By Andrew Ryan Aubuchon
It has been a difficult six months in Panama. For no one more so than the families of the nearly 2000 who have died from Covid-19. In a country that has maintained one of the world’s highest infection rates per capita, few have been spared the heart stopping experience of learning that a family member, friend, neighbor, or coworker has tested positive for Covid-19, and hundreds of thousands have suffered from a distance as a loved one battles against this horrible disease in isolation. Yet the outbreak of Covid-19 has brought to Panama more than just the health and economic crisis that it has reaped upon so many countries around the world – it has also strained the constitutional legitimacy of the country’s government.
Due to the unfortunate reality that unpredictable crises may arise, democratic constitutions often include mechanisms by which governments may suspend citizens’ rights on a temporary basis to protect public order, safety, and health. Panama’s Covid-19 outbreak provided a textbook example of a situation in which government may be justified in using its constitutionally delegated authority to summon emergency powers that restrict citizens’ liberties, as Panamanian President Laurentino “Nito” Cortizo began doing in March. Most saliently, Article 27 of the Constitution’s guarantee that “Every person may travel freely throughout the National territory and change domicile, or residence, without restrictions” has been denied through an ongoing lockdown that saw citizens confined to their homes for all but six hours per week for a period of nearly five months before being slightly loosened. As a result of this lockdown constitutional rights related to the use of their private property, to work and earn a salary, and to receive an education – among others – have also been severely restricted. Vitally, the process by which this could have legally occurred is expressly articulated for the purpose of protecting citizens’ rights in the long-term by maintaining democratic legitimacy during times of crisis and preventing arbitrary and abusive action by the State.
Article 55 of the Panamanian Constitution states that:
“In case of foreign war or internal disturbance that threatens peace or public order, all, or a part, of the Republic may be declared in a State of Emergency, and the guarantees of Articles 21, 22, 23, 26, 27, 29, 37, 38, and 44 of this Constitution, may be temporarily suspended, partially or totally. The State of Emergency and the suspension of Constitutional guarantees mentioned above shall be declared by the Executive Branch through a Decree, agreed upon in Cabinet Council. The Legislative Branch, in its own right, or at the request of the President of the Republic, shall take cognizance of the State of Emergency if it lasts longer than ten days, and confirm or revoke, totally or partially, the measures adopted by the Cabinet Council relative to said State of Emergency.”
Per Article 55, the government never met the requirements necessary to suspend constitutional guarantees. In place of the constitutionally mandated State of Emergency being issued by the Cabinet Council and being endorsed by the National Assembly, the government has relied exclusively on Cabinet Resolutions and Executive Decrees which included deceptive language invoking an emergency situation, but clearly do not possess the legal authority to suspend constitutional rights. Therefore, the government has continuously acted in an unconstitutional manner that constitutes an egregious abuse of power.
Adding to the distress is the history and nature of the political party of President Cortizo and a majority of the National Assembly – The Democratic Revolutionary Party (PRD). The PRD is what is known in political science literature as an authoritarian successor party, meaning that it emerged from a past authoritarian regime but has continued to operate after a transition to democracy. Following the 1989 U.S. invasion and a return to democracy, the party of Panama’s past dictators, the PRD, instituted internal democratic reforms and has since won multiple nationwide multi-party elections. It should be noted that the PRD’s nature as an authoritarian successor party does not in any way delegitimizes it from being a productive player in Panama’s democratic process. However, its authoritarian past naturally elicits increased concern in light of its ongoing constitutional abuses.
The government’s response to the Covid-19 crisis and the weakness of democratic institutions that it exposed should be deeply concerning to Panamanian civil society and international observers concerned with democracy and the rule of law. The government has failed to safeguard its constitutional legitimacy and the basic rights of all citizens. This situation can only be righted through the repeal of all previous unconstitutional resolutions and decrees and a reestablishment of the constitutional order. If a state of emergency is needed, it should be established through the constitutionally mandated channels as articulated in Article 55. While Panama’s current political backsliding may seem marginal compared to ongoing misgovernment throughout Central America, surely Panama can use Nicaragua, El Salvador, Honduras and Guatemala’s example of overreaching executive power and lawlessness as a model to avoid.
Andrew Ryan Aubuchon is a freelance writer based in Panama City, Panama. His writing has appeared in academic journals and newspapers across the globe.