The right to participate in government and electoral process
On numerous occasions, the Inter-American Commission on Human Rights has referred to the importance of the exercise of the right to participate in government in a system of representative democracy. The General Assembly of the Organization of American States has also adopted a number of resolutions where the system of representative democracy is considered the one that best guarantees the observance of human rights. Such a system is, moreover, expressly adopted by the member states as stipulated in Article 3.d of the Charter of the Organization, according to which:
The solidarity of the American states and the high aims which are sought through it require the political organization of those states on the basis of the effective exercise of representative democracy.
of the key elements of the system of representative democracy is the exercise of
the political rights recognized in Article 23 of the American Convention on
Human Rights, which are among the rights that, under Article 27 of this
Convention, cannot be suspended.
Article 23 of the American Convention, the reference to “genuine” elections
implies the existence of a legal and institutional structure conducive to
election results that reflect the will of the voters. Election laws and
institutions must therefore serve to guarantee that the will of the citizenry
will be respected. Still more important is that the fundamental currents of
political thought in the country be reflected fully in the drafting of those
laws. Given the importance of electoral legislation, it is essential that it be
the product of a census rather than the outcome of an imposition by
highest-ranking electoral body is the Electoral Tribunal whose membership and
functions are spelled out in Articles 126 and 127 of the Constitution. The
Tribunal is composed of three magistrates appointed for seven years; on is
selected by the Supreme Court of Justice, another by the National Assembly of
Representatives, and the third by the Executive Branch.
functions of the Electoral Tribunal are very important since it is responsible
for appointing the members of electoral institutions: the National Teller Board,
the Circuit Teller Boards, the District Teller Boards, the Community Teller
Boards, and the polling stations. It must also hand down its opinion on the
legalization of political parties, voter registration, and the issuance of voter
registration cards. The Teller Boards are responsible for counting the votes and
forwarding the results to the Electoral Tribunal, which rules only on complaints
presented to it.
the structure of the Panamanian electoral system the electoral comptroller is
the officer in charge of monitoring the conduct of those connected with
election-related business and investigating complaints. The comptroller’s
functions follow from the provisions of Article 128 of the Constitution.
the purposes of the narrative contained in the Chapter, it is relevant to point
out that the system introduced by the Electoral Code establishes that the first
count will be made at the corresponding polling station and the results will be
entered in as many records as there are categories of authorities up for
election. Members of the polling stations may also receive copies of those
records authenticated by the secretary of the polling station. According to
Article 266 of the Electoral Code “copies shall be as valid as the originals
forwarded to electoral boards for official tabulation.”
the case of elections for president, vice presidents and legislators, the
original record will be sent to the National Teller Board, to the Electoral
Circuit Teller Board and to the Electoral Tribunal. The Teller Boards will
recount the votes and enter the results in their own records. The overall
tabulation of votes in elections for president and vice presidents shall be done
by the National Teller Board.
the visit the Inter-American Commission made to Panama from February 27 to March
3, 1989, various sectors expressed reservations about the membership of the
Electoral Tribunal as well as certain irregularities they perceived in the way
it operated. They also expressed their reservations on the election laws.
noted that the amendments to the election laws approved through Law Nº 9, of
September 21, 1988, were introduced by the ruling majority in the House because
the opposition parties (Molirena and Democracia Cristiana) were not allowed to
state their position. When a reading of minority opinion was barred in the
committee that had prepared the amendments, the minority walked out. The
election legislation was not, therefore, the product of a democratic process of
debate and formulation; instead, it was skewed by the exclusion of the
viewpoints of, major opposition sectors.
for the membership of the Electoral Tribunal, a number of persons told the
Inter-American Commission that the Chairwoman, Yolanda Pulice de Rodríguez, had
been appointed to membership of the Tribunal by the Supreme Court of Justice in
1979; she had been one of the members of the Tribunal in 1984 elections. The
Vice Chairman, Lic. Luis Carlos Chen, was appointed in 1985 by then President
Del Valle, while the other Magistrate, Lic. Aurelio Correa, had been designated
by the National Assembly in October, 1988, after having served for 10 years as
Comptroller of the Electoral Tribunal. They also pointed out that at present the
Comptroller is Lic. Raúl López, who for 17 years has served as legal counsel
for the Defense Forces. Given this composition, they considered that the
election authorities were no guarantee of impartiality nor did they allow for
opposition participation in decisions that might affect it.
Inter-American Commission was also informed of several decisions of the
Electoral Tribunal that dovetailed with tactics attributed to the government,
calculated to divide the opposition parties. An episode in 1984 was cited in
this connection: a faction of the Panameñista Party broke away and was
ultimately recognized by the Electoral Tribunal; as a result, Arnulfo Arias had
to form the Panameñista Auténtico Party to surmount the obstacles created when
the minority faction that had opposed him was recognized. In December 1988 there
was again division in the ranks of the Panameñista Auténtico Party and the
Electoral Tribunal again recognized the group most closely aligned with the
government’s positions, though most of the party leadership had supported its
Secretary General, Guillermo Endara. Endara would go on to become the
presidential candidate of the Alianza Democrática de Oposición Civilista in
the elections held on May 7, 1989. The Commission also heard that something
similar had happened in the case of the Republican Party whose leadership
supported ADOC in the elections.
the election laws, the Inter-American Commission heard frequent references to
the changes that should be made to the rules on voting by members of the Defense
Forces; the view was that the legal provisions adopted permitted them to vote at
several polling stations, though no provision is made for the use of indelible
ink to identify those who have already voted. It was also mentioned that voting
lists were frequently altered.
was also stated that the membership of polling stations worked to the advantage
of the party in power, since the chairman is appointed by the Electoral Tribunal
and the parties forming the Coalición para la Liberación Nacional (COLINA)--an
official line party--constitute the majority that would have to rule on
charges increased during the period immediately before the May 7 elections.
The opposition candidates brought a formal complaint concerning what they
considered to be irregularities in the Register of Voters, citing specifically “he unaccountable increase in the
voting population, which was almost twice the increase in the voting age
population during the same period.” They also denounced “the creation of
false voters” which caused “the duplication of over 100,000 voter names;
supplying “government supporters with a number of personal identification
cards”; “the unlawful practice of transporting thousands of voters to circuits where the
opposition was especially strong”; “registering voters in voting districts
far from their place of domicile” while a significant number of deceased
voters were kept on the Register of Voters.
Inter-American Commission also heard numerous references to the general
conditions amid which the electoral process was unfolding, which adversely
affected the authenticity of the scheduled elections. There were repeated
references to the closing of newspapers, television and radio stations, such as
La Prensa, El Siglo, Extra, the weekly Quiubo, Channel 5 and Radio Mundial and
Radio KW Continents. According to
reports received by the Commission, authorization to publish the new daily Hoy
had not been granted either.
what the Inter-American Commission was able to determine, the severe
restrictions that opposition sectors encountered in exercising their right to
freedom of expression stood in sharp contrast to the way in which
government-aligned groups were able to saturate voters with messages in support
of their positions. The right to freedom of expression is discussed in another
chapter of this Report. Suffice it to say here that the kinds of restrictions
placed on the exercise of this right during the electoral process put opposition
sectors at a clear disadvantage vis-à-vis the coalition supporting the
government. The Episcopal Conference of Panama and the various international
observers and human rights agencies all emphasized this point, which weakened
one of the conditions vital to he kind of genuine elections called for in
Article 23 of the American Convention on Human Rights.
factor that adversely affected the electoral process, as reported to the
Inter-American Commission on Human Rights, was the predicament of various
political leaders who had been forced to leave the country. As indicated in the
chapter on freedom of movement and residence, the Government of Panama adopted a
practice of detaining and harassing the political opposition, seizing their
property and forcing them to leave the country. This reprehensible government
conduct has prevented a major group from participating in election activities
and thus has given the government coalition an advantage.
journalists and members of the opposition have been detained for long periods
without being charged. During those periods they were held incommunicado and
were mistreated and tortured, then released and expelled from the country.
Violations of the right to personal liberty caused by this conduct on the
part of the Government of Panama have been fostered by the attitude taken by the
Judiciary, which has not enforced the rights of persons so affected and has
become another vehicle for such abuses.
its visit in February, the Inter-American Commission was also informed that
serious violations of the right of assembly were occurring. According to
reports, a number of legal restrictions were imposed on the exercise of the
right of assembly, as a result of which peaceful opposition demonstrations were
confronted with various obstacles that had to be surmounted in order to take
place. In addition to legal restrictions, there were other restrictions imposed
by the government such as threats to the owners of transportation companies that
their licenses would be revoked if they allowed their vehicles to be used to
drive participants to demonstrations.
de facto restrictions contrast with the measures taken to enable people to
attend COLINA meetings, where public transportation was used and public
employees were forced to attend lest they be fired. International observers
found that state resources were drawn upon heavily during the ruling party’s
campaign and the Catholic Church, through the Episcopal Conference, denounced
the use of “civil servants, public funds and government facilities to support
certain party segments.”
acts that most seriously impaired the exercise of the right of assembly,
however, have been this disproportionate and unnecessary violence used by law
enforcement forces against opposition demonstrators who were peacefully and
legitimately exercising their rights. As stated in the chapter on the right to
humane treatment, the Commission has an abundance of documentary evidence
testifying to the disproportionate and excessive violence used by the Defense
Forces to put down demonstrations.
Commission also has abundant evidence of the use of birdshot against peaceful
demonstrators, which hit mere bystanders or people who happened to be present at
the time. The loss of eyes and other wounds caused by birdshot are the very
serious consequences of this reprehensible government practice.
groups are another tool organized and used by the Government against opposition
demonstrations. Such groups, whose ties to the Defense Forces are public
knowledge, were initially formed for the alleged purpose of confronting a
possible invasion by the United States. In practice, their tactics have been
intimidation and gross mistreatment--even death in the case of Endara's
bodyguard--of the opposition under the passive stares of the Defense Forces,
which did nothing to curb the paramilitary’s excesses. Documentary evidence
provided to the Inter-American Commission shows how members of the Traffic
Department of the Defense Forces were transformed into a paramilitary group in
order to attack an opposition demonstration.
these grave, arbitrary measures against those who oppose the coalition
supporting the government was an effort to use the press and speeches by
government officials, to create an atmosphere of tremendous hostility toward
opposition candidates. By contrast, high ranking officers in Defense Forces
publicly supported COLINA candidates, openly defying Law Nº 20 which regulates
the functions of the Defense Forces and requires that they be strictly neutral
in political matters.
can be inferred from the facts set forth thus far, the atmosphere in Panama for
the exercise of political rights as defined in Article 23 of the American
Convention was highly objectionable. Indeed, the legal and institutional system
for the organization of elections offered no guarantees of impartial conduct on
the part of the organs responsible for implementing the actions related to it.
The general conditions in which the process was taking place, rather, were
slanted in favor of the ruling party coalition and against the opposition
because of the lack of freedom of expression, the serious restrictions on the
opposition's right to personal liberty, the grave violations of the right of
assembly and the intimidation of members of the opposition and pressures exerted
against voters to support the ruling party candidates, both by high-ranking
government officials and by officers of the Defense Forces.
were circumstances leading up to the elections of May 7, 1989, which are
analyzed in the following section.
The May 7, 1989 elections and its aftermath
May 7, 1989, elections were conducted in an atmosphere of great social tension.
