Explaining The Fifth Chamber Controversy in Panama
By DON WINNER for Panama-Guide.com - The news in Panama for the past week or so has been completely dominated over the issue of the new "Fifth Chamber" of the Supreme Court. Yesterday there was a shoving match in the National Assembly between the Deputies from the ruling Cambio Democratico political party and the opposition Panameñista political party. Tempers are more than just flaring - you can see how eyes are turning red and there's froth flying from the corners of people's mouths - it's getting intense. All three branches of power in Panama have gotten involved in the fray. All of the various opposition elements who are not in positions of elected power, the traditional "talking heads" who seek time on the television news broadcasts, have all weighed in. I wanted to take a moment to coolly and rationally examine some of the most fundamental elements of the debate, in order to keep my readers up to date with the truth, facts, and reality on the ground.
We Don't Get A Vote: It's critically important to point out that most of the members of the English speaking community of expatriates who are living or working in the Republic of Panama are not Panamanian citizens, and as such we don't get a vote. It falls to the Panamanian people to make these decisions. They elect their political leaders and then we get to live with the results of those elections, and the decisions made by those elected leaders. Therefore, I personally try to remain as neutral and objective as possible when reporting on their actions and decisions. When I started running this website Mireya Moscoso from the Panameñista party was the president of Panama. She was replaced on 1 September 2004 by Martin Torrijos from the Democratic Revolutionary Party (PRD.) And he was replaced in office on 1 July 2009 by Ricardo Martinelli from the Cambio Democratico political party. So I've seen all three parties in power over the years. It's wise for any foreigner who doesn't have a vote to remain as politically neutral as possible. And what's more my ethics and morals as a journalist dictate that I should remain as neural as possible in my reporting. Of course there are things which tick me off personally, and I highlight those in my "Editor's Comments" so you know it's just me blowing off steam. I tend to not like crooks, murderers, corrupt politicians who steal public funds or abuse their power for their own personal gains. And those who read this website regularly know I don't pull punches when I see something I don't like, but the reader knows full well it's coming from me - my own personal opinion, for what it's worth. Anyway, I felt the need to recycle that declaration of "remaining as neutral as possible" in this article. I'm neither for or against the administration of Ricardo Martinelli, because that's not my job.
Ernesto Perez Balladares Seeking Power Former president Ernesto Perez Balladares was elected in 1994 and he served until 1 September 1999. When he was in office he tried very hard to remain in power, even though he was elected with only 33% of the vote. The remaining 66% was divided between six other candidates (Mireya Moscoso 29%, Ruben Blades 17%, Rubén Dario Carles 16%, Eduardo Vallarino 2%, Samuel Lewis Galindo 1%, José Salvador Muñoz .3%). In 1998 a referendum was held to amend the Constitution to allow the President to be reelected to a second consecutive term (the Panamanian Constitution only allows a former President to seek the office after sitting out two consecutive terms). However, the proposal was defeated by a margin of almost 2 to 1. Then in the general elections held on 2 May 1999 Mireya Moscoso of the Panameñista political party (called "Arnulfistas" at the time) was elected with 44% of the vote, defeating Martin Torrijos from the PRD who received 37%. So after the election was over Ernesto Perez Balladares knew the PRD would be leaving power, and he wanted to try to do something to protect his future. If he couldn't keep the Executive Branch of government, he would try to keep the Judicial Branch. Thus was born the idea of the "Fifth Chamber" of the Supreme Court.
Add Three New Judges: The political system in Panama is set up so that any one sitting president should only be able to appoint four Supreme Court judges during his term in office. There are nine justices on the Supreme Court. The president appoints the new judges, and his appointments are approved and ratified by the National Assembly. The judges sit on the bench for a ten year term. And the selections and appointments are staggered every two years. So therefore it's "normal" for a president who serves a five year term to appoint four judges. But what if you expand the court from nine to twelve, create a "Fifth Chamber", adding three new judges? That's what Ernesto Perez Balladares did, after the May 1999 election. His PRD political party was still in control of the National Assembly, so they passed Law 32 of 23 July 1999 which created the Fifth Chamber. Ernesto Perez Balladares named his judges, and they were ratified by the National Assembly. All of this was "lame duck" action.
Panameñistas Take Over: On 1 September 1999 - just 39 days after the National Assembly passed the "Fifth Chamber" law, Mireya Moscoso and the Panameñistas took control of the government. However in the elections the PRD candidates won 41 seats in the National Assembly, so therefore it was going to be impossible for Moscoso to get anything done. She quickly negotiated what became known as the "Pacta de la Pintada" (The Pintada Agreement) with PRD lawmakers, enough to give her control of the National Assembly. One of the first things she did was to order them to repeal Law 32 of 23 July 1999 which created the Fifth Chamber. And, they did. They passed Law 49 of 24 October 1999 which repealed Law 32, and the Fifth Chamber was effectively dead, for the time being. The judges appointed by Ernesto Perez Balladares warmed their chairs for about two months, then were gone.
A Constitutional Challenge: Shortly thereafter someone filed a constitutional challenge against Law 49 of 24 October 1999, which repealed Law 32. That challenge languished in the Supreme Court until 25 January 2011. That's when the Supreme Court, now dominated by justices appointed by either Ricardo Martinelli or Mireya Moscoso, ruled Law 49 of 24 October 1999 to be unconstitutional. Remember in January 2011 the alliance between the Cambio Democratico and Panameñista political parties was still in full force - they decided to do this together. This decision basically brought the original Law 32 back to life, and the Fifth Chamber once again popped into existence.
