Political Careers, Corruption, and Impunity

Political careers, corruPtion, and imPunity

Panama’s assembly,

1984 – 2009

carlos Guevara mann

University of Notre Dame Press

Notre Dame, Indiana

The scene could have hardly been more illustrative of this book’s topic. On January 16, 2002, before a crowd of cameramen and reporters, Pana- manian legislator Carlos Afú, then of Partido Revolucionario Demo - crático (PRD),1 extracted a stack of paper money from his jacket. Those six thousand dollars, he said, were the first installment of a payment for his vote in favor of a multimillion-dollar contract between the government of Panama and a private consortium, Centro Multimodal Indus- trial y de Servicios (CEMIS).2 Legislator Afú claimed to have received the money from fellow party and assembly member Mateo Castillero, chair- man of the chamber’s Budget Committee. Disbursement of the bribe’s balance—US$14,000—was still pending. That was the only kickback he had received, claimed Afú, alluding to the accusation of another fellow party and assembly member, Balbina Herrera,3 that Afú had received “suitcases filled with money” to approve the appointment of two government nominees to the Supreme Court. Afú’s declarations sent shock waves throughout the country and seemed to confirm the perception of Panama’s political system as one in which corruption, impunity, and clientelism prevail. As political figures exchanged accusations and added more sleaze to the story, commenta- tors, media, and civil society organizations called for a sweeping inves- tigation of the “Afúdollars” case. But the tentacles of the CEMIS affair

were spread too broadly throughout Panama’s political establishment. They stung not only the leadership of the opposition PRD—the politi - cal arm of the 1968– 89 military dictatorship—but also the government of President Mireya Moscoso, Panama’s first woman president, and her Panameñista Party (PPAN), which was founded by the military’s historic adversary, Arnulfo Arias. Predictably, investigations by the Prosecutor- General’s Office never succeeded. In a few months, the case was filed by the Supreme Court (Alianza Ciudadana Pro Justicia 2004).4 This book is about behaviors, such as those portrayed above, by members of representative assemblies in liberal democracies. Following May- hew (1974, 8) as well as Shugart and Carey (1992), the term representative assembly best describes the organization with whose members this book deals. In daily usage, terms such as legislature, parliament, or congress are used interchangeably to refer to the legislative branch of government. Representative assembly, however, is preferable to legislature because dis- cussing and enacting legislation is not the only function elected chambers perform in liberal democracies and executives in both parliamentary and presidential regimes also have important lawmaking powers. Parliament, in turn, connotes a political system in which the survival of the government depends upon the confidence of the majority in the representative chamber. Congress suggests a regime type in which the branches of government have separate origin and survival, a notion that excludes those assemblies, generally called parliaments, upon whose con fi dence government survival is contingent. Thus, parliaments and congresses are the two main types of representative assemblies. In 2004 Panama’s congress regained the name of National Assembly, which it had in 1904– 68, and its members once again became known as “deputies.” Between 1984 and 2004 the unicameral chamber was called the Legislative Assembly and consisted of “legislators.” The regime type known as liberal democracy comprises at least three dimensions: political representation, popular elections, and civil free- doms. The representative ingredient refers to “government by the freely elected representatives of the people” in accordance with the people’s preferences (Lijphart 1984, 1; 1999, 1). In modern liberal democracies such representation is normally mediated through political parties, an in- dispensable component of the democratic system. For Freedom House

(2009c), the electoral dimension consists, at a minimum, of the following elements:

1. A competitive, multiparty political system; 2. Universal adult suffrage for all citizens (with exceptions for restrictions that states may legitimately place on citizens as sanctions for criminal offenses); 3. Regularly contested elections conducted in conditions of ballot secrecy and reasonable ballot security, in the absence of massive voter fraud, and that yield results that are representative of the public will; 4. Significant public access of major political parties to the electorate through the media and through generally open political campaigning.

