Supreme Court Appointees: Panama in Mourning for Justice

S E C R E T PANAMA 000907 NOFORN SIPDIS E.O. 12958: DECL: 2019/12/29 TAGS: PGOV KJUS PINR PM SNAR SUBJECT: Supreme Court Appointees: Panama in Mourning for Justice REF: PANAMA 756 CLASSIFIED BY: Debra L. Hevia, Political Counselor, State, POL; REASON: 1.4(B),(D) ¶1. (U) Summary: President Ricardo Martinelli and his cabinet's December 16 nomination of Alejandro Moncada Luna and Jose Abel Almengor as the two new Supreme Court justices sparked strong criticism from all major media outlets and from civil society organizations including the bar association and the umbrella group Pro-Justice Alliance (Alianza). The nominees for "substitute" justices were Wilfredo Saenz Fernandez and Zaira Santamaria de Latorraca, and Latorraca also came under fire and was eventually disqualified by the National Assembly. Not only were the nominees deemed to lack the professional integrity needed for the office, but Martinelli was harshly criticized for not following the credentialing commission process he himself had established. Assessing Martinelli's decisionmaking performance and style, most mainstream media and civil society groups asserted that the appointments undermined Panama's institution-building process. End summary. The Process -------------- ¶2. (C) Since August, two names circulated as Martinelli's "chosen ones" for the court: Gerardo Solis, a former member of the oppposition Revolutionary Democratic Party (PRD) and current magistrate on the electoral tribunal, and Jose Abel Almengor, a former narcotics prosecutor and currently Martinelli's "security secretary" (ref A). As of October, media editorials were calling on the president to hold true to his campaign promise of changing Panama's judicial legacy of corruption and cronyism, and to appoint non-political magistrates with outstanding records of service. In response, Martinelli established a credentialing commission to examine the qualifications of applicants for the job, and more than 80 judges and lawyers submitted documentation. The credentialing commission found that 71 of them met the requirements to become a Supreme Court magistrate. Almengor and Solis were on the list, but Moncada was not. ¶3. (C) Martinelli was expected to suggest two names from the list on December 7, and it was assumed his cabinet would rubber-stamp his nominations. However, the coalition Panamenista party of Vice President/Foreign Minister Juan Carlos Varela objected so strenuously to Solis that the cabinet was deadlocked. Martinelli and Varela then began to suggest in the media that they would need to look for an alternative, as no one on the list approved by the credentialing commission was adequate. Civic society groups and media protested that Martinelli was making a mockery of the process he had established to make the nomination process more transparent and apolitical, and publicly urged him to choose one of the 71. Although that list did contain questionable names, there were also lawyers and judges with solid records and good reputations. At a dinner hosted by Martinelli for visiting CODEL Boehner on December 13, when polcouns mentioned the historic opportunity the government had to reform the court (Martinelli will name five of the nine justices during his five-year term),Varela answered that the best lawyers in the country refused to take a job on the Supreme Court. Trade Minister Henriquez of Martinelli's Democratic Change (CD) party told polcouns, "Solis is out. Almengor...well, we can't make everyone happy." ¶4. (SBU) During the following days, Jimmy Papadimitriu rushed to assemble all the documentation required for Moncada's application, and Moncada and Almengor told friends and colleagues that they were to be the new supreme court magistrates. On December 16, Presidential spokesperson Judy Meana announced the nominations of Alemengor, Moncada, Saenz and Latorraca. Appointees Deemed Not Up to Task -------------- ¶5. (U) All major dailies and many influential television talk shows questioned Moncada and Almengor's integrity to serve as Supreme Court justices. o The leading daily La Prensa called the candidates "not fit for the job," and every day from December 17 through 22 ran a dramatic front-page black banner that read "in mourning for justice." The daily reminded readers that Moncada was an advisor to the minister of government and justice under the military regime at a time that ministry was censoring the press. During the Perez Balladares administration, Moncada served as director of the investigative police (PTJ). However, in 2000 the supreme court authorized then-Prosecutor General Sossa to dismiss Moncada for offenses of "judicial ethics." Moncada remained a member of the PRD until January 2009, when he switched to CD and campaigned for Martinelli. Moncada's wife works in the first lady's office. ¶6. (C) Almengor spent most of his career in the public prosecutor's office, becoming chief narcotics prosecutor in 2005, a position in which he is widely viewed to have been ineffective. For example, he led the 2007 investigation on money laundering charges in the so-called "Patriot Law" case, and all of the suspects were cleared of any charges. In March 2009, Attorney General Ana Matilde Gomez opened an investigation against Almengor for allowing another suspected money launderer to flee the country. In May 2009, Almengor resigned from the prosecutor's office and began working as a Martinelli advisor, becoming Secretary of Security in the Presidency in July. (Comment: This is a job with a title but no apparent portfolio. Minister of the Presidency Demetrio "Jimmy" Papadimitriu told the Ambassador in September that Almengor was not handling counter-narcotics or crime-related security issues, but was "doing other things.") Almengor's nomination also met resistance from civil society because the Panamanian constitution bans anyone who holds an office with nation-wide jurisdiction from moving to the supreme court, to prevent past practices of naming sitting ministers to the court. Many argued that as the president's security secretary, Almengor had national jurisdiction and was therefore ineligible. ¶7. (S/NF) Substitute (suplente) magistrates are important, as they are often called in to make the most controversial (and often egregious) decisions as the main justices conveniently step aside (for example via foreign travel) to avoid sullying their names. Wilfredo Saenz Fernandez, who will serve as Almengor's substitute, had a long judicial career with decisions in many high-profile cases. He was the least controversial nominee. On the other hand, Zaira de Latorraca caused the most controversy of all. She took a leave of absence from the judiciary effective August 1, 2009 to work with Salomon Shamah in the Panamanian Tourism Authority. (Comment: Shamah has cabinet rank and also has connections to known drug traffickers.) She did not submit an application for a supreme court position, but was proposed and championed by Shamah. On December 15, one day before the official announcement of nominees, Latorraca requested that her leave of absence be revoked, and she was reinstated in her former job as national director for common judicial services, thereby fulfilling the requirement that nominees for magistrate be active functionaries of the judicial branch. Most notably, when her underage daughter in 2003 killed a two year old child and maimed its mother in a hit-and-run accident, Latorraca first tried to cover up the accident and then arranged to have her daughter absolved. ¶8. (U) Assessing the overall negative media coverage, Juan Carlos Tapia, who hosts Panama's most popular television talk show, rhetorically asked viewers, "When you consider the six newspapers and the 12 or 14 television newscasts in the country, who is wrong? The president or the media?" Most mainstream media agued that, by choosing candidates politically close to him, Martinelli wa undermining the nation's institution-building efforts and fueling negative public perceptions of the decisionmaking process in Panama. La Prensa pointed out that Martinelli's promise of appointing two jurists with an impeccable career "did not stand the first test," revealing his particular style of appointing only close and staunch allies to key positions. Martinelli likely "does not believe in or even understand the healthy separation of powers," and the way he carried out the appointment process may set back the efforts of strengthening institutions by a decade, the daily concluded. o La Estrella said it was "regrettable" that Martinelli made up his mind about the final choice beforehand, thereby feeding negative public perception of the decisionmaking process and of the candidates. The center-right, pro-business daily El Panama America expressed similar views. Taking a closer look at Martinelli's decisionmaking style and his pre-election pledge that he would do things differently from his predecessors, talk show host Tapia asserted that "the corruption of the system is devouring the candidate [Martinelli]." ¶9. (U) The president of Transparency International's Panama chapter stressed that the appointments presented an "evident conflict of interest" for Martinelli, a view echoed by the Pro-Justice Alliance, whose spokesperson Magaly Castillo added that a constitutional reform regulating Supreme Court appointments is now clearly needed. Martinelli responded by facetiously promising to nominate Castillo as a supreme court magistrate, saying it is easy to criticize from the comfort of a private office, and he didn't see any of the critics volunteering for public service. Moncada and Almengor defended themselves in the media, with Almengor stating that he was offended by the negative public reaction, and both insisting they should be given a chance and only be judged on their performance as justices. Negative comments from readers of newspapers' online editions were higher than average and mirrored the media's criticism for Martinelli's appointments. The National Assembly as the Last Hope -------------- -------------- ¶10. (C) Public and media pressure shifted to the National Assembly, which ratifies presidential nominations. Editorials urged the deputies "to do the right thing" for the judicial institutions by refusing to ratify political cronies. The Credentials Committee held hearings on December 21 and 22 and accepted written observations on the candidates as well. It received at least 30 objections to specific candidates from civil society groups and private citizens. However, privately legislators had been telling us since August that the governing coalition majority would approve whomever was nominated by Martinelli. As expected, the National Assembly rubber-stamped the nominations of Moncada, Almengor, and Saenz on December 23. On December 24th La Prensa's black banner "in mourning for justice" reappeared, and has been running every day since (currently through December 29). The National Assembly's Credentials Committee did buckle to public pressure and rejected Latorraca as unqualified. On December 24th, the Presidency announced that it would nominate university professor and current labor court judge Abel Zamorano as Moncada's substitute. Zamorano was on the list of 71 original candidates, and he also vied for a position on the supreme court in 2005 and 2007. His nomination must still be approved by the cabinet and ratified in the National Assembly special session which runs through December 31, but is expected to be non-controversial despite allegations of several instances of driving while intoxicated. All the new magistrates will be sworn in on January 4, 2010. Comment: It's Payback Time -------------- ¶11. (C) It was an incredible act of bravado by Martinelli and his cabinet to resist the tremendous media and societal pressure over this issue for months on end. Martinelli simply does not care about public opinion on his court appointments. As he told the Ambassador December 13, "I am going to crush the PRD." Political analyst and Martinelli advisor Jose Blandon Sr. further elaborated for polcouns December 21 that Martinelli was determined to disable or if possible eliminate his political opposition, and planned to take down the PRD one man at a time. He therefore chose justices loyal to him that would not likely be bought off by PRD leaders as their corruption cases work their way through appeals to the supreme court. Recent arrests of two more PRD insiders on corruption charges in the past weeks (former education minister Salvador Rodriguez and former municipal engineer Jaime Salas),and an apparent truce with Attorney General Ana Matilde Gomez as her office pursues corruption cases against more PRD members including former president Ernesto Perez Balladares, indicate this plan is marching forward. While no one questions the need to prosecute corruption cases, Martinelli's alleged motivation for doing so (to eliminate a democratic opposition party) is indeed a setback for Panama's institutionality. ¶12. (U) Open Source Center Panama contributed to this report. STEPHENSON