COUNTRY REPORT PANAMA
Acknowledgement The Vance Center extends its gratitude to Karina Ureña, Fernando Aued, and Andres Rubinoff at Arias, Fabrega & Fabrega law firm in Panama for their dedication and hard work as editors of this report.
______________________________________________________________________________ The information contained herein does not constitute legal advice or assistance of any kind. The Cyrus R. Vance Center for International Justice of the New York City Bar Association and the City Bar Justice Center assume no responsibility for actions or omissions incurred in any manner on the basis of the information contained herein. All rights reserved. No part of this document may be reproduced in whole or in part, stored or transmitted by any means, electronic, mechanical, copying, recording or otherwise, without written consent of the Cyrus R. Vance Center for International Justice.
REPUBLIC OF PANAMA: GENERAL INFORMATION
Geography and People. Panama is located in the southern end of Central America. An isthmus of 77,082 Km2, Panama has coasts both in the Pacific and Atlantic oceans. Its capital, Panama City, is located in the Pacific entrance to the Panama Canal. The country’s population is approximately 3.4 million inhabitants and approximately 1.5 million people live in Panama City. The population is mainly descendant from Spaniards, although there are large communities of Jews, Chinese and Caribbean immigrants as well as various other indigenous groups. The country enjoys a warm tropical climate all year round.
Language. The official language of the country is Spanish, although a significant number of business transactions are carried out in English. The business and professional population of the country is generally bilingual in Spanish and English.
Government. Panama is a democratic Republic. The government is made of an Executive, a Legislative and a judicial branch. The President of the Republic is elected every five years by popular vote. There is a constitutional separation of powers and independence among the Executive, Legislative and Judicial branches of government.
Currency. The U.S. Dollar is legal tender in Panama and is the accepted medium of exchange. The “Balboa”, Panama’s official currency, only circulates in coins. Under a 1904 monetary agreement with the United States, the Balboa is at par with the U.S. Dollar. There are no exchange controls of any kind in Panama.
Economy. Panama´s economy grew 7.9% in 2010, compared to 3.2% in 2009. GDP growth is expected to be between 5 and 7 % for 2011.1 The unemployment rate in Panama dropped to 4.7%, compared to 5.2% for 2009.2
Education. Panama´s Constitution provides education as a fundamental right of every Panamanian.3 In the Panamanian educational system, primary education is compulsory and universal. As a result, gross enrollment rate averaged 111.2% between 2005 and 2009, considering that there is adult population in literacy programs. However, in regard to pre-school, elementary and middle-school, enrollments rates averaged 66.9% and 70.8% respectively. In this regard, a 2008 Living Standards Survey concluded that most of the population that has no education lives in extreme poverty and most people surveyed that claimed they could read and write could only do so at the most basic elementary level, at best.4
Ministerio de Economía y Finanzas, “Informe Económico y Social de 2010”, p.9 at http://www.mef.gob.pa/Portal/index.html 2 Id. 3 Constitución Política de la República de Panamá, artículo 91. 4 Ministerio de Economía y Finanzas, “Informe Económico y Social de 2010”, p. 10-11 http://www.mef.gob.pa/Portal/index.html.
Legal System. Panama’s legal system is essentially based on civil law. However, the legal system has been heavily influenced by the American legal system, particularly in the area of business law. For instance, Panama’s corporate law was modeled after the corporation laws of the States of Delaware and New Jersey and Panama’s negotiable instruments law was enacted as a direct translation of its counterpart in the United States. In the area of securities custody, transfer and settlement, Panama’s law follows the indirect holding system of Article 8 of the Uniform Commercial Code. Panama also features one of the few laws in Latin America on trusts and foundations.
I. Public Attitudes A.
Approval of the President When surveyed in October of 2010, current President Ricardo Martinelli enjoyed a 69.4% approval rating, compared to 85.9 percent when surveyed in October 2009. 5
Government Approval In 2008, approximately 84% of Panamanians surveyed believed that their country is governed for the benefit of “powerful interests” as opposed to governed for the “benefit of everyone”, up from 77% in 20046. By contrast, only 70% of Latin Americans believe their country is governed for the benefit of power interests.7 That said, in a poll conducted in March 2010, 58.3 % of Panamanians surveyed thought the current administration was doing a “good” job, while an additional 10.9% believed the current administration was doing an “excellent” job.8
Attitudes toward Democracy and Democratic Institutions In 2008, attitude of Panamanians toward democracy declined with 56% of Panamanians surveyed stating a preference for democracy over other types of governments, down from 68% in 2007.9 A recent October 2010 survey further reinforced a decline with Panamanian sentiment towards the quality of their democracy, with 49.8% opining that
October 16, La Prensa, 2010, “Popularidad de Martinelli Repunta”, at http://mensual.prensa.com/mensual/contenido/2010/10/16/hoy/panorama/2372230.asp 6 2008 Report Latinobarómetro. Corporación Latinobarómetro, Santigo de Chile, at p.17. 7 2008 Report Latinobarómetro. Corporación Lationobarómetro, Santiago de Chile, at pp.1, 17. 8 March 2011, Survey, Dichter-Neira, http://www.dichter-neira.com/encuesta_opinion.php 9 2008 Report Latinobarómetro. Corporación Latinobarómetro, Santiago de Chile, at p28.
they were unsatisfied with the quality of democracy in Panama.10 These declining levels in Panamanians satisfaction towards democracy, not surprisingly, coincide with very low levels of trust in their democratic institutions. According to a 2008 report, only 18% stating they have “a lot” or “some” trust in the Panamanian Congress, 16% in the political parties, and 18% in the judicial branch, thereby exhibiting some of the lowest opinion levels toward these three pillars of democracy in all of Latin America.11 C. 1.
Toward the Rule of Law Crime and Security When surveyed in January of 2011, 33.1% of Panamanians believed that the security in the country improved, another 38.3 % established that it remained in the same stage of insecurity and other 27.8 % strongly believed that security has worsened12.
Corruption Transparency International’s latest Corruption Perception Index ranked Panama 73 among 178 countries in the world13. A recent national survey measured Panamanian’s perception of government corruption on a scale of 1 to 5 (1 being no corruption at all and 5 representing “very corrupt”) in the three government branches. 58% of respondents believed that the Executive branch ranked between 2 and 4 on the scale of corruption, while an additional 29% ranked the Executive branch as being “very corrupt (5 out of 5 on the scale).14
Attitudes or Perception of the Judiciary Branch In 2001, the judiciary is perceived to be the most corrupt institution in the country. A February 2011 survey showed that of the three government branches, the judiciary was the most corrupt institution, with 34.8% of interviewees responding that it was “very corrupt” (as compared to 33.9% regarding the Congress and 29% regarding the Executive branch).15 In that regard, Panamanians believe that judiciary independence is the most important element that must be addressed in the context of Panama’s upcoming Constitutional reforms. 16
October 17, 2010, La Prensa “Descontento por Situación de Democracia”, http://mensual.prensa.com/mensual/contenido/2010/10/17/hoy/panorama/2373330.asp 11 Id. at p. 19-21. 12 February 2011, Survey, Dichter-Neira at http://www.dichter-neira.com/encuesta_opinion.php 13 Transparency International, “ 2010 Corruption Perception Index” http://www.transparency.org/policy_research/surveys_indices/cpi/2010/in_detail 14 Id. 15 Id. 16 January 2011, Survey, Dichter-Neira at http://www.dichter-neira.com/encuesta_opinion.php
II. Structure and Composition of the Legal Profession A.
Number of Lawyers in the Country In accordance with the Supreme Court’s registry, there are more than 15,901 registered qualified attorneys in Panama.17
Concentration of Lawyers Geographically Approximately 6432 layers are concentrated in the province of Panama, which adds up to almost 40% of the lawyers in the country. The second largest group is found in the province of Chiriquí, with nearly 784 lawyers.
Data on Women in the Legal Profession The Supreme Court’s registry of licensed lawyers states that 48.3% of the registered, qualified attorneys in Panama are women; for an estimated number of 7683 women lawyers.18
Number of Law Schools The Ministry of Education reports that there are 12 universities in the country offering a Law Degree, out of which only one is a public university (University of Panama) and the other 11 are private entities with a Law Syllabus approved by the Ministry of Education.
Percentage of lawyers in Private Practice, Judiciary and Government Agencies There is not enough data regarding the percentages of lawyers in private practice. Based on the information available at the Judiciary data base, there are at least 291 lawyers in the Judiciary acting as Judges and Magistrates.
III. Data on Legal Needs From a review of the Ombudsman report for the period 2007-200819 we note there is a legal need concerning issues of family law, domestic violence, child labor, rights of handicapped citizens, HIV patient right, rights of indigenous communities and payment of social security (public pension). In addition, Panama faces a profound crisis with regard to its prison system and prison population. Access to justice is severely lacking or limited, particularly with regard to those who are detained in prisons and awaiting final sentencing. In this regard, a 2008 Harvard International Human Rights Clinic study on the state of Panamanians prisons noted that Panamá has, after 17
http://rpoji1.organojudicial.gob.pa/s4abc.php Id. 19 http://www.defensoria.gob.pa/uploads/fckeditor/Informe20072008/1.pdf 18
Cuba, the highest incarceration rate in Latin America. As of 2008, Panamanian prisons held 11,375 people, of which approximately 60% were awaiting processing and/or final sentencing. The study attributes judicial backlog as one of the principal reasons to contributing to the overcrowding of prisons and the deplorable human conditions that result thereof.20