The liberal component encompasses “a substantial array of civil liberties.” These include freedom of information, expression, and belief; as- sociational and organizational rights; the rule of law, and personal au- tonomy and individual rights.5 In its classification of states, Freedom House (2009c) labels liberal democracies as “free” countries. According to the organization, Panama has been a liberal democracy or “free” state since 1994. This book’s argument is simple, even self-evident for anyone who has paid attention to congressional or parliamentary politics throughout the world. The literature on legislators’ behavior, mostly based on the U.S. experience, has long assumed that representatives want to advance their careers—either through reelection (where it is allowed), appointment to political office, or election to a party position—more than anything else. By focusing on the behavior of the 309 individuals who were pro- claimed as duly-elected members of Panama’s assembly in the six general elections held between 1984 and 2009, this book argues that representatives’ actions might also be motivated by other goals and that these additional objectives may be as attractive to assembly members as career advancement. In Panama the most salient additional goals are getting rich and re- maining free from prosecution. Other goals might be recognizable in different settings; identifying them is a challenge this book poses to the scholarship. In pursuing their objectives, Panama’s assembly members undertake certain activities and engage in specific behaviors (see table I.1).

Goals Activities Behaviors

Political Reelection to an Distributing patronage advancement assembly seat Buying votes Manipulating elections Switching parties

Appointment to Supporting the incumbent executive government oﬃce Supporting a presidential candidate

Election to party oﬃce Distributing patronage Buying votes Manipulating elections

Personal Using oﬃce for Seeking emolument increases enrichment private gain through Blocking emolument reductions legal means Seeking assembly and committee board appointments

Using oﬃce for private Abusing privileges gain through illegal Selling votes means Peddling inﬂuence Misappropriating public resources

Exemption Manipulating immunity Denying immunity suspension from prosecution prerogatives Stretching immunity provisions

Manipulating judicial Peddling inﬂuence with judges decisions and prosecutors “Quid pro quo”: discarding cases against Supreme Court justices in exchange for justices’ discarding cases against deputies

Institutionalization

Whether or not objectives in addition to reelection can be pursued by politicians—and to what degree they complement the goal of career advancement—depends, to a large extent, on the characteristics of institutionalization in a polity. Institutionalization, as Huntington reminds us, “is the process by which organizations and procedures acquire value and stability” (1968, 12).6 Recent scholarship recognizes two broad types of institutionalization: formal and informal (Helmke and Levitsky 2006; North 1990; O’Donnell 1996, 1998b). In those areas where formal institutionalization prevails—where codified rules constitute strong pre- dictors of political behavior—we expect that politicians in general, and members of representative assemblies in particular, will adhere to formal rules and procedures.7 Because most modern polities have written rules that prohibit the use of public office to obtain personal gain or exemption from prosecution, strong formal institutionalization in activity areas concerning political representation, accountability, and the rule of law does not provide an incentive to the search for the additional objectives identified in this book. Within democratic polities, however, informal institutionalization exists alongside or instead of formal institutionalization in some areas. This type of institutionalization refers to normally unwritten rules that emerge—and are conveyed and implemented—through unofficial chan- nels. Informal institutionalization covers a broad range of phenomena: some might complement and others may compete with (or subvert) the formal institutions of democracy (Helmke and Levitsky 2006, 5, 13– 16). This book focuses on three informal institutions that have a direct impact in shaping the behavior of Panama’s assembly members: corruption, impunity, and clientelism.

Goals and Behaviors and Their Impact on Democracy

In states where corruption, impunity, and clientelism are informally institutionalized, the behavior of representatives might include—in addition to eﬀorts to secure reelection or career advancement—legal or illegal

attempts to become rich and remain immune from prosecution. At a large scale, self-serving behaviors such as these are likely to have a negative impact on the quality of democracy and the strength (and even dura- bility) of the democratic regime. As noted in a survey of Latin Ameri- can political institutions, poor performance by politicians—including behaviors deemed contrary to the public interest—“appears to have con- tributed to growing frustration in many countries” (Mateo Díaz et al. 2007, 275). These are the main inferences drawn from the systematic examination of the individual and collective activities of the members of Panama’s assembly from 1984 to 2009 undertaken in this book. The identified behaviors are observable throughout time, under authoritarianism (1984– 89), during the transitional period (1989– 94), and under liberal democracy (1994– 2009); in both men and women representatives (although the assembly has been overwhelmingly populated by men); in members from the upper, middle, and lower classes (even though upper-class members are a minority); in deputies from rural and urban areas (although more than half of the members represent urban areas); and in representatives from all assembly parties (though a majority of the sample belongs to PRD). On this basis, some behaviors of Panama’s assembly members re- late more to the nature of political institutionalization— characterized on the isthmus by the coexistence of formal and informal institutions with effects on the political system—than to regime type, gender, class, social origins, or partisan preference.8 This finding merits cautious examination and testing in other settings. In essence, the book accomplishes three tasks. First, it reveals some fundamental goals of the members of Panama’s assembly and some activi - ties and behaviors they undertake to attain those objectives. The goals, which supplement an understanding of representatives’ behavior that has tended to focus on formal institutional factors, include advancing a politi cal career, getting rich, and enjoying freedom from prosecution. Some activities through which Panamanian deputies procure these objectives include reelection, using the prerogatives of public office for personal gain, and manipulating immunity provisions (when they were in place in 1984– 2004). Assembly members engage in several behaviors within each activity category in order to pursue their goals (see table I.1).

Second, the study underscores the differences between the behavior of the members of Panama’s assembly and scholarly predictions. Al- though the literature is vast and not wholly homogenous, certain themes recur in most analyses of the behavior of representatives. The desire for reelection—or, more generally, political advancement—is an assump- tion about the behavior of assembly members most students of the topic adhere to, and patronage distribution (though not more blatant vote buying) frequently emerges as a means representatives employ in their efforts to achieve political advancement (Carey 1996; Fenno 1973; Jones 1998; Mainwaring 1999; Mayhew 1974; Morgenstern 1998; Samuels 1998). Contrariwise, the few works that mention personal enrichment only do so in passing (Fenno 1973, 1; Mayhew 1974, 16), and most have not addressed members’ interest in immunity from prosecution or their re- course to vote buying, party switching, or electoral manipulation as a means to advance their careers. Third, the book endeavors to assess the ways in which those behaviors exhibited by the members of Panama’s assembly affect the democratic system, especially in democratic states where informally institutionalized corruption, impunity, and clientelism are important features of political life. Since the publication of Guillermo O’Donnell’s “Il- lusions about Consolidation” (1996), the formally – informally institutionalized dichotomy has served as a useful tool to understand major differences in quality and performance among democratic regimes. In what directly pertains to the study of representatives, the major impli- cation is that informal institutionalization allows or encourages behaviors not normally exhibited where there is a close fit between codified rules and politicians’ actions. Political behaviors stemming from informal institutionalization have not generally been addressed in the literature, which until very recently has focused on the experience of advanced liberal democratic regimes characterized by this close fit (Helmke and Levitsky 2006). The three tasks accomplished in this research are relevant because at least since the adoption of the U.S. Constitution (1787), the question of politicians’ personal motivations has lain “at the very heart of democratic theory” (Loomis 1994). More broadly, the activities of representatives have a direct impact on the quality of democratic representation.

Since representation is one of the pillars of the modern democratic system, the ways in which representatives’ behavior impacts representation is an important issue in the study of democratic states and their prospects for further democratization.

Why Panama?