The elections had been called to elect a President, Vice Presidents and
legislators. According to the
Constitution, those elected were to take office on September 1st.
opposition’s experience in the 1984 elections, coupled with the tensions on
the day prior to the election, made designation of political party
representatives at the 4,255 polling stations located in 1,944 voting locations
throughout the country, a particularly key issue. Various international
observers were present but ultimately they encountered a series of problems that
made it difficult for them to perform their task.
the voting itself, the opposition complained of various minor irregularities
such as the lack of sufficient ballots for their candidates, delays in getting
the balloting under way in some rural areas, multiple voting by soldiers of the
Defense Forces and alleged buying of votes. They acknowledged, however, that the
voter turn-out was very high; impartial observers acknowledged that the alleged
irregularities had not been sufficient to alter the outcome. These observers
pointed out that, in general, relations existed between ADOC and COLINA
representatives and the officials appointed by the Electoral Tribunal to solve
any problem that might arise were good.
a result, the opposition considered that the first tabulation made at the polls
was correct. Representatives of the opposition obtained the corresponding
records certified by the secretary of the polling station, as stipulated in
Article 266 of the above-mentioned Electoral Code.
Inter-American Commission was informed, however, that acts of intimidation and
violence occurred in certain places and had been followed by the theft of
records by members of the Defense Forces or paramilitary groups. This complaint
was filed, for example, by the Penonomé Parish priest and Cocl6 Episcopal
Vicar; there were complaints of other acts of violence at the Venezuela School
in Panama City, where the apparent intent was to remove the records, tamper with
them and return them to the District Courts.
most serious irregularities apparently were committed in voting tabulations at
the level of District Teller Boards, where voting records received from polling
stations had been sent for a recount that, once completed, was to be reported to
the National Teller Board. As widely charged, some places where these District
Boards were to function were the target of attacks by paramilitary gangs, while
elsewhere such boards were unable to function since, given the total lack of
guarantees, their members refused to meet.
records for the 40 District Boards were to be sent to the National Board to be
re-tabulated and for the winners to be announced.
Board officials are also designated by the Electoral Tribunal. Representatives
of the opposition parties described the irregularities observed as follows:
international observers such as former U.S. President Carter concurred in the
complaint of grave irregularities at the National Teller Board. The Catholic
Church and 279 international observers from 20 countries also corroborated these
must be pointed out that opposition and the Archdiocesan Lay Coordination
Commission of the Panamanian Episcopal Conference organized two systems for
retallying votes. The Church organized a sample count based on statistical
techniques successfully used in other elections held under exceptional
conditions such as in the Philippines and Chile. The system allowed the
Panamanian Episcopal Conference to issue a communiqué on Monday, May 8,
declaring the victory of the Alianza Democrática de Oposición Civilista by
“a substantial majority” (74.2 percent) over COLINA (24.9 percent). It must
be borne in mind that the sample technique had a margin of error of +/- 9
May 10, 1989, the Electoral Tribunal issued Decree Nº 58 declaring the
nullification of the elections held on May 7, at all levels of elective
office.” The Electoral Tribunal based its decision on the following:
once the voting was over at 5 p.m., matters transpired–and still
persist–that have significantly altered the final outcome of the elections
the normal course of elections was disrupted by the obstructionist acts of many
foreigners summoned by national or foreign political forces without benefit of
invitation by the Electoral Tribunal; their obvious purpose was to reinforce the
theory of election fraud publicized worldwide by United States authorities long
before the elections.
That the brief summation of these facts, taken from the reports received by the Electoral Tribunal…, shows that ballots were constantly being removed at polling stations, that votes were being bought by political parties and, in particular, that voting records and other documents were missing thereby making it utterly impossible to declare any candidate a winner.
on the basis of records obtained at the polling stations the opposition
tabulated its results even though some records could not be obtained because
they had either been stolen or destroyed before the end of the tally at the
corresponding station. The following June 4, based on records from 80.9 percent
of the polling stations, the opposition concluded that it had won with 65% of
the votes, whereas COLINA had received 26% of the votes. The corresponding
records were delivered to the Panamanian Episcopal Conference for custody.
