allowed the Panamanian Episcopal Conference to issue a communiqué on Monday, May 8, declaring the victory of the Alianza Democrática de Oposición Civilista by “a substantial majority” (74.2 percent) over COLINA (24.9 percent). It must be borne in mind that the sample technique had a margin of error of +/- 9 percent.
On May 10, 1989, the Electoral Tribunal issued Decree Nº 58 declaring the nullification of the elections held on May 7, at all levels of elective office.” The Electoral Tribunal based its decision on the following:
That, once the voting was over at 5 p.m., matters transpired–and still persist–that have significantly altered the final outcome of the elections nationwide.
That the normal course of elections was disrupted by the obstructionist acts of many foreigners summoned by national or foreign political forces without benefit of invitation by the Electoral Tribunal; their obvious purpose was to reinforce the theory of election fraud publicized worldwide by United States authorities long before the elections.
That the brief summation of these facts, taken from the reports received by the Electoral Tribunal…, shows that ballots were constantly being removed at polling stations, that votes were being bought by political parties and, in particular, that voting records and other documents were missing thereby making it utterly impossible to declare any candidate a winner.
Nonetheless, on the basis of records obtained at the polling stations the opposition tabulated its results even though some records could not be obtained because they had either been stolen or destroyed before the end of the tally at the corresponding station. The following June 4, based on records from 80.9 percent of the polling stations, the opposition concluded that it had won with 65% of the votes, whereas COLINA had received 26% of the votes. The corresponding records were delivered to the Panamanian Episcopal Conference for custody.
Given the irregular situation, the Alianza Democrática de Oposición Civilista called on its followers to hold peaceful demonstrations to demand, first of all, that the results be turned in, and second, that its victory be recognized. Such peaceful demonstrations were repressed by the Defense Forces with unheard-of violence, allowing and encouraging the action of paramilitary groups that, during the demonstration on May 10, physically attacked the opposition candidates, killing Manuel Alexis Guerra, the bodyguard of candidate Guillermo Endara, and wounding another in the middle of the street, with the Defense Forces standing by impassively. World television then recorded how a member of the paramilitary viciously beat up a bloody Ford, while the men in uniforms standing by did nothing to prevent it. Presidential candidate Guillermo Andara was also beaten over the head; his injuries were so serious that he had to be hospitalized.
As said in the first part of this report, events in Panama led to convocation of the Twenty-first Meeting of Consultation of Ministers of Foreign Affairs of the Organization of American States. On August 24, 1989, the President of the Meeting issued a declaration that in paragraph 4 request the Inter-American Commission on Human Rights to conduct another visit to Panama for the purpose of updating the information on the situation of human rights in that country.
On September 1, Eng. Francisco Rodríguez took office as President of Panama. His appointment by the General Council of State has no basis in the Panamanian Constitution, as the Panamanian Episcopal Conference pointed out in its September 14, 1989, communiqué. The new President, for his part, said that his government “will call elections and hand over the reins of power as soon as conditions allow;” he then said that the United States must halt its aggression and return to the National Treasury those funds it had arbitrarily retained. He also mentioned that the next elections should be held “without foreign interference or manipulation.”
In light of the information available to the Inter-American Commission, as set forth above, the electoral process in which the right to participate in government was exercised in Panama involved legal and institutional factors that furthered conditions that would deprive the election held on May 7, 1989, of any authenticity. Both the legal instruments upon which the process was based as well as the membership of election agencies responsible for the election, were so seriously flawed as to deprive their decisions of any legitimacy.
These problems were compounded by the creation of conditions inimical to the opposition factions' free exercise of the rights to freedom of expression and of assembly. The harassment targeted at them included the unlawful deprivation of the freedom of several distinguished members of the opposition who were then either expelled from the country or coerced into exile. The violence unleashed against the opposition included the use of disproportionate and indiscriminate resources, including paramilitary groups, guilty of extremely serious violations of the right to life and humane treatment of persons who were peacefully exercising their right to assemble.
This negative situation provoked by the government was in sharp contrast to the assistance provided to the candidates of the ruling party coalition, in whose support both government employees and government resources were used, in violation of the Constitution, and for whom high-ranking officers of the Defense Forces actively campaigned, in direct violation of the law.
In spite of the many restrictions that the government imposed on the opposition, the information provided to the Commission indicates that the results of the elections were in favor of the Alianza Democrática de Oposición Civilista, causing the Electoral Tribunal to nullify the elections. The government, however, has not been able to overcome the prevailing situation and has been forced to, resort to formulas lacking constitutional foundation to continue managing the country.
The resulting lack of legitimacy, coupled with an obvious absence of popular support, make it likely that under the current government, developments in the areas of human rights in general and of the exercise of political rights in particular will be negative. This situation must be corrected within the framework of observance of the American Convention on Human Rights, which is binding on Panama as a State party. This means that the freely expressed will of the people must be fully respected or accords must be worked out with the interested sectors so that the will of the people may be expressed (at the earliest possible date). As the Permanent Committee of the Panamanian Episcopal Conference has stated:
the only justification for a government that calls itself provisional would be to seek directly, immediately and unconditionally, the expression of the will of the people in order to restore constitutional rule as soon as possible, inviting every representative sector of the national population to work to that end. Failure to do so would be tantamount to condemning the Panamanian people to gradual international isolation in hot! the political and the economic fields, with the all too familiar consequences of unemployment, hunger, sickness, poverty, etc.
1. Article 23 of the American Convention on Human Rights says: “Right to participate in government: 1. Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters, and c. to have access under general conditions of equality to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.”