Recent studies have emphasized the need to engage in “systematic institutional analysis of countries” with a view to identifying the nuances of domestic political processes, assessing their impact on policy formulation, and contributing to a broader understanding of contemporary poli - tics (Stein et al. 2005, 257). In this regard, Helmke and Levitsky (2006, 27) suggest that “eﬀorts to identify and measure informal institutions require substantial knowledge of the communities within which those rules are embedded.” This study argues that an in-depth look at the dynamics of assembly politics in a liberal democracy such as Panama, where informally institutionalized corruption, impunity, and clientelism contribute to shaping political outcomes, will broaden our understanding of the behavior of representatives, the relevance of informal institutions in shaping their conduct, and the consequences of their behavior for the democratic system. As noted, this book relies on the Freedom House rankings, which classify the world’s independent states (as well as some other territories) into three categories: “free,” “partly free,” and “not free.”9 On a scale rang- ing from 1 (“most free”) to 7 (“least free”), “free” states are those that have average scores between 1.0 and 2.5. The Freedom House classiﬁ- cation, included in the annual Freedom in the World report, is broadly used throughout the scholarship to ascertain the nature of contemporary political regimes. According to Freedom in the World 2009, in 2008 there were 89 liberal democracies worldwide, including Panama, out of a total of 193 independent states. Panama’s ranking as a “free state” continuously since 1994 makes the isthmus the fourth longest-lived liberal democracy among Latin America’s ten, mostly recent, liberal democratic regimes.10 After a U.S. invasion dislodged the armed forces and its political arm, PRD,

from power, the country returned to civilian rule in 1989. As a result of general elections held in 1994, PRD—then the main opposition party— returned to power. In 1999, 2004, and 2009 general elections also returned the opposition to the presidency and executive power was trans - ferred without signiﬁcant hurdles. In 2008 Freedom House assigned the country a Political Rights (PR) score of 1 and a Civil Liberties (CL) score of 2 (with 1 representing the highest and 7 the lowest level of freedom), averaging 1.5 (Freedom House 2009e). In Panama elections—the archetypical formal institution of democracy— coexist alongside informally institutionalized clientelism, impu - nity, and systemic corruption. A broadly accepted indicator of clientelism, covering the universe of liberal democracy, is not yet readily available. But several assessments of rule of law strength have been at- tempted, including a measure contained in the Freedom House surveys. One of the Freedom House subscores covers such issues as indepen- dence of the judiciary, prevalence of the rule of law in civil and criminal matters, civilian control of the police, protection from political ter- ror as well as war and insurgencies, and equality of treatment under the law for all segments of the population. In this appraisal, subscores range between 0 (weak rule of law) and 16 (strong rule of law). Panama’s most recent subscore is 9 out of 16, indicating a rather weak rule of law (Free- dom House 2009b). Transparency International’s Corruption Perceptions Index (CPI) is a conventional measure of corruption. The CPI “ranks countries in terms of the degree to which corruption is perceived to exist among public oﬃ- cials and politicians” (Transparency International 2009). Scores range between 0 (highly corrupt) and 10 (highly clean). Since 2001, when Trans- parency International began rating Panama on the CPI, the country’s score has never exceeded 3.7, indicating a strong perception of corruption. In 2009 Panama’s score of 3.4 placed the country at position 84 (alongside El Salvador, Guatemala, India, and Thailand) among the 180 countries included in the ranking.11 Transparency International’s 2009 report provided a CPI for 76 of Freedom House’s 89 liberal democracies. Among these 76 states, the median Freedom House rule of law and Transparency International CPI scores were 13 and 5.1, respectively (see appendix A). Because both

phenomena (systemic corruption and a weak rule of law) overlap to some degree, the argument can be made that impunity and corruption are informally institutionalized in liberal democracies with scores under the median in both categories. In 2008– 9 there were 32 such “free states,” including Panama as well as older liberal democracies (for example, Italy) and much larger countries such as Brazil, India, Indone- sia, and Mexico, among others. These 32 countries constituted nearly one-third (36 percent) of the world’s liberal democracies and 17 percent of the world’s independent states, and their aggregate population of 2 billion represented 29 percent of the planet’s population of 6.9 billion in 2010 (U. N. Population Division 2009). In the effort to acquire insights into the effects of the aforementioned informal institutions, focusing on Panama is convenient for various reasons. Except for a brief interruption (1989– 90),12 the country’s National Assembly has been in continuous operation since 1984. The twenty-five- year period covered in this study (five constitutional terms, plus the be- ginning of a sixth term) is not too brief to prevent the analyst from making reliable claims about the behavior of Panama’s deputies and not too long to excessively complicate the exercise. Similarly—as dis- cussed in chapter 1—although Panama’s assembly is one of the smallest representative chambers among contemporary liberal democracies, the number of deputies during the period under review (309) is neither too small to inhibit the formulation of causal inferences nor too large to make that objective unmanageable. The fact that the assembly was in- stalled under military rule and its constitutional design has remained ba- sically unchanged after the country’s transition to liberal democracy helps elucidate the effects of an authoritarian legacy on the behavior of po - liti cal actors. On this basis, findings from this research illustrate relevant features of political representation in liberal democracies where impu nity and systemic corruption (as well as clientelism) are informally institutionalized.

