A new Constitution for Panama? The absence of a constituent actor
The proposed consultation (through referendum) on the possible establishment of a constituent assembly in Panama responds to consensus in public opinion about the need for constitutional change. Nevertheless, it may have come too little too late. While some candidates for the May 2019 presidential elections have indicated support for a constituent assembly, the absence of a strong and organized constituency for constitutional change, coupled with elite interest in maintaining the status quo over the Panama Canal and the political process, undermine chances for comprehensive reform – writes Dr. Harry Brown Araúz.
In January 2019, the government of Panamá tabled a bill before the National Assembly to include a referendum proposal, as part of the May 2019 general elections, on whether constitutional change is needed and if such change should be enacted through a constituent assembly. The proposal is intended to give effect to the campaign promise of President Juan Carlos Varela prior to the 2014 elections but comes a few months before his term is set to end after the May elections.
Panamá transitioned to democracy in 1990, right after the United States of America invaded the country on 20 December 1989. The transition to a new political regime, especially because of the traumatic way it happened, could have provided the moment for a political process leading to a new constitution. It didn’t. Even though there have been, for almost 30 years, calls for a new Magna Carta, the country has maintained the 1972 Constitution that resulted from the authoritarian military regime that was in power between 1968 and 1989. The obvious question is: Why?
The Panamanian democratic transition did not lead to the emergence of new influential actors within the political community.
One of the important actors and beneficiaries of the Panamanian authoritarian military regime was the commercial-financial and transit-oriented elite, which later would lead the protests against the military and is, precisely, the group that holds the hegemony of the democratic regime. The Panamanian democratic transition did not lead to the emergence of new influential actors within the political community, as it was supposed to happen, but instead, paradoxically, the political community shrank. Since there was no new realignment of forces triggered by the entry of new actors in the political scene, there has not been a constituent actor that can drive or force the adoption of fundamentally new rules of the political game, although there have been amendments to the constitution.
After the US invasion, two constitutional modifications were critical to advancing the interests of the commercial-financial and transit-oriented elite: first, the proscription of the army, which ensured a definitive exit of the military from the political community; secondly, the inclusion of a new title dedicated to the Panama Canal which, basically, separated the Canal from the Panamanian public administration. This second reform is highly significant because it institutionally consolidated the independence of the interests of the commercial-financial elite from the interests of the rest of the country and it consolidated the hegemonic transit-oriented social project. After the citizens rejected in 1992 constitutional reforms proposed by the government in a referendum, both reforms were achieved in 1994 through the legislative approval of two congressional majorities in different constitutional periods.
A possible constituent assembly: Too little too late?
The possibility of constitutional change through a ‘Parallel Constituent Assembly’ was introduced through a constitutional act in 2004. A constituent assembly may be established at the decision of the executive branch with the concurrence of an absolute majority in parliament, with a two-third majority in parliament or at the request of 20 per cent of registered voters. The Electoral Tribunal determines the electoral system for the composition of any such assembly. A constitution approved by such an assembly must be submitted to a referendum before coming into effect. A constituent assembly would work parallel to the powers instituted through regular elections. The rules of an eventual new constitution are prospective and would only apply to the next government. In a certain way, the introduction in 2004 of provisions for the possible establishment of a Parallel Constituent Assembly can be interpreted as elite acknowledgement of the problem of the democratic legitimacy of the current constitution, providing an instrument allowing popular participation, but in a controlled manner.
Without specifying other government attempts to reform the constitution – and there has always been interest and timid attempts from the citizenry, organized or otherwise – the most recent episode was inaugurated with the promise made by the current president, Juan Carlos Varela, then candidate, of summoning a Parallel Constituent Assembly at the beginning of his eventual victory in the 2014 elections. Understanding and recognizing the origin of this proposal is important to infer its probabilities of success.
The campaign promise to establish a constituent assembly was reactive and became less urgent with the coming to power of the opposition coalition in the 2014 elections.
The proposal of ‘summoning a Parallel Constituent Assembly by means of a fully democratic process for which preparations will begin on the first year of office and will be summoned within the first two years of government…’, originated from the ‘governability agreements’ signed by the member parties of what was called the Front for the Defense of Democracy, formed as a coalition of the Partido Panameñista, Partido Revolucionario Democratico and the Partido Popular.
