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IUSTITIA et PULCHRI= TUDO (ISSN 1= 607-4319)
Vol. 02, No. 02, Julio - D= iciembre 2021
pp. 10 =E2= =80=93 15 <= /span>
________________________________________________________________________= _____________
Legislative Malapportionment and Dis= proportionality:
reforms to improve Panama=E2= =80=99s democratic governance=EA=A2=80
= Hugo Wood N=C3=BA=C3=B1ez=EA=A2=81
*Autor para Correspondencia. E-mail: hugowood06@gmail.com
Recibido: 30 de junio de 2021
Aceptado: 15 de julio de 2021
____________________________________________= __________________________________
Resumen: La realidad electoral de la Rep=C3=BAblica de Panam=C3=A1 = plantea una inefectiva distribuci=C3=B3n
electoral y desproprorcionalidades electorales. Dichos fen=C3=B3m= enos electorales reflejan distorsiones en
las instituciones democr=C3=A1ticas paname=C3=B1as. Por ejemplo,= la Asamblea Nacional de Panam=C3=A1, donde el
sistema de elecci=C3=B3n de diputados no cumple con una rep= resentatividad real de los ciudadanos
paname=C3=B1os. En el presente ensayo, el autor desarrolla los con= ceptos de mala distribuci=C3=B3n y
desproporcionalidad electorales con los resultados de las Elecciones Ge= nerales de Panam=C3=A1 del a=C3=B1o
2019. A su vez, plantea la posibilidad de aumentar el tama=C3=B1o de l= os distritos electorales para resolver
estas distorsiones del sistema electoral paname=C3=B1o. =
p>
Palabras clave: Mala distribuci=C3=B3n e= lectoral, desproporcionalidad, sistemas electorales, distritos
<= p class=3D"stl01" style=3D"line-height:12pt">electorales, representaci=C3=B3n democr=C3= =A1tica, gobierno democr=C3=A1tico.Abstract: Panama=E2=80=99s electoral reality demonstrates legislative m= alapportionment and electoral
d= isproportionality. Those distortions are reflected in Panamanian democratic= institutions. For
instance, th= e current composition of Panama=E2=80=99s Legislature does not comply with = the st= andards of
citizen representati= on. In this article, the author discusses the ideas of malapportionment and= = ;
disproportionality within the = Panamanian Electoral System in light of the results of 2019 General = =
Elections. The author also recommends = increasing the magnitude and scope of electoral districts.
Keywords: Malapportionment, disproportionality, = electoral systems, electoral districts, democratic
representation, democratic governance.
=EA=A2=80
Ensayo presentado como parte del curso =E2= =80=9CDemocracy and Development in Latin America=E2=80=9D en la Maestr=C3= =ADa en Pol=C3=ADtica
P=C3=BAblicas de the London School of Economics an= d Political Sciences.
=EA=A2=81
Licenciado en Derecho y Ciencias Pol=C3=ADticas (Universidad S= anta Mar=C3=ADa La Antigua, Magna C= um Laude); Maestr=C3=ADa en
Derecho y Desarrollo Internacional= (Tulane University Law School); Maestr=C3=ADa en Estudios Globales e Inter= nacionales
(Tsinghua University in Beijing, Schwarzman Sc= holar); Maestr=C3=ADa en Pol=C3=ADticas P=C3=BAblicas (The London= School of Economics
and Political Science, Chevening Sch= olar); Profesor Adjunto de Derecho, Pol=C3=ADtica y Econom=C3=ADa= de Comportamiento
(Universidad Santa Mar=C3=ADa La Antigua). = xa0;
10
I.
Introduction
In Panama, the legislature is one of the less trusted inst= itutions and is a constant focal point for
controversy. A large criticism resides on the quality of legisl= ators, clientelism and corruption, and the
accurate representation of citizens. This essay will discuss th= e latter factor through the analysis of two
challenges that concern the quality of participation and the f= airness of legislative representation in
Panama: the so-called =E2=80=98malapportionment=E2=80=99 and disproport= ionality. This article will also argue for the
increase of electoral district magnitudes.
Malapportionment refers to the unequal relation= ship that exists between the percentage of citizens
residing in each legislative district and the percenta= ge of elected legislators in it. Malapportionment
translates into distortions in the average number of vot= ers for each legislator among the different
electoral districts that divide the nation. Disproportionality= , as the same word indicates, is the
disproportionality between the part of votes and the part of legislat= ive seats obtained by each party.
