CHAPTER ONE

THE LEGAL FRAMEWORK

A. Panama's International Commitment

1. The Republic of Panama has expressed its commitment to the protection of human rights by becoming a party to a number of international conventions.[1] Recently, it has signed and ratified the Optional Protocol to the International Covenant on Civil and Political Rights (Gaceta Oficial, 18.269, 4 febrero 1977), the International Covenant of Economic, Social and Cultural Rights (Gaceta Oficial, 18.336, 18 mayo 1977), and the International Covenant on Civil and Political Rights (Gaceta Oficial, 18.373, 8 julio 1977).

Additionally, Panama participated in the approval of the American Declaration of the Rights and Duties of Man (1948) and is a signatory of the American Convention on Human Rights. At the time of this report, Panama's Assembly of Representatives of the Corregimientos had approved the instrument of ratification of the American Convention and was preparing to deposit that instrument.

B. The Constitution of 1972

When the present Government of Panama assumed power in October of 1968, it suspended, in part, the Constitution of 1946. A year later, it restored most of the individual guarantees contained in that Constitution. Among those not restored were the right of assembly in the cities of Panama and Colón (Cabinet Decree No. 341, 31 October 1969) and the right of political parties to participate in the political process as legally recognized parties. In 1971, it established a "Commission of Revolutionary Reforms to the National Constitution" and convoked popular elections for an Assembly of Representatives of the Corregimientos (sub-divisions of municipal districts).[2] The twenty-five members Commission, appointed by the governmental junta, was charged with preparing within a six month period an amended version of the Constitution of 1946. This document was then to be presented to the Assembly of Representatives of the Corregimientos for its discussion and consideration, and a one-month time period was set for its rejection or approval. The Assembly met on schedule and approved the new Constitution, which went into effect on October 11, 1972.

The Constitution consists of 277 articles, under thirteen titles, a section entitled "Final Provisions," and another with the heading "Transitory Provisions." The basic human rights are provided for under Title III, "Individual and Social Rights and Duties," and Title IV, "Political Rights." However, Article 277, one of the "Transitory Provisions," is directly related to the effective protection of these rights.

Chapter One of Title II spells out the "Fundamental Guarantees." The Government assumes the obligation of protecting the lives, honor and property of its nationals and of the aliens under its jurisdiction (Article 17). There is no penalty of death under Article 29, and the individual is protected from arbitrary arrest and detention by Articles 21 and 22 (habeas corpus). The application of measures injurious to the physical, mental or moral integrity of prisoners is prohibited by Article 27, and equality before the law is established under Article 19, with some distinctions being allowed between Panamanians and aliens (Article 20).

The right to freedom of religion and worship is protected, "Without any limitation other than respect for Christian morality and public order," (Article 34) The Catholic religion is recognized in the Constitution as that of the majority of the Panamanians (Article 34), and it is taught in the public schools (Article 101), though religion classes are not compulsory. Religious organizations may have legal capacity and hold and administer property (Article 35), but "Ministers of religious faiths and members of religious orders may not hold appointive or elective office, except those related to social welfare, public instruction or scientific research." (Article 41)

The rights to freedom of expression, of assembly, and of association are institutionalized by Articles 36 through 40. Private property is recognized (Article 29, 43-48), as are the right of petition (Article 40, 49), the right to due process (Articles 18, 21-22, 24, 30-32), the inviolability of the home (Article 25) and private forms of communication (Article 28), and the right of residence and transit (Articles 26, 29).

The remaining chapters of Title III deal primarily wit social rights rather than individual guarantees. In Chapters II and III, the relationship between the family and the state and labor and the state is regulated. Chapters IV through VII set out the obligations of the State in the protection and promotion of "National Culture," Education," "Health, Social Security and Social Welfare," and the "Agrarian System."

Political rights are covered under Title IV. All Panamanians over eighteen years of age are considered citizens (Article 118), but those rights of citizenship may be suspended by express or implied renunciation of one's nationality (Article 120, 13), or by penalty in accordance with law. Suffrage is described as "a duty and a right of all citizens whose rights have not been suspended" (Article 122), and the law is required to regulate if "on the basis that it is free and universal, direct or indirect, and that voting is equal and secret."