The Front for the Defense of Democracy began forging in 2011 in reaction to attempts of the then-president Ricardo Martinelli to modify the constitution. Presumably, Martinelli sought to replace the plurality presidential electoral system with majority runoff to justify breaking the alliance with Partido Panameñista and improving the chances of victory for his party in the 2014 elections. Evidently, the constitutional proposal captured in the political platform of the then-candidate Varela was reactive in origin. It was a piece of defensive discourse against the political management style of Martinelli, seen as antidemocratic by the opposition parties and by a good portion of the population. So, with the ruling Cambio Democrático party electorally defeated in 2014, the reasons for proposing a new constitution practically disappeared.
The result of the referendum would not be binding.
Still, because it was expressed in the electoral political platform, the expectation of fulfillment was installed, and it has followed president Juan Carlos Varela throughout his office. In fact, it has been his biggest broken promise and public opinion has constantly reminded him of it. The knowledge of the lack of fulfillment and the growing sensitivity of public opinion to the need of restructuring the Panamanian constitutional framework evolved into more than one failed, timid and extemporaneous attempt of reopening the constitutional process.
The latest of such attempts was the submission to the National Assembly of a proposal to call a citizen consult by means of an additional ballot in the general elections of 5 May 2019. In that additional ballot, the citizenry would be asked whether they want a new constitution, and whether the change would be enacted through a constituent assembly. The result of such consult would not be binding and compliance with the outcome would fall on the new government, instead of Juan Carlos Varela´s.
The entire prospect for the adoption of a new constitution has been held back by elite interest in maintaining the status quo, including regarding the Panama Canal.
There is no recent data on the opinion of the Panamanian citizenry on the need for a new constitution and, although there seems to be consensus among opinion leaders, there is no such agreement on the content of any new Magna Carta. The fundamental agreement in favor of constitutional change hides divisions and fears among the transit-oriented elite regarding the content of reforms, which has so far blocked reform momentums. While there is talk from some sectors of a constituent reform process as a moment to generate national consensus, it is evident that the economic elites of the country understand the constituent process as a conflictive moment and have avoided it consciously and systematically.
Business unions have reduced the constitutional issue to the reinforcement of the separation and independence of the three branches of the government, with special emphasis on the judicial branch. The method of reform they propose is through legislative approval in two different periods of government, completely ignoring the direct democratic legitimacy deficit of the constitution. Among others, their biggest worry is that, in a constitutional reform process, their prized constitutional title for the Panama Canal could be modified or eliminated. Analytically reducing the situation, one could say that the entire prospect for the adoption of a new constitution in Panama is being held back by the Canal.
Some parties have already indicated that they will not support the proposal for referendum on the need for constitutional reform.
On the other hand, the political parties, especially the legislative blocks, do not seem to be very interested in the constitutional issue. Some parties have already indicated that they will not support the proposal for referendum on the need for constitutional reform, potentially dooming the reform project in the short term. While there are party members who are sensitive to the apparent popular demand for constitutional change, it can be expected that the interest within the parties in maintaining the clientelist status quo and the electoral rules that institutionalize it would prevail. In that sense, any attempt at constitutional change is a threat to the political class.
In general, Panamanian civil society and the middle-class agree with the business unions on the objectives of an eventual reform reengineering politically and institutionally the Panamanian State. However, there is no such agreement on the method. Some organizations, primarily the ones dominated by business managers and mid-size business owners, prefer changes through the legislature, while professional organizations lean towards the establishment of a Parallel Constituent Assembly.
Popular opinion favoring constitutional reform has made the subject electorally unavoidable.
Indigenous Peoples, popular movements, some radicalized teachers’ unions and the Construction Workers Union prefer an original constituent assembly as the only suitable method to relaunch the Panamanian State. For their part, Indigenous Peoples would promote a redefinition of the terms of ownership of land and, if they had the chance, they would possibly present the need of recognizing the Panamanian State as multicultural.
General elections are planned for May 2019. The proposal for a constituent assembly has come in too close to the elections and is unlikely to be approved. Nevertheless, as noted above, the necessity of constitutional reform is one of the subjects that presidential candidates for the May elections are addressing. The emphasis and conviction with which the candidates address the subject makes clear, at least superficially, the varying levels of commitment that they would have with constitutional reform if they become president. In that sense, one could say that one of the biggest triumphs of popular opinion currents favorable to modifying the constitution or adopting a new one is having managed to make the subject electorally unavoidable. However, the absence of a constituent actor with mobilization power, with an alternative project for the country and capable of forcing entry into the political community through elections or not, makes the most optimistic scenario for constitutional reform that of a few touches that would consolidate for a period the transit-oriented model of the country.
Dr. Harry Brown Araúz is Director of the International Center of Political and Social Studies (CIEPS).