Toward a new constitution: first, the procedure

On May 5, one year before the 2019 elections, President Varela called for consultations with the political parties and “civil society,” likely to be followed by a proposal to convene a constitutional convention to be submitted to the voters on May 5, 2019.

Varela campaigned on the convening of a constitutional convention, but then backed off, pleading uncertainty about how it could be controlled. Now he’s caught in a huge scandal about taking millions of dollars from Odebrecht. Even if impunity is to be the rule for politicians, that coating of slime only greases the Panameñista Party for a quick exit from the presidency and years in the wilderness. The post-invasion alternating cycle of Panamanian politics already made the repetition in power of Varela’s party unlikely. In any case, with the third-largest caucus in the National Assembly Varela’s power has always been limited. It’s even more constrained now that old legislative arrangements have broken down.

As ugly as the Odebrecht stain that mars Varela and the Panameñistas may be, it’s minor compared to the hideous disfigurement of Ricky Martinelli’s Cambio Democratico party. CD can claim that it has turned a corner, and the Rómulo Roux’s party is not the Martinelista mafia. They may have a ton of money to promote that image but it seems unlikely to work. As the Electoral Tribunal has banned the publication of opinion polls we don’t know how improbable a CD comeback might be, but were it likely there would surely be some outward signs of that sort of shift.

That leaves the next presidency to the PRD by default, right? The Electoral Tribunal may be moving in ways that promote that result. The tribunal’s moves to oppress and eliminate independents are specifically designed to marginalize them. Although they may have the money to break out of that trap, the Motta family’s MOVIN seems bent on self-destruction by scandal like the political parties. Still, there are other independents who are energetically fighting long odds. A year away from the voting they should not be counted out.

Even if a year can be a long time in politics, look at the timing. Varela is in effect saying that a constitutional revision process may disrupt the next presidency but it won’t disrupt his. To the extent that the argument takes center stage over the coming months — at a time when he can hardly get anything passed by the legislature anyway — it may serve Varela and his party well.

Meanwhile, to put the convening of a constituent assembly on the ballot takes a two-thirds vote of the National Assembly. Varela is not going to muster that without some sort of compromise.

The PRD’s Pedro Miguel González is calling for a speedy reform process to run its course by next year’s elections. As in ‘You don’t disrupt OUR presidency. We disrupt YOUR presidency.’

But the PRD, a child of the dictatorship, is the party associated with the current exhausted constitution. There may be a residue of the thinking that has that party a member of the Socialist International, but the bankers have more influence than the workers. These days the party’s salient ideas about governance are Zulay Rodríguez’s neofascist xenophobia, the political patronage scams that got Benicio Robinson booed at the national baseball tournament and Nito Cortizo’s continuing objection to what “free trade” has done to Panamanian agriculture. The notion that the presidency and the power to write the next constitution will fall into the PRD’s lap because everyone else is in worse shape is a risky bet.

The present constitution provides a mostly imprecise method of holding a constitutional convention. Only 41 delegates, divided according to population among the provinces and comarcas. A parallel convention rather than an originating one, that is, a convention that does not assume the powers of the existing branches of government as it goes about its business.

The timing and political realities make an originating convention most unlikely. But a parallel convention that finishes its work in a year or less and proposes a draft constitution that calls for prompt new elections and the rapid replacement or renewal of the existing institutions is possible and likely.

The burning procedural issues are the ones that have been left out of the law. The blanks should not be left to the party-controlled Electoral Tribunal to fill in. Nor should the party-controlled executive or legislative branches be able to boost the discredited parties without a public outcry. 

Neither the current horrible mishmash of single-member and multi-member legislative circuits, nor the unequal-populated corregimientos or municipalities, should form the basis for apportioning a constituent assembly. The problem with at-large elections is that to run province-wide generally takes a lot of money. Many small constituencies of roughly equal population would be the ideal way to go, which would best be served by a lot more than 41 delegates. That sort of boundary drawing, however, is not going to happen in any positive fashion. At-large election of party slates by province seems to be the way to go, for all of its faults.

Better, however, to call for a convention with more delegates – say 101 – elected at-large in partisan elections that treat all independents as if they were a single party. The top vote getters for each party would form the line for who gets the spots won by the aggregate of that party’s share of the vote, and if 35 percent of the electors in a province go for independents, the independents who ran line up in order of how many votes they individually got to claim that slightly more than one-third of the delegates – even if the top finisher is a leftist and the next spot goes to a religious conservative and the spot after that goes to an athlete or entertainer whose political views are largely unknown.

One major procedural issue won’t be addressed by the criminal who currently occupies the post as Electoral Prosecutor. In 2014 people went around distributing building materials, groceries, domestic appliances and cash all paid for with cash skimmed from overpriced government contracts – and Eduardo Peñaloza supported that. Let The Panama News not be the one to suggest acts of violence, or unpleasant confrontations among neighbors, when the eternal thugs come around to buy votes. But those who buy, and those who sell, are traitors to their country and no cosmetic euphemism or understanding attitude can mask that hard reality. How to deal with the traitors in our midst may be the most important procedural question en route to the new constitution that Panama needs.

For those who are entirely fed up with what has happened to the Panamanian government and want to knock away its structural supports for corruption, the main procedural concern is organizing to fight an election under rules designed to protect incumbents and the status quo. Welcome to the real world. It will take hard work under harsh conditions to replace an entrenched and self-perpetuating predatory caste and its arcane ways of doing things. Even as we argue about unfair rules, now is the time to organize a campaign to win despite those obstacles.

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