Article 37 Of The Civil Code: There is an element in the Civil Code of Panama, specifically Article 37 which states: "Articulo 37. Una Ley derogada no revivirá por solas las referencias que a ella se hagan, ni por haber sido abolida la ley que la derogó. Una disposición derogada sólo recobrará su fuerza en la forma en que aparezca reproducida en una ley nueva, o en el caso de que la ley posterior a la derogatoria establezca de modo expreso que recobra su vigencia. En este último caso será indispensable que se promulgue la ley que recobra su vigencia junto con la que la pone en vigor." (My Translation: A law that has been repealed will not revive just by the references made to it, nor for having been abolished the law that repealed it. A repealed law only regains its strength in that it be seen reproduced in a new law, or in the case that the law after the repeal expressly established that it regains its effect. In the latter case it is essential that the law which recovers its force be published together with that which puts it in force.) This is the element of Panamanian law being used by the opponents of the Fifth Chamber to say "see, Law 32 can't be valid" and they argue that the Supreme Court is ignoring this provision of the law.
It Doesn't Matter: And this is where the rubber meets the road. In reality, these kinds of arguments simply do not matter. Why? Ask yourself, who decides issues of what is correct and constitutional, and what is not. Answer = the Supreme Court of Panama. Constitutional specialists can argue their points of law until they are blue in the face, and they might be right. But in the end it won't matter one hill of beans. The Supreme Court and the judicial system in Panama are highly politicized - always has been, and always will be. Like it or not, fair or not, just or not, it is what it is.
Slick Political Move: Ricardo Martinelli is one slick politician, that's for sure. Look at what he's managed to do. The PRD "built" or "created" the element of the Fifth Chamber, and now he's taken that over as his own. He got the Supreme Court of Panama to rule that Law 49 of 24 October 1999 was unconstitutional, and he did it using a combination of his own judges, and those of the Panameñista party who were part of his alliance at the time. When those judges voted they were sure the Panameñista candidate Vice President Juan Carlos Varela was going to be replacing Ricardo Martinelli in 2014, so why not? Then Ricardo Martinelli waited until after 1 January 2012 when the two remaining Supreme Court Justices appointed by Mireya Moscoso left the bench. Remember, he had to bide his time because the alliance between the Panameñistas and his Cambio Democratico political party broke apart in the end of August 2011. So there were a few months of political turmoil after that happened. Martinelli got his guys on the Supreme Court on 1 January 2012, and then just weeks later Martinelli decides it's time to make his move and appoint the Fifth Chamber judges. So, the Fifth Chamber was created by the PRD. Martinelli brought it back to life with the help of the Panameñistas. And how he owns it 100%. Very, very slick. Maybe "astute" would be a better word.
National Assembly Debacle: The National Assembly spent a few days fighting over the Fifth Chamber. They had intended to pass a new law (Bill 402) that would have defined the roles and functions of the Fifth Chamber. It got nasty, and even came to blows. But then the President of the Supreme Court judge Alejandro Moncada Luna, who was appointed by Ricardo Martinelli, sent a letter to both the President and the National Assembly, basically explaining the law to them. He said Law 32 of 23 July 1999 which originally created the Fifth Chamber is in full effect, and that president Ricardo Martinelli can legally appoint the three new judges at any time. He said there is no need for the National Assembly to pass a new law because the current Law 32 of 23 July 1999 is there, and it does not need to be replaced or modified. What's more, Moncada Luna indicated that if the National Assembly does pass a new law or Bill 402, the Supreme Court would likely decide it to be unconstitutional in any case, so don't bother. In the midst of a fistfight, the National Assembly voted to table Bill 402 and close the debate. End of story.
What Will Happen Now: President Ricardo Martinelli will appoint three new judges to fill the Fifth Chamber. The opposition lawmakers from the PRD and Panameñista political parties will fight like hell and resist their ratification. In the end those new judges will be approved anyway, because Ricardo Martinelli now has 37 votes in the National Assembly. Once those judges are seated, then all bets are off. The Supreme Court will be appointing a new judge to sit on the Electoral Tribunal later this year. I suspect Martinelli will make some kind of a move against the other two judges - to get one of them to come over to his side or to get one to resign or what have you. That will give Martinelli a 2-1 majority on the Electoral Tribunal. Then, Martinelli will go "opposition hunting." Question - How many of the sitting lawmakers are corrupt bastards who have been stealing the people's money for decades? Answer - practically all of them. With a 2/3's majority in the Supreme Court, Martinelli's boys can make or create criminal charges against someone like Jose Blandon, remove him from power, and toss him in prison.
It's Going To Be Interesting: Once again, my job is to simply observe all of these activities from the grandstands. There is no "gringo party" in Panamanian politics. I am advising all of my friends who are in business here in Panama to simply be friends with everyone, don't take sides, and you might not even want to state your opinion. Just nod up and down politely and agree with whoever you are talking to, if they are a Panamanian and involved in politics in any way. This is a street fight, much more like street gangs who are fighting for turf and power. Make allies at your own peril. I am going out of my way, personally speaking, to reach out to anyone and everyone on all sides to let them know my position - I don't have one. And I wish them all luck in their future endeavors. It's a great time to be Switzerland when the tanks are rolling on the horizon.
Copyright 2012 by Don Winner for Panama-Guide.com. Go ahead and use whatever you like as long as you credit the source. Salud.
