Martinelli Ratchets Up Pressure on Attorney General

C O N F I D E N T I A L PANAMA 000029 SIPDIS E.O. 12958: DECL: 2020/01/26 TAGS: PGOV KJUS PINR PM SUBJECT: Martinelli Ratchets Up Pressure on Attorney General REF: 09 PANAMA 765; 09 PANAMA 242; 09 PANAMA 776 CLASSIFIED BY: Gilmour, Charge; REASON: 1.4(B),(D) Summary -------------- 1.(U) With his Supreme Court (CSJ) nominees confirmed, President Martinelli appears intent on ousting Attorney General Ana Matilde Gomez and bringing the Public Ministry under his personal control. Martinelli is after Gomez because of her alleged incompetence and unwillingness to prosecute the opposition Revolutionary Democratic Party (PRD) - most prominently former President Ernesto Perez Balladares aka "El Toro". Stacking the CSJ facilitates Martinelli's pursuit of his (widely-considered corrupt) political enemies in two ways; by enabling the removal of an independent and non-compliant AG, and by ensuring that the court will handle the coming cases in accordance with his desires. Civil society and the press are vocally upset and are publicly protesting the moves against Gomez and the threat to independent democratic institutions in Panama. End Summary. Persecuting the Prosecutor -------------- ¶2. (C) With less than subtle timing, the Martinelli administration moved against Attorney General Ana Matilde Gomez before the dust had settled over the appointment of two new CSJ justices and election of the court president. The day after new CSJ president Anibal Salas assumed his post, Panama's Solicitor General filed a request with the court to remove Gomez, which requires the concurrence of a majority of justices. Brand-new Justice and Martinelli appointee Jose Almengor, who formerly worked for Gomez as a prosecutor, was named to oversee the case. Almengor joined Martinelli's staff in May 2009 after AG Gomez opened an investigation against him two months earlier for allowing an accused money launderer to leave the country (Ref A). The launderer was connected with David Murcia Guzman, who is currently standing trial in the U.S. Since then, there have been allegations that Murcia made large campaign donations to both PRD candidate Balbina Herrera and Martinelli during last year's presidential election (Ref B) - allegations that caused Gomez to request that both candidates' immunity be suspended so that she could investigate . Justice Almengor later recused himself after a request from Gomez's lawyers and pressure in the media over his conflict of interest in the case. Ex Post Facto Case Number One -------------- ¶3. (C) The case against Gomez concerns charges that she ordered an unauthorized wiretap on her one of her former drug prosecutors, Arquimedes Saez, who was suspected of extortion and bribery. Saez was eventually fired by Gomez in 2005. The allegation against Gomez is "abuse of power", which is not a criminal act and thus is not legal grounds for the CSJ to remove her from her position. Additionally, her wiretapping of Saez, although not within the Attorney General's authority under current Panamanian law, was legal at the time that she ordered it carried out. (Ref C) ¶4. (C) Juan Antonio Tejada, Gomez's defense attorney, who is both a former prosecutor and ombudsman, said to Polcouns that he had assumed Gomez's legal defense, but that it is a political, not a legal, case. According to Tejada, the writing is on the wall and she will be removed. Technically, the CSJ cannot remove her on an abuse of powers charge, but they will do it anyway. The best that her defense team can do is buy time for the next issue to be worked out: who will succeed her. Here Panama's constitution contradicts itself. One section says she names her successor herself, which is the reason she moved her preferred successor Rigoberto Gonzalez from her defense team back to his old Secretary General's job at the Public Ministry and hired Tejada. Another part of the constitution says the President would get to name a new AG. Civil society groups are opposed to this course of action, as it would give Martinelli control over the last remaining independent institution in the government. Bull Baiting -------------- ¶5. (C) Martinelli has made no secret of his dissatisfaction with Gomez over her tepid efforts to prosecute Perez Balladares. Perez Balladares began appearing in the press in August 2009 after Martinelli publicly cancelled the gambling concessions of several slot-machine operators, which had been granted during the Perez Balladares administration. It appears that Perez Balladares was receiving a steady stream of income from these casinos at the time that Martinelli moved against him. A torrent of stories in leading daily La Prensa has since followed, including a full page spread of cashed checks from the casinos signed by Perez Balladares. Post has been informed by the editor of La Prensa that the person supplying the information is none other than President Martinelli himself. ¶6. (C) The hunt for Perez Balladares boiled over in late December, when he was subpoenaed to appear before prosecutors - the first time that a former President has been required to do so in Panama. In a four-day manhunt, as avidly watched in Panama as the LAPD pursuit of OJ Simpson, Perez Balladares at first could not be located by authorities. When he did turn himself in, it was in on his terms, as he showed up at the prosecutor's office with his wife in a fancy car driven by his nephew, and stayed for only 20 minutes before invoking his constitutional rights against incriminating himself. Martinelli then went on national