Cablegate: Supreme Court Appointees: Panama in Mourning for Justice

Published: Tue 29 Dec 2009 02:06 PM
DE RUEHZP #0907/01 3631407
R 291406Z DEC 09
S E C R E T PANAMA 000907
E.O. 12958: DECL: 2019/12/29
SUBJECT: Supreme Court Appointees: Panama in Mourning for Justice
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
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.
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