the irregular situation, the Alianza Democrática de Oposición Civilista called
on its followers to hold peaceful demonstrations to demand, first of all, that
the results be turned in, and second, that its victory be recognized. Such
peaceful demonstrations were repressed by the Defense Forces with unheard-of
violence, allowing and encouraging the action of paramilitary groups that,
during the demonstration on May 10, physically attacked the opposition
candidates, killing Manuel Alexis Guerra, the bodyguard of candidate Guillermo
Endara, and wounding another in the middle of the street, with the Defense
Forces standing by impassively. World television then recorded how a member of
the paramilitary viciously beat up a bloody Ford, while the men in uniforms
standing by did nothing to prevent it. Presidential candidate Guillermo Andara
was also beaten over the head; his injuries were so serious that he had to be
said in the first part of this report, events in Panama led to convocation of
the Twenty-first Meeting of Consultation of Ministers of Foreign Affairs of the
Organization of American States. On August 24, 1989, the President of the
Meeting issued a declaration that in paragraph 4 request the Inter-American
Commission on Human Rights to conduct another visit to Panama for the purpose of
updating the information on the situation of human rights in that country.
September 1, Eng. Francisco Rodríguez took office as President of Panama. His
appointment by the General Council of State has no basis in the Panamanian
Constitution, as the Panamanian Episcopal Conference pointed out in its
September 14, 1989, communiqué. The new President, for his part, said that his
government “will call elections and hand over the reins of power as soon as
conditions allow;” he then said that the United States must halt its
aggression and return to the National Treasury those funds it had arbitrarily
retained. He also mentioned that the next elections should be held “without
foreign interference or manipulation.”
light of the information available to the Inter-American Commission, as set
forth above, the electoral process in which the right to participate in
government was exercised in Panama involved legal and institutional factors that
furthered conditions that would deprive the election held on May 7, 1989, of any
authenticity. Both the legal instruments upon which the process was based as
well as the membership of election agencies responsible for the election, were
so seriously flawed as to deprive their decisions of any legitimacy.
problems were compounded by the creation of conditions inimical to the
opposition factions' free exercise of the rights to freedom of expression and of
assembly. The harassment targeted at them included the unlawful deprivation of
the freedom of several distinguished members of the opposition who were then
either expelled from the country or coerced into exile. The violence unleashed
against the opposition included the use of disproportionate and indiscriminate
resources, including paramilitary groups, guilty of extremely serious violations
of the right to life and humane treatment of persons who were peacefully
exercising their right to assemble.
negative situation provoked by the government was in sharp contrast to the
assistance provided to the candidates of the ruling party coalition, in whose
support both government employees and government resources were used, in
violation of the Constitution, and for whom high-ranking officers of the Defense
Forces actively campaigned, in direct violation of the law.
spite of the many restrictions that the government imposed on the opposition,
the information provided to the Commission indicates that the results of the
elections were in favor of the Alianza Democrática de Oposición Civilista,
causing the Electoral
Tribunal to nullify the elections. The government, however, has not been
able to overcome the prevailing situation and has been forced to, resort to
formulas lacking constitutional foundation to continue managing the country.
resulting lack of legitimacy, coupled with an obvious absence of popular
support, make it likely that under the current government, developments in the
areas of human rights in general and of the exercise of political rights in
particular will be negative. This situation must be corrected within the
framework of observance of the American Convention on Human Rights, which is
binding on Panama as a State party. This means that the freely expressed will of
the people must be fully respected or accords must be worked out with the
interested sectors so that the will of the people may be expressed (at the
earliest possible date). As the Permanent Committee of the Panamanian Episcopal
Conference has stated:
Article 23 of the American Convention on Human Rights says: “Right
to participate in government: 1. Every citizen shall enjoy the following
rights and opportunities: a. to take part in the conduct of public affairs
directly or through freely chosen representatives; b. to vote and to be
elected in genuine periodic elections which shall be by universal and equal
suffrage and by secret ballot that guarantees the free expression of the
will of the voters, and c. to have access under general conditions of
equality to the public service of his country. 2. The law may regulate the
exercise of the rights and opportunities referred to in the preceding
paragraph only on the basis of age, nationality, residence, language,
education, civil and mental capacity, or sentencing by a competent court in