TV, saying he felt "frustrated and made fun of". In the same breath, he felt compelled to add that "he respects the idea of separation of powers" i.e. between the executive and the judiciary. Ex Post Facto Case Number Two -------------- ¶7. (C) At its root, the case against Perez Balladares is flawed. In the years the transfers were made, "money laundering" was only in the criminal code related to narcotrafficking. Therefore, the money laundering charges on casino proceeds won't stand up in court and the government does not have a case. VP/FM Juan Carlos Varela admitted to the Ambassador that Martinelli knows this. According to Tejada, civil society is furious with Martinelli for insisting that this baseless case be pursued. While they want to see Preez Balladares punished for corruption as much as Martinelli does, Panamanian professionals worry that a not-guilty verdict in this case will result in the vindication of Perez Balladares and the legitimization of his ill-gotten wealth. Civil Society and the Civilistas Tread Carefully -------------- -------------- ¶8. (C) The handling of El Toro's arrest appears to have been the last straw for Martinelli, dissolving what had looked like a truce with the AG. A few days after the affair, the Solicitor General presented his case against Gomez to the newly seated CSJ. Civil society reaction has been uniformly negative. The National Council of Private Enterprise (CONEP) and The Fundacion Ethica y Civilismo both took out full page ads in leading dailies decrying the move against Gomez, which Martinelli has publicly claimed to have nothing to do with. One editorial characterized the current situation as the worst constitutional crisis in Panama since a coup attempt in 1990. Poloff attended an Association of Panamanian Executives (APEDE) forum in defense of Gomez, who was formerly their general council. Yet direct criticism of Martinelli was lacking at the three-hour meeting, where speakers tended to focus on the technical and legal merits of the case against Gomez vice the animus behind it. ¶9. (C) The subdued reaction, particularly from the important APEDE business association, is partly due to the nature of the governing coalition which Martinelli controls. Many former "civilistas" who previously led the charge against an abusive executive power during the military dictatorship are now supportive of the anti-PRD governing coalition and appear reluctant to publicly criticize their leader, though privately they express grave concerns. The main opposition party (the PRD) remains in disarray amidst infighting and a serious diminution of their numbers. Martinelli still enjoys unprecedented popularity and has the ability and willingness to inflict serious harm on any critics who become too vocal. According to conversations Polcouns has had with civil society groups, Martinelli feels that he does not need the civilista groups as a bridge to the people - he talks to the people directly, and as long as his poll numbers stay up, he sees no reason to change his modus operandi. Civil opposition may also be thrown off-balance by Martinelli's impulsive actions and passive-aggressive tactics, which have him in one speech admonishing prosecutors "not to be intimidated by those who appointed them", and in another implying that El Toro was handled too gently by the AG during his subpoena process . He also countered the full-page ads with a GOP communiquC) claiming that his administration was acting in the interests of the majority of Panamanians against obscure interests while at the same time denying any influence in the Attorney General's case. Comment -------------- ¶10. (C) Comment: The blunt timing of the action against Gomez is confirmation of Martinelli's orchestration of the campaign against the Attorney General, despite earlier indications that he had reached an accommodation with her. The common perception, as illustrated in the political cartoon that appeared January 7 and is attached below, is that Martinelli now controls the Supreme Court, the Comptroller's office, and the National Assembly. Panamanian chief executives have traditionally used CSJ nominations to control the institution. However, the unfortunate conjunction of the court appointments and his pursuit of the Attorney General AG contradict the raison d'etre for his presidency - a change from corrupt business as usual governance to a more accountable and legitimate rule. The risk is that Panamanians may loose faith in their democracy as the name of Martinelli's "Democratic Change" party takes on an unintended and ironic meaning among the public. Why is the outcry greater against Martinelli than previous presidents? First , other executives used party apparatus to control government institutions. Martinelli is not from a traditional party and doesn't have a structure that can work behind the scenes and legitimate his actions. Therefore, he is acting much more directly by placing people he personally can trust and control in key positions. Secondly, he has raised expectations of change, and is disappointing those who believed in him very early in his presidency vice previous leaders who did so much more gradually. Why does it matter? Panama has always squeaked by on mediocre institutions. But mediocrity cannot withstand the rapid rise of violent crime related to narcotrafficking. The security situation is at a tipping point. Civil society professionals sense the urgency of the security problem and there is a greater demand than ever before for democratic institutions that work. cid:image002.png@01CA9EA4.F3A2AC30 GILMOUR