Some guidelines are given with respect to parties and electoral supervision. Article 124 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 allowed to "supervise and contribute to the expenses incurred by natural persons and political parties in the electoral process." (Article 125) and an autonomous Electoral Court is provided to interpret and enforce the electoral law. (Article 126-128)

The Constitutional provisions relating to human rights will be set out and discussed in more detail as required in he following chapters.

C. Innovations in the Constitution of 1972

1. The Constitution of 1972 contains the following new elements, which tend to strengthen the protection of human rights:

a. Private telephone communications are made inviolable and not subject to interception. (Article 28)

b. The State is called upon to establish a family protection agency. (Article 58)

c. Equal wages for equal work were guaranteed without distinction of sex or nationality in the 1946 Constitution. The new Constitution also prohibits distinction in this area on the basis of age, race, social class, or political or religious ideas. (Article 62)

d. Article 67 protects the mother returning to her job after giving childbirth. She may not be discharged for one year, except in special cases prescribed by law.

2. Relative to the right of participation is the establishment of the Assembly of Corregimientos (discussed in detail in Chapter 7).

3. Nevertheless, other modifications have tended to weaken the protection accorded human rights in previous documents.

a. The most significant change in this regard is found in Article 277, a transitory provision, which concentrates power not only in the executive, but in one person who is mentioned by name (this problem is treated in more detail in Chapter VIII):

Article 277. Brigadier General Omar Torrijos Herrera, Commander in Chief of the National Guard, is recognized as Maximum Leader of the Panamanian Revolution. Consequently, and to ensure the fulfillment of the objectives of the revolutionary process, he is authorized to exercise the following powers for a period of six years: to coordinate all work of the public administration; to appoint, and remove freely the Ministers of State and members of the Legislative Commission; to appoint the Controller General and Deputy Controller General of the Republic, the Directors General of autonomous and semi-autonomous entities, and the Magistrate of the Electoral Court to be appointed by the Executive, as provided in this Constitution and the law; to appoint the chiefs and officers of the Public Forces in accordance with this Constitution, the law and the Military Register; to appoint, with the approval of the Cabinet Council, the Magistrates of the Supreme Court of Justice, the Attorney General of the Republic, the Solicitor General, and their respective alternates; to approve the execution of contracts and the negotiation of loans; and to direct foreign relations. In addition, General Omar Torrijos Herrera shall be empowered to attend meetings of the Cabinet Council and the National Legislative Council with voice and vote, and to participate with voice in the deliberations of the National Assembly of Municipal Representatives, the Provincial Coordinating Councils and the Community Boards.

b. In contrast to the Constitution of 1946, the new Charter fails to establish sufficient controls over the executive discretion to assume extraordinary power through the institution of a state of siege, Article 118(25) of the document of 1946 empowered the National Assembly to invest the Executive, temporarily, and upon the assent of the Permanent Legislative Committee, limited extraordinary powers which were to be exercised through decree laws subject to the approval of the Assembly. There was no specific provision for the suspension of any individual guarantees.

Article 50 of the current Charter, however, provides for the suspension of specific guarantees through the declaration of a state of siege: "In the event of foreign war or domestic disturbance threatening the peace or public order, all or part of the Republic may be declared to be in a state of siege, and the effects of Articles 21 [no arbitrary detention], 22 [habeas corpus], 25 [inviolability of the domicile], 26 [freedom of travel], 28 [inviolability of correspondence and telephone conversations], 36 [freedom of expression], 37 [freedom of assembly], and 43 [guarantee of private property] of this Constitution may be temporarily suspended, wholly or in part."

The Constitution does not state directly who is to exercise this power to declare a state of siege. However, reference to this matter is found under Title VI ("The Executive organ"), Chapter III ("The Cabinet Council"), Article 180, which reads as follows:

The Cabinet Council has the following functions:

5. To approve, under the collective responsibility of all its members and of the Commander in Chief of the National Guard, decrees which the President may issue concerning the suspension and restoration of guarantees;

Since the Cabinet Council consists of the meeting of the Ministers of State and the Vice-President, under the direction of the President (Article 179), and the Commander in Chief of the National Guard is appointed by the President (Article 164, 1), as are the Ministers of State (Article 136, 7), there is little limitation, other than its counsel, upon the President's power to declare a state of siege and suspension of guarantees.