An Understudied Case

Informally institutionalized corruption, impunity, and clientelism con- dition the behavior of Panamanian politicians, among them assembly

members. Deputies in Panama thus exhibit certain behaviors that, though not predicted in the literature, are nevertheless evident in some liberal democracies where those informal institutions also operate. The members of Panama’s assembly, for example, seek reelection as a means to advance their political careers—as theorized by the scholarship—but also to get rich and ensure freedom from prosecution. To obtain reelection, they distribute patronage—as theories of legislators’ behavior predict they should—but also buy votes more directly (sometimes ac- tually purchasing them for cash), switch parties, and manipulate elections. These behaviors, in turn, have clear consequences for the quality of representation because—among other effects—they distort the link between representatives and their constituents, which is essential for the proper functioning of the democratic system. For these reasons, as noted above, it is interesting and useful to study the political behavior of Panama’s deputies. Yet another reason to focus on Panama is that even though it quali - fies as a liberal democracy, the country’s assembly politics have not received much systematic attention in scholarly circles. In-depth studies of Panama’s assembly since the transition to democracy are, indeed, scarce. A pioneering work on representation, focusing on political parties and the Legislative Assembly up to the 1994 elections, is the unpublished doctoral thesis of Italo Antinori Bolaños, who later became the country’s first ombudsman. His comprehensive volume on Panamanian constitutional history also deals with the assembly’s design, functions, and short- comings (Antinori Bolaños 1995, 2000). Alvarado (1999), Bernal (2004), González Marcos (2004), and Gon - zá lez Montenegro and Rodríguez Robles (2001), among others, focus on additional design features of the chamber. Brown Araúz (2002, 2005, 2010), Franco (2001), Freidenberg (2010), García Diez (2003), Otero Felipe (2006, 2008), Sánchez González (1996), and Valdés Escoffery (2006b) address aspects of the party system and electoral issues relevant to the assembly since the removal of the military regime. A chapter in the three-volume Historia general de Panamá, composed in commemo- ration of Panama’s centennial, explores more directly the configuration and work of the assembly in the hundred years following the founda- tion of the republic in 1903 (Sánchez González 2004). In recent years the Elites Parlamentarias initiative at the University of Salamanca (Spain)

has collected and analyzed information on Panama’s deputies as part of the Institute of Ibero-America’s ongoing research on Latin American politics. Even so, many aspects of representation in the country remain understudied. Political representation in Panama thus provides a fertile ﬁeld for data gathering and subsequent cross-national comparative analysis. Such ex- ercises hold promise for theory enhancement, which renewed interest in democracy and democratic development has stimulated in recent de - cades. They can also contribute to institutional reform and policy ini- tiatives to strengthen democracy and ensure that the beneﬁts of good government reach the broadest possible segments of the population.

Overview of the Book

This book achieves its objectives—examining the behavior of Panama’s deputies, underscoring the differences between this behavior and the predictions of theory, and assessing the ways in which representatives’ actions affect the democratic system—through comparative analysis. The study contrasts the political behavior of individual assembly members in 1984–2009. This task entails a scrutiny of 309 cases (that is, assembly members), representing eighteen political parties, over a twenty- five-year period. In an effort to determine the effects of changing institutional features on the behavior of representatives, the study also undertakes historical institutional analysis. It compares members’ actions under military dictatorship (1984– 89), during the transitional period (1989– 94), and under liberal democracy (1994– 2009). It contrasts behaviors exhibited during the administrations of four military-appointed executives (in 1984– 89)13 as well as under Presidents Guillermo Endara (PPAN, 1989– 94), Ernesto Pérez Balladares (PRD, 1994– 99), Mireya Mos coso (PPAN, 1999– 2004), Martín Torrijos (PRD, 2004– 9), and Ricardo Martinelli (CD, 2009– 14). To the extent that it is possible in a case study, the book engages in cross-national comparisons that contrast the behavior of the members of the Panamanian assembly with the actions of representatives elsewhere.