Disproportionality leads to the over-representation of some parties and = the under-representation of
oth= ers with respect to its effective electoral weight. Both phenomena are espe= cially problematic for
democrat= ic governance, insofar as they tend to invalidate the fundamental principle= according to
II. Background and context =E2=80=93 Panama=E2=80= =99s Democratic and Legislative Outlook
Panama recovered its democracy in 1989, after 21 years of di= ctatorship rule. Since then, 6 elections
have been held, having one of the highest turnout averages in the= world (74%), and in each one, the
ruling power gave away its mandate to an opposing party. This phenomeno= n has been carried through
peac= eful electoral processes, that highlight the health of its democracy. Howev= er, the country still faces
end=
uring institutional challenges to fairly represent its citizens.
The political class that has been ruling=
since the democratic transition is increasingly questioned by a
disenchanted and critical citizenship th=
at begins to distrust its elected representatives and perceives
corruption as one of the fundamental obs= tacles to the country's development1. Likewise, a growing
number of political and social actors denounc= e a growing inequality in the access and distribution of
the positions of popular election, leaving many p= arties without representation in the National
Assembly. Here arise the malaise and risks of ungovernabilit= y associated with a latent crisis of
traditional parties, political representation and democratic legitima= cy in general.
the reform of the elec= toral system. Duverger argues that electoral systems shape the number of pa= rties =
and therefore the outcom= es of democratic processes2. Without being the panacea, the set of legal= = ;
norms that regulate the transf= ormation of votes into mandates of popular representation exerts a great = span> = span>
influence on the modalities of pa= rtisan competition, the quality of citizen participation, the
1= span>LATINOBAROMETRO,= Informe 2018. Retrieved on February 10, 2020 from <= span class=3D"stl08" style=3D"font-family:'TDBUNP+Garamond'; font-size:10pt= ; color:#0563c1">http://www.latinobarometro.org/lat.jsp.
2 DUVERGER, Maurice (1964): =E2=80=9CPolitical Parties: their = organization and activity in the modern state=E2=80=9D. M= ethuen.
11 = span>
proportionality of political representation a= nd the functioning of the political system in general3. Based
on the referred rationale, this essay argues for a specific reform to = the Panamanian electoral system.
III. The Panamanian Electoral System =E2=80= =93 The Legislature
Panama,= as well as all Latin American countries, has a presidential system, based = on a traditional
<= span class=3D"stl08" style=3D"font-family:'CUCPRQ+Garamond'">majoritarian = =E2=80=98First Past the Post=E2=80=99 model. However, Panama is somehow nov= el on the composition of
the legislat= ure. A unicameral system of 71 seats that are divided between single and mu= lti-member
districts. From the = referred 71 seats, 26 legislators are elected from single-member districts = and the
remaining 45 from multi= -member districts. Seats are allocated through simple majority rule in sing= le- = xa0;
districts and through a pro= portional formula in the multi-member districts. In practice, the reduced <= /span> <= /span>
size of the former imposes very =
high effective barriers that tend to exclude small parties from
legislative representation.
<= p class=3D"stl01" style=3D"line-height:12pt">Based on the referred electoral rules, hist= orically, the legislative representation in Panama has beencharacterized by high and persistent dispropor= tionality, as a result of a hybrid electoral system with a
marked majority bias4. Although this progres= sively decreased due to an increasing concentration of
the vote and the party system during the last fif= teen years, Panama is still amongst the highest electoral
malapportionment and disproportionality rated co= untries in Latin America and the Caribbean.
IV. Analysis and evidence =E2=80=93 Effects of Malappor= tionment and Disproportionality in
Democracy
1. Malapportionment
Acc= ording to Lijhpart, malapportionment happens when =E2=80=9Cthe districts h= ave substantially unequal voting
populations where malapportioned multimember districts have= magnitudes that are no commensurate with their voting
=populations=E2= =80=9D5. He argues that it is especially hard to avoid the malapportionm= ent issue in plurality
systems = with single-member districts, such as Panama, because equal apportionment r= equires that
relatively many sm= all districts be drawn with exactly equal electorates. He proposes that
malapportionment is eliminated whe= n elections are conducted with a nationwide upper tier as in
Germany and Sweden.
The underlying problem of the referred distortions is based on= the rules governing the district=E2=80=99s design.
Unlike what usually happens in most contemporary repre= sentative democracies, the territorial basis of
the legislative districts in Panama does not reside, nor i= n a national constituency (in which only the
president of the republic is elected), nor in the ten provinc= es and five indigenous regions, not even in
the 679 sub-districts that make up the national territory toda= y. This base relies, in an unusual way, on
3 L
Press.
4
PANAM=
A=E2=80=99S E
https://www.tribunal-electoral.gob.pa/ev= entos-electorales/elecciones-generales-1994-2019/.
5 LIJH= PART (2012).
12
the geographical boundaries of the 81 districts (in which the = mayors are elected), whose demographic
heterogeneity considerably restricts the room for maneuver, there= by distorting representation in the
National Assembly.
A case = to illustrate this contrasting phenomenon can be found in the 2019 election= s, when Juan
Vasquez, a Legisla= tor from San Miguelito, one of the largest districts, had to obtain ten tim= es the votes
than Petita Ayarza= , a legislator from Guna Yala, one of the smallest. Vasquez obtained 33,393= votes
from a multi-member dist= rict of 243,978 voters and Ayarza obtained 3,725 votes from a single-
member district of 10,141 voters6= . It is clear that votes in one district have more impact, thus resulting <= /span> <= /span>
in malapportionment. This contra= st is prevalent all over the country and is disrupting the natural <= span class=3D"stl08" style=3D"font-family:'TDBUNP+Garamond'"> <= /p>
representation that the electoral syste= m should provide.
= 2. Dispr= oportionality
There is a c= lose relationship between electoral systems and party systems that depends,= fundamentally,
on the level of=
proportionality of the former, which determines its restrictive effects on=
the latter. As
highlighted by =
the influential work of Taagepara and Shugart, the magnitude of the distric=
ts constitutes
effect=
s also depend on the number of seats assigned in each constituency=
7.
In Panama, disproportionality has =
tended to benefit the first, second and third political forces,
marginalizing or excluding most of the o= ther parties of the National Assembly. The narrow and limited
territorial link that currently characterize= s legislative representation in Panama not only has advantages
<= p class=3D"stl01" style=3D"line-height:12pt">for specific legislators but can also becom= e a constraint for newcomers.T= his also contributes to the strengthening and consolidation of traditional = parties. If the seats where
mor= e proportional, legislators' careers would no longer depend only on their a= bility to solve specific
proble= ms in their respective districts (specifically in single-member districts),= but also on their ability
to a= dd demands and represent interests at a broader level, to inspect the execu= tive and to legislate. All
acti= ons that, as reflected by different surveys, are not being perceived by the= majority of the
<= span class=3D"stl08" style=3D"font-family:'TDBUNP+Garamond'">population8 and are central for democratic governance.
3. Effect on the =E2=80=98Effective=E2=80=99 Number of Par= ties
In Latin America, the= presidency is the biggest political prize to be won and because only large= parties
have a chance to win i= t, these said parties have a considerable advantage over smaller ones, whic= h, in =
6 PANAMA=E2=80=99S = span>ELECOTRAL <= /span>TRIBUNAL Officia= l Results of 2019 General Elections.
<= p class=3D"stl01" style=3D"line-height:10pt">7 TAAGE= PARA, Rein and SHUGART, Matthew (198= 9): =E2=80=9CDesigning electoral systems=E2=80=9D. Univers= ity of California Irvine. Retrievedon February 12, 2020 from: https:/= /escholarship.org/content/qt28t10044/qt28t10044.pdf.
8 = LATINOBAROMETRO,= Informe 2018. Retrieved on February 10, 2020 from <= span class=3D"stl08" style=3D"font-family:'TDBUNP+Garamond'; font-size:10pt= ; color:#0563c1">http://www.latinobarometro.org/lat.jsp.
