80
c)
Article 2 of Law 25 granted the Cabinet Council powers to determine
which actions would be regarded as attempts against democracy and the
constitutional order, so as to proceed to apply the dismissal administrative
punishment. This rule violated the principle of legality, since, at the time of
the events, said actions were not so characterised and no one may be
punished for acts held as lawful at the time that they were performed;
d)
when Cabinet Council Resolution 10, which characterised the actions or
conducts that should be regarded as attempts against democracy and the
constitutional order was published, the dismissal sanctions had already been
applied;
e)
Article 70 of the Constitution of Panama establishes the principle of
legality for the application of the dismissal disciplinary sanction;
f)
the public actions that caused the appointments of the public workers
to be declared non subsistent, are administrative punitive actions;
g)
the State workers were dismissed because priority was given to a
particular law, that is, Law 25, which established that it was a public order
law and that it was retroactive as of December 4, 1990;
h)
the offence attributed to the workers was never proven.
The
dismissed workers were the victims of illegal and arbitrary deeds, since
legality and legal security guarantees were lacking in the internal
proceedings;
i)
by virtue of the non-retroactivity principle, the laws that imply the
application of punishment may be applied only in the direction of the future,
since the person who would be eventually punished must know beforehand
which acts are permitted and which are prohibited to her or him. The
application of the law has time limitations. In the punitive domain, only such
law as is in force at the time that the punishable act is committed may be
applied; and
j)
Law 25 violated the principle of non-retroactivity by punishing acts
committed before its adoption, since it created one cause for dismissal, which
is the most serious punishment for the worker. It likewise violated the
principle of defence through the application of an arbitrary criterion, since
only the opinion of the “highest executive of each institution” was required to
apply the dismissal.
Arguments of the State
102.
For its part, the State argued that:
a)
Article 9 of the Convention cannot be applied to Law 25, since this law
does not establish any penalty whatsoever; what it does is to authorise the
dismissal of those public servants who took part or who would take part in
acts against democracy and the constitutional order;
b)
penal law is applied to all, whereas the disciplinary power is applied
only to officials or employees in exercise of their duties. An administrative
sanction is different from a penal sanction;
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