35
Since 1972 the Third Administrative Conflicts Section of the Supreme Court was
acting as a Labour Cassation Court.
Therefore, with a law declared mostly
constitutional, and with decisions of the Supreme Court itself at its Administrative
Conflicts Section, which affirmed that Law 25 was not illegal in the least, it is difficult
to find a remedy to repair such decisions in Panamanian domestic law. The only
possibility has been the international recourse. In Panama, certain administrative
employees of the Central Government are under special systems. Ever since the
adoption of the 1946 Constitution, an administrative career provided for by the
Constitution has been in existence. There are employees of State enterprises and
autonomous institutions that enjoy guarantees that are provided for in the Labour
Code, even without being qualified as administrative employees, because the law
that created entities such as the INTEL, the IRHE, and others mentioned in the
complaint, stipulate that their rights shall be those established in the Labour Code.
In Panama, normally the President of the Republic, with the signature of the
respective State Minister, makes the appointments and decrees the dismissals.
However Article 295 of the Constitution establishes that the appointment and
removal of public employees shall not depend on the absolute and discretional power
of any one authority, except for some exceptions established in it. This Article adds
that public servants are governed by the system of merit and stability in their
positions, and that their permanence on the job is subject to their competence,
loyalty and morality in service. Said constitutional provision was in force at the time
that the events of this case occurred. It is not possible to maintain in Panama that
there is no administrative career, while there are articles of the Constitution such as
Article 295. Concerning acquired rights, in Panamanian public law it is considered
that, after compliance with all legal requirements, vacation is a right acquired by all
those who work at the service of the State. In Panama, General Torrijos, who
named all State servants, eliminated the distinction between public officials and
public employees.
Not only is it not possible to renounce personally the rights
granted by the Constitution, but also it is not possible for a law to change them,
since a law would be unconstitutional if it eliminated a right recognised by the
Constitution. Law 9 of 1994 is the general law of the administrative career and it
was regulated in 1997. Some times the administrative career is not regulated, and
the Panamanian courts have had to fill the gaps thereby generated by applying
analogous laws, since it is not possible not to comply with a constitutionally
established right for absence of a law that will regulate it. Concerning the validity
and applicability of international law, before the May 23, 1991, judgment of the
Supreme Court, on the request for the unconstitutionality of Law 25, three
judgments were handed down that admitted expressly the application of
international law, especially on the subject of individual guarantees, judicial
guarantees, etc. In the first one of those judgments, of July 24, 1990, the Supreme
Court pointed out that some rules of international law could become a part of the
constitutionality block, to the extent that they did not contradict the basic principles
of the rule of law and of the institutions that support national independence and the
self determination of the Panamanian State. The situation analysed in that judgment
is of a general nature, but there are other judgments that refer specifically to the
American Convention. In a November 8, 1990, judgment, the Supreme Court
pointed out that Article 8 of the American Convention brings together a
constitutionality block with Article 32 of the Constitution, to the extent that it refers
to the constitutional guarantee of a fair proceeding or due process. The third
judgment was handed down by the Supreme Court on March 19, 1991. In it, Article
8 of the Convention is regarded applicable in Panama as a right of constitutional
hierarchy, which led to the declaration of unconstitutionality of acts and of a law that
violated directly the provisions of the Convention. Later, in a judgment of November