Under the present Constitution, then, the elected assembly no longer has the authority to invest extraordinary powers in the executive, and the authority to approve the exercise of those powers has passed from elected representatives to members of the Cabinet Council who, with the exception of the Vice-President, are appointed by the executive. These changes, which facilitate the suspension of guarantees, tend to weaken the protection of human rights in general.

c. Article 41 states that "Officials of the Catholic Church in Panama, such as Bishops, Vicars General, Episcopal Vicars, Apostolic Administrators and Prelates Nullius, must be Panamanian citizens by birth." The same requirement applies "to ministers of other religions with powers or jurisdictions equivalent to that of the . . . Catholic officials".

This type of provision which is not unique, may interfere with the independence of churches, and consequently, with the freedom of religion. In view of the well-known dearth of native priests and ministers in Panama, as well as in other hemispheric countries, churches would be considerably weakened were this article enforced.

D. Decrees Affecting Human Rights

1. Cabinet Decree Number 58, 3 March 1969 (Gaceta Oficial, 7 March 1969), abolished existing political parties.

2. Cabinet Decree Number 341, 31 October 1969 Gaceta Oficial, No. 16,480, 5 November 1969), reestablished constitutional guarantees, with the exception of the right of assembly in the cities of Panama and Colón. This decree was revoked on December 13, 1977, following the visit of the Special Commission.

3. Cabinet Decree Number 342, 31 October 1969 (Gaceta Oficial, No. 16.480, 5 November 1969), established the crime of subversion of public order, defined the elements of such crime, set out the penalties for different types of violations, including imprisonment up to 15 years, and provided for sentencing by authorities of the executive branch of government with no intervention on the part of the judicial branch. Decree 342 was also revoked on December 13, 1977.

4. Cabinet Decree Number 343, 31 October 1969 (Gaceta Oficial, No. 16, 480, 5 November 1969), makes it a crime punishable by fine and imprisonment of three to twelve months to publish false or unauthorized, slanderous or insulting information by any means of communication. Findings of guilt and sentencing are in the hands of the executive branch.

Decree 343 was revoked on February 14, 1978, as this report was being prepared, and was replaced by Law No. 8 on that same date. (This law is commented upon briefly in Chapter 5, p. 82).

Notes___________________

[1] The Republic of Panama has ratified the following instruments: Convention on the Prevention and Punishment of the Crime of Genocide (9th December 1948), I.L.O. Convention (No. 29) concerning Forced Labour (1930), I.L.O. Convention (No. 105) concerning the Abolition of Forced Labour (25th June 1957), the Convention of American States on Asylum (20th February 1928), the Convention of American States on Political Asylum (26th December 1933), Convention of American States on Diplomatic Asylum (28th March 1954), the Convention of American States on Territorial Asylum (28th March 1954), the I.L.O. Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organize (9th July 1948), the I.L.O. Convention (No. 98) concerning the Application of the Principles of the Right to Organize and Bargain Collectively (1st July 1949), the I.L.O. Convention (No. 122) concerning Employment Policy, the Inter-American Convention on the Granting of Political Rights to Women (2nd May 1948), the Inter-American Convention on the Granting of Civil Rights to Women (2nd May 1948) the Convention of American States on the Nationality of Women (26th December 1933), the Geneva Convention for the Amelioration of the Condition of the Wounded and Sickin Armed Forces in the Field (12th August 1949), the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (12th August 1949), the Geneva Convention relative to the Treatment of prisoners of War (12th August 1949), the Geneva Convention relative to the Protection of Civilian Persons in Time of War (12th August 1949), the International Convention on the Elimination of All Forms of Racial discrimination (21st December 1965), the I.L.O. Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (29th June 1951), the UNESCO Convention against Discrimination in Education (14th December 1960), and the I.L.O. Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation (25th June 1958).

[2] Cabinet Decree 214, 11 October 1971.