Caribbean & Central America - February 2012 (ISSN 1741-4458)

The “committee of notables” appointed by President Ricardo Martinelli last year to suggest changes to the 1972 constitution has finally ended nine months of speculation. Contrary to widespread expectations, the new proposal, which comprises 590 articles, up from the 328 of the current constitution, does not include a provision on consecutive presidential re-election. This was widely considered a key motive in Martinelli’s initial push for constitutional reform. However, current efforts by the President to change the judiciary are fuelling speculation that he could well be seeking to achieve the same objective through alternative means.

The main changes introduced by the draft document, which was submitted to the President on 30 January, include: creating a constitutional court, apart from the supreme court (CSJ), to rule on constitutional questions; enlarging the nine-member CSJ to 12 magistrates; banning immediate re-election for deputies; and reducing some of the executive’s powers, such as the ability to call special legislative sessions. The draft bill, which must be approved in one of three different ways (see sidebar), does not, however, introduce the possibility of consecutive presidential re-election, leaving the amount of time a president has to wait before standing again as two consecutive periods (a total of ten years). It also does not introduce a second round in the presidential contest – the issue proved the final nail in the coffin for the ruling alliance between Martinelli’s Cambio Democrático (CD) and the opposition Partido Panameñista (PP) of Vice-President Juan Carlos Varela [RC-11-10]. The proposed changes also introduce a new prohibition – outlawing the possibility of a president being succeeded by his/her spouse, an issue recently in the regional limelight amid the failed attempts of Guatemala’s former First Lady, Sandra Torres, to sidestep a similar constitutional ban and succeed her then husband, Alvaro Colom.

Yet, with a recent survey by Unimer, published in the leading opposition daily La Prensa, revealing that more than half (50.5%) of respondents believe that Martinelli will not leave power in 2014, when his term ends, the President’s recent efforts to reform the judiciary are fuelling speculation that he is manoeuvring to change the constitution via other channels. Last month, a member of his CD (which has 36 seats in the 71-member unicameral legislature) proposed a bill reviving a three-member fifth chamber in the current CSJ, which would handle all issues relating to constitutional rights. The move was slammed by the opposition as an attempt by the president to strengthen his grip over the court (in which he has so far made four appointments [RC-12-01]). Specifically, the bill (No. 402) aimed to repeal a law (49) passed in 1999 under the PP government of Mireya Moscoso (1999-2004). Law 49 had revoked another law (32) passed the same year under the previous Partido Revolucionario Democratico (PRD) administration of Ernesto Pérez Balladares (1994-1999), which first established the fifth chamber.

Following overheated congressional sessions and outrage on the part of opposition deputies, the CD retracted the bill. However, the legal wrangling is set to ensue as Martinelli is threatening to appoint the three additional judges regardless, invoking a January 2011 CSJ ruling which found law 49 unconstitutional and called on the president to make the appointments. The legal merit of the CSJ ruling is subject to doubt given that, according to the country’s Civil Code (Art. 37), repealing a law does not implicitly revive the legislation it abolished. The controversy has also triggered a spat between the legislature and judiciary; the CSJ’s new president, Alejandro Moncada, a Martinelli appointee, issued a statement in which he declared bill 402 unnecessary, accused the legislature of interfering in the court’s prerogatives, and “exceeding its limits”, thereby jeopardising the independence of powers. In response to Moncada’s statement, which also argued that the bill should have been proposed by the judiciary, some PP deputies threatened to file formal complaints against the CSJ president for abuse of authority by seeking to interfere in legislative matters.

• Signs of independence?

Despite renewed concerns regarding the independence of the judiciary, the top court has recently handed down some verdicts which point to continued distance from the executive. One example was a 24 January ruling, which found that Panama’s exit from the Central American Parliament (Parlacen) was unconstitutional. The decision ends a saga dating back to August 2009 when Martinelli first submitted a formal request to leave the regional forum and is a blow for the President, for whom leaving the Parlacen was a campaign pledge. Martinelli had dressed up his proposal as part of a declared anti-corruption offensive (Parlacen has long been criticised for serving as a haven for corrupt politicians given the immunity conferred on its deputies). However, the future prospect of being able to prosecute PRD members was also no doubt a motive.

 Another ruling, which raised some eyebrows, was the 6 January decision to dismiss the case against Balladares and 14 others, accused of money laundering under his PRD government. The charges against the former president – one of a handful of PRD figures targeted in Martinelli’s anti-corruption drive - specifically involved allegations of  laundering money from kickbacks arising from a 1997 no-bid gambling concession Balladares awarded to Lucky Games SA. According to the allegations, part of that business had gone to a company he controlled, Shelf Holdings SA, for which he had received payment from Lucky Games. A separate case against Balladares in relation to the kick-back allegations had already been dropped in September 2010.

• Changing the constitution

Under current law, there are three different ways that the constitution can be amended: two successive legislatures may ratify the same specific reforms; the legislature and president may submit one or more specific amendments to the electorate in a referendum; or a constituent assembly may be convened to draft a new constitution, which is then submitted to the electorate.

• Vallarino goes

Bosco Vallarino, Panama City’s controversial mayor, resigned last month citing health reasons. His exit has, however, been on the cards since the unravelling of the alliance between President Ricardo Martinelli’s Cambio Democrático (CD) and the opposition Partido Panameñista (PP) - of which Vallarino is a member - last August. A poll by Dichter & Neira showed that 70.3% of the 1,200 respondents attributed the decision directly to pressure from the President while opposition politicians suggested that Martinelli threatened and possibly even blackmailed Vallarino into stepping down. The replacement of Vallarino with Deputy Mayor Roxana Méndez, a close ally of Martinelli and prominent member of his CD, now gives Martinelli control of the second most important political position in the country.