Mundane business, but the trial judge breathes fire and makes a radical motion

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Judge Rowe
Judge Ana Zita Rowe is not just a civil circuit trial judge. For many years she has also been a professor for other judges at the Supreme Court’s Judicial School. