The Forgotten Origins of Constitutional Review in Panama: A Defense of the 1904 Constitution Los orígenes olvidados del control de constitucionalidad en Panamá: Una apología de la constitución de 1904

Abstract

This article examines the historical development of constitutional review during the period in which Panama’s 1904 Constitution was in effect. It argues and provides evidence that the 1904 Constitution implicitly recognized in its text the power of constitutional review within the Judicial Branch, but that this power proved ineffective due to fundamentalist and self‑restraining positions taken by the Supreme Court when given the opportunity to invoke and exercise it. Through an analysis of the Estenoz case of 1924 and the Hartford case of 1933, the article demonstrates the Judiciary’s reluctance to affirm its power of review, which resulted in an expansion of the powers of the Legislative and Executive Branches. Nevertheless, evidence is provided that in 1940 the Supreme Court—during the final years of the 1904 Constitution—implicitly affirmed and exercised the power of constitutional review. The study concludes that this trajectory shaped the transition to an explicit, centralized, autonomous, and abstract model of constitutional review in 1941. The findings challenge the traditional narrative that attributes the lack of checks on power to the 1904 Constitution and re-evaluate the forgotten role of the Judicial Branch, and more specifically, the Supreme Court, in shaping constitutional review in Panama.