IV. Provisions Related to Access to Justice A.
According to Article 201 of the Panamanian Constitution, the administration of justice is gratuitous; all petitions and actions will be submitted in simple paper and will not be subject to taxes or costs. Article 217 provides that the Law shall regulate the means for the rendering of legal advice and defense to those individuals who are in an economical situation that would prevent them from procuring such services from private counsel; this assistance will be provided through public entities created to such effect or through State recognized lawyer associations. Article 32 of the Panamanian Constitution provides the right to be judged by competent authority in accordance with the legal procedures, in any case not more than once for the same criminal, administrative, police or disciplinary cause. B.
Code of Civil and Criminal Procedure
The Code of Civil and Criminal Procedure, in its First Book or General Section, regulates the role of Public Defendant21. According to such provisions, as a general rule there will be at least one Public Defendant in every Judicial District (the Republic of Panama is divided into four Judicial Districts), such number to be increased to four in the First District (Panama and Colon) and two in the Third Judicial District (Chiriquí and Bocas del Toro). The same rule applies to the Circuit Court level (as a general rule there is a group of Circuit Courts with jurisdiction over a Province, Panama has nine provinces); in the Province of Panama there will be at least 10, four in Veraguas and three in Coclé. Public Defendants are appointed by the Supreme Court of Justice (Assembly of all Magistrates), from a pool of the highest rating candidates participating on an admission exam, and must meet the requirements of a Judge of the Court of Appeals (for District Level candidates) or Circuit Judge (for Circuit Level candidates). The Supreme Court may increase the number of Public Defendants as it deems adequate. 197 Public Defendants were counted in the year 2009.22
Harvard Rights Program, International Human Rights Clinic, “´Del Portón para Acá se Acaban los Derechos Humanos´: Injusticia y Desigualdad en las Cárceles Panameñas,” pp. 19-20 at http://www.law.harvard.edu/programs/hrp/documents/Lanzamiento_hoy_carceles_de_Panama.pdf 21 See Articles 413-431 of the Code of Procedure. 22 http://www.organojudicial.gob.pa/wp-content/blogs.dir/8/files/2009/funcionarios_do.pdf
The Institute of Public Defense.
The Supreme Court of Justice created The Public Defense Institute through a Statutory Agreement No. 239 of November 19, 1993. The causes are generally of criminal or police nature, as well as family law related matters.
The Statute of the Panamanian Bar Association states among its principles, the duty to offer legal services through the implementation of special programs to those individuals not having the means to procure themselves legal services. 23 E.
Code of Ethics
The Code of Ethics of the Panama Bar contains general provisions reminding counsel of his profound social duty.24 The Code of Ethics is applied by reference of Law 9 of 1984 whereby the legal profession is regulated. Under this law, a special proceeding for violation of rules of ethics was implemented (in Articles 23 through 41). In principle the Fourth Chamber of the Supreme Court would request the Honor Tribunal of the Panamanian Bar Association to study the case and submit its conclusions, in order for the Fourth Chamber of the Supreme Court to issue its decision that may lead to a suspension of the lawyer’s license and/or the annulment of his/her license. F.
Law School Curricula related to Education about Professional Ethics, Social Responsibility, Public Interest, and Human Rights.
Panama’s most relevant Law Schools have adopted mandatory ethics and human rights courses. A mandatory Professional and Judicial Ethics exists in the University of Panama´s Law program25; mandatory Professional Ethics and Human Rights courses exist in the “Latin University of Sciences and Technology” (“Universidad Latinoamericana de Ciencia y Teconología” known as ULACIT”)26; as well as in the Law Program of the Catholic University of Old Saint Mary’s (a community) (“Universidad Católica Santa María la Antigua known as “USMA”)27 In addition, certain Law Schools host Juridical Consultation Centers where students have to serve mandatory internships. Such centers generally focus on family law matters and
See http://www.cnapanama.com/estatuto.htm See http://www.cnapanama.com/codigo.htm 25 See http://www.up.ac.pa/ftp/2010/f_derecho/documentos/Plan%20de%20Estudio%20Derecho.pdf 26 See http://www.ulacit.ac.pa/popups/plan-estudio.php?id=27 27 See http://usmapanama.com/programas-academicos/licenciaturas/derecho/licenciatura-en-derecho-y-cienciaspoliticas/ 24
minor civil claims (as is the case for ULACIT)28. The students normally in their last year of Law School, will, under the supervision of their professor, provide assistance to individuals in need of judicial guidance who have limited economic means. Such is the case for the University of Panama, ULACIT, as well as in the Latin University of Panama (known as ULAT).