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therefore, for as long as the legal rule is in force, it serves as a legal basis for the
action performed during its term of validity. If, parallel to the administrative
conflicts proceeding, an unconstitutionality action is brought where a legal rule that
must be applicable in the administrative proceeding is questioned and, before a
decision is made in the administrative conflicts proceeding the Full Court solves the
unconstitutionality case and declares the rule unconstitutional, the Justices of the
Third Section of the Supreme Court have to take such decision into consideration,
since otherwise a legal rule that no longer exists would be applied. As recognised by
the general doctrine, the administration has broad powers to annul its actions
automatically, with some exceptions.
In Panama, the protection of legality
corresponds to the Third Section of the Supreme Court.
With respect to
contestation, once the governmental recourse is exhausted, the case is forwarded to
the Third Section of the Supreme Court. The Constitution establishes that if the
Third Section deems the action, of dismissal in this case, legitimate, the judgment is
final, definitive and binding, and that it has to be published in the Official Gazette.
Thus, it would be very difficult for the administration, in this second assumption, to
revise such action as to constitutionality or legality, because of the fact that a
decision that legally resolved the case exists.
This is independent from the
possibility of the administration itself to revise the situation as a matter of course,
which it could do based on its discretional powers to revise. Chapter Three of the
Panamanian Constitution regulates individual and social rights and duties; it includes
a chapter that contains the basis for the regulation of the relationship between
capital and labour. The basic rules and principles that govern the management of
State personnel appear in Chapter Eleven, conceived under the public servant title.
The Constitution defines what public servants are at the beginning of this Chapter,
and it establishes separate legal systems for relations between capital and labour,
and relations between public servants and the State.
In Chapter Two the
Constitution establishes public careers, among which it mentions the administrative
career, the educational career, the health career, and all others deemed necessary
according to the legislators, and it establishes in Article 300 that these careers shall
be established and regulated by law. Article 294 establishes that any official, any
person holding a public position, who receives remuneration from the State, is a
public servant. Article 2 of the Labour Code adopted in 1971, established that as a
general rule it was not applicable to public servants, save for the rules that the Code
itself would establish exceptionally and for a specific purpose. There were some
cases of public servants who were governed in certain aspects by a system similar to
that of labour law, as in the case of Law 8 of 1975 and certain laws of 1979 on some
port workers. Article 295 of the Constitution of Panama establishes that public
servants shall be of Panamanian nationality without distinction of race, sex. religion,
beliefs or political membership, and that their appointment and dismissal shall not be
the absolute and discretional power of any one authority, except as regards the
merits system and stability on the job for public servants, which shall depend on
proficiency, loyalty and morality in the service. When the current administrative
career law indicates the rights and duties of public servants it does not point out in a
general manner the right to the stability of public servants. However, when it
mentions the rights of administrative career officials it grants the right to stability.
In jurisprudence that it has been issuing for several decades on certain public
careers, the Supreme Court always maintained that when the administrative career
law or the judicial career law were not in force, public servants could be freely
appointed and dismissed. Before December 1990 there was no administrative career
law; therefore, the relations between public servants and the State agencies were
governed by general rules and by some special rules of an administrative nature
established usually in the internal regulations and in the laws that regulated certain
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