In this endeavor, I compare Panama to (1) all other liberal democracies worldwide (states classified as “free” by Freedom House in 2008); and (2) the Latin American republics classified as electoral democracies by Freedom House in 2008 (that is, all “free” and “partly free” countries in the region).14 On occasion, the project engages in more specific comparisons with the United States, the model for Latin America’s presidential democracies, and other liberal or electoral democracies. Com- parisons with Chile, especially in the descriptive sections (chapters 2 and 5), are drawn from my research at the Kellogg Institute at the Univer- sity of Notre Dame in spring 2010. The book is divided in two parts. Part one focuses on institutions, which in the framework employed here provide a partial explanation for the political behavior of assembly members. Chapter 1 examines the notion of political representation, representative assemblies generally, and the Panamanian chamber particularly, providing a historical back- ground of the assembly. Chapter 2 looks at the party system in Panama and offers a profile of its members. Chapter 3 addresses certain formal institutions that influence representatives’ behavior in Panama: the electoral system, with a special focus on seat allocation rules; district size; and the balance of power between the executive and the assembly. Chapter 4 deals with three informal institutions: systemic corruption, impunity, and clientelism. These formal and informal institutions allow representatives to pursue other ends besides just reelection (or political advancement) and encourage different means for gaining reelection. The formal and informal institutions dealt with in part one constitute what in politi - cal science terminology are referred to as “explanatory variables,” or those factors that purport to explain the behaviors addressed in part two. The second part of the book focuses on the three main goals exhibited by Panama’s assembly members. While they are dealt with in separate chapters, it should be noted that these objectives are not exclusive. Quite the contrary: in the Panamanian scenario, they may be complementary. In other words, political advancement through reelection as- sists some representatives’ efforts to continue seeking rents and remain free from prosecution, or becoming rich helps some assembly members finance their reelection campaigns. As shown in chapter 6, the allocation of partidas circuitales, or constituency funds, to legislators until 2001,

which allowed some representatives to increase their rents and fund successful bids for reelection, illustrates the frequently complementary nature of these goals. Chapters 5, 6, and 7 examine representatives’ interest in political advancement through reelection. The fifth chapter describes the reelectoral scenario in Panama and places it in comparative perspective. Chapter 6 examines the role of patronage in procuring reelection. Patronage is one strategy the literature points out as helpful in contributing to representatives’ reelection. In Panama, however, it encompasses dimensions un- foreseen by theorists of representatives’ behavior. Chapter 7 focuses on party switching and electoral manipulation, behaviors that the literature has not usually addressed as successful tactics for achieving reelection but that are used by Panama’s assembly members. Chapters 8 through 11 examine specific objectives of members of Panama’s assembly that are not generally covered in the literature—such as personal enrichment and a desire to remain free from prosecution— and a number of behaviors these goals trigger. The motivation to get rich generates legal and illegal actions by assembly members. Chapters 8 and 9 examine legal attempts at enrichment. Chapter 10 provides ex- amples of illegal actions toward the same objective—among them vote selling by deputies, such as in the CEMIS case mentioned at the begin- ning of this introduction. Chapter 11 scrutinizes seat holders’ quest to ensure freedom from prosecution. The book concludes with a summary of findings as well as a reflection on the effects of assembly members’ behavior on the quality of democratic representation and the prospects for further democratization of Panama’s precarious liberal democracy. Ap- pendices A through T provide supplementary information in support of the book’s arguments and findings, including a list of sources and other persons consulted.

Institutions