13
<= span class=3D"stl08" style=3D"font-family:'TDBUNP+Garamond'">consequence, h= as an effect on legislative elections. This tendency is especially strong w= hen the
presidential election i= s decided by plurality instead of majority runoff9, as is the case of Pa= nama. =
To have a legislature th= at truly represents voters and not the strength of a presidential candidate= is = xa0;
vital for its legitimacy an= d for democracy. In Panama, since 1989 just 3 parties have won the <= span class=3D"stl08" style=3D"font-family:'TDBUNP+Garamond'"> <= /p>
presidency, and naturally have supporte= d the existing disproportionality. In consequence, the
majorities in the legislature have come from thos= e parties, and predominantly from 2 main parties
(PRD and Panamenista), just with the exception in 2009 of= Cambio Democratico, which through an
alliance with the Panamenista Party won the election and had a maj= ority in the legislature.
Sever= al parties have failed to survive in the legislature due to the lack of a s= trong presidential candidate.
T= he number of effective parties illustrates this. Panama currently has 7 pol= itical parties registered and
2= in the formation process. In contrast, based on the Laasko theory to deter= mine the number of parties
that= effectively hold power10, considering the number of seats they receive,= the country just has 3.68
effe= ctive parties. This number illustrates the current inequality between the 3 larges= t parties and the
= rest. That is= just unfair competition, which is perpetuated by the current district magn= itude framework.
<= span class=3D"stl08" style=3D"font-family:'CCVDTT+Garamond-Bold'">V. Recomm= endation =E2=80=93 Increase district magnitude
Panama has the lowest district magnitude average i= n Latin America11. This is creating
malapportionment and disproportionality. A proposal to tackle the= se challenges is a nationwide district
magnitude increase.
T= he proposal argues for the election of the 71 legislators through 15 multi-= member districts divided
betwee= n the 10 provinces and the 5 indigenous regions of the country and the elim= ination of single-
member distr= icts. This electoral reform will entail that districts would go from the cu= rrent average of
<= span class=3D"stl08" style=3D"font-family:'TDBUNP+Garamond'">56,000 voters = per legislative district to an average of 200,000.
Malapportionment would be significantly reduced as the = unequal relationship between the percentage
of citizens residing in each legislative district and the perc= entage of elected legislators in it will be more
equal between the different districts. This would entail = the decrease of distortions in the average
number of voters for each legislator among the different distri= cts that divide the national territory,
such as the one described between San Miguelito and Guna Yala. Ad= ditionally, disproportionality
= would decline substantially as a fair proportion between votes and the legi= slative seats obtained by
each = party will be achieved contrasting the current context that is leading towa= rds the over-
electoral weight. This = approach would produce more balanced effects on legislative representation,= = ;
the party system and the legit= imacy of the political system.
9
SHUGART, Matthew and C= , John (1992): =E2=80=9CPresidents and Assemblies= : Constitutional Design and Electoral
Dynamics=E2=80=9D. .
10 LAAKSO, Markku; and= TAGGAPERA, Rein (1979): =E2=80=9CThe =E2=80= =9CEffective=E2=80=9D Number of Parties: =E2=80=9CA Measure with Applicatio= n to
West Europe=E2=80=9D.
11
PANAMA=E2=80=99=
S ELECOTR=
AL TRIBUNAL Official Results of 2019 Ge=
neral Elections. Retrieved on February 13, 2020 from:
https://www.tribunal-electoral.gob.pa/eventos-electorales/elecciones= -generales-1994-2019/.
14
The increase in the magnitude of the districts would bring the= legislators closer to the general interests
of the nation, without cutting them off from their constituen= ts and extending, in passing, the
autonomy, functions, and level of responsibilities of the members of the= National Assembly. But
above a= ll, the legislators would stop representing mainly localist interests relat= ed to the particular
concerns a= nd demands of their small constituencies and would also have incentives to = reduce the
extension of cliente= lism and represent more general interests related to the problems of the pr= ovinces,
the regions and the na= tion. =
From the perspective of = the electorate, candidates for the legislature would be recruited on a more= = ;
diverse and broader sociodemog= raphic basis, which would have a positive impact on the
competitiveness of their selection, and on the av= erage level of their training, preparation and personal
experience. These enhancements will directly tack= le the ongoing criticism towards the quality of
legislators, the party system and will improve the governa= nce framework.
Critique - Increase on electoral campaign costs
A criticism that this policy could = have is that it would have a negative impact on the cost of electoral
campaigns, excluding fewer wealthy c= andidates from the races. However, the increase in electoral
spending is due to factors beyond the demogra= phic size of the districts, such as allowing private
funding in campaigns or the period of elections, so i= t can be effectively limited by specific reforms on
financing and campaign ceilings.
15