Download 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
© 2011 University of Notre Dame
Introduction
The scene could have hardly been more illustrative of this book’s topic.
On January 16, 2002, before a crowd of cameramen and reporters, Panamanian legislator Carlos Afú, then of Partido Revolucionario Democrático (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 Industrial y de Servicios (CEMIS).2 Legislator Afú claimed to have received the
money from fellow party and assembly member Mateo Castillero, chairman 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, commentators, media, and civil society organizations called for a sweeping investigation of the “Afúdollars” case. But the tentacles of the CEMIS affair
1
© 2011 University of Notre Dame
2 | Political Careers, Corruption, and Impunity
were spread too broadly throughout Panama’s political establishment.
They stung not only the leadership of the opposition PRD—the political 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 ProsecutorGeneral’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 Mayhew (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 discussing 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 confidence
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 freedoms. 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 indispensable component of the democratic system. For Freedom House
© 2011 University of Notre Dame
Introduction | 3
(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; associational and organizational rights; the rule of law, and personal autonomy 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 proclaimed 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 remaining 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).
© 2011 University of Notre Dame
Table I.1. Goals, Activities, and Behaviors of Panama’s Assembly Members
Goals
Activities
Behaviors
Political
advancement
Reelection to an
assembly seat
Distributing patronage
Buying votes
Manipulating elections
Switching parties
Appointment to
government office
Supporting the incumbent executive
Supporting a presidential candidate
Election to party office
Distributing patronage
Buying votes
Manipulating elections
Using office for
private gain through
legal means
Seeking emolument increases
Blocking emolument reductions
Seeking assembly and committee
board appointments
Using office for private
gain through illegal
means
Abusing privileges
Selling votes
Peddling influence
Misappropriating public resources
Personal
enrichment
Exemption
Manipulating immunity
from prosecution prerogatives
Manipulating judicial
decisions
Denying immunity suspension
Stretching immunity provisions
Peddling influence with judges
and prosecutors
“Quid pro quo”: discarding cases
against Supreme Court justices in
exchange for justices’ discarding
cases against deputies
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Introduction | 5
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 predictors 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 channels. 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
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6 | Political Careers, Corruption, and Impunity
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 durability) of the democratic regime. As noted in a survey of Latin American political institutions, poor performance by politicians — including
behaviors deemed contrary to the public interest—“appears to have contributed 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 relate 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 activities 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 political 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).
© 2011 University of Notre Dame
Introduction | 7
Second, the study underscores the differences between the behavior of the members of Panama’s assembly and scholarly predictions. Although 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 assumption 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 recourse 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 “Illusions 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 implication 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.
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8 | Political Careers, Corruption, and Impunity
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 politics (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 ranging 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 classification, 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,
© 2011 University of Notre Dame
Introduction | 9
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 transferred 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, impunity, 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 attempted, including a measure contained in the Freedom House surveys.
One of the Freedom House subscores covers such issues as independence of the judiciary, prevalence of the rule of law in civil and criminal matters, civilian control of the police, protection from political terror 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 (Freedom 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 officials and politicians” (Transparency International 2009). Scores range between 0 (highly corrupt) and 10 (highly clean). Since 2001, when Transparency 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
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10 | Political Careers, Corruption, and Impunity
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, Indonesia, 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-fiveyear period covered in this study (five constitutional terms, plus the beginning 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 discussed 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 installed under military rule and its constitutional design has remained basically unchanged after the country’s transition to liberal democracy helps
elucidate the effects of an authoritarian legacy on the behavior of political actors. On this basis, findings from this research illustrate relevant features of political representation in liberal democracies where impunity and systemic corruption (as well as clientelism) are informally
institutionalized.
An Understudied Case
Informally institutionalized corruption, impunity, and clientelism condition the behavior of Panamanian politicians, among them assembly
© 2011 University of Notre Dame
Introduction | 11
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 actually 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 qualifies 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 shortcomings (Antinori Bolaños 1995, 2000).
Alvarado (1999), Bernal (2004), González Marcos (2004), and González 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 commemoration of Panama’s centennial, explores more directly the configuration
and work of the assembly in the hundred years following the foundation of the republic in 1903 (Sánchez González 2004). In recent years
the Elites Parlamentarias initiative at the University of Salamanca (Spain)
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12 | Political Careers, Corruption, and Impunity
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 exercises hold promise for theory enhancement, which renewed interest
in democracy and democratic development has stimulated in recent decades. They can also contribute to institutional reform and policy initiatives 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 twentyfive-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 Moscoso
(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.
© 2011 University of Notre Dame
Introduction | 13
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. Comparisons with Chile, especially in the descriptive sections (chapters 2 and
5), are drawn from my research at the Kellogg Institute at the University 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 background 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 assists 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,
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14 | Political Careers, Corruption, and Impunity
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 unforeseen 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 examples of illegal actions toward the same objective—among them vote
selling by deputies, such as in the CEMIS case mentioned at the beginning 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. Appendices A through T provide supplementary information in support of
the book’s arguments and findings, including a list of sources and other
persons consulted.
© 2011 University of Notre Dame
Part I
Institutions
© 2011 University of Notre Dame
© 2011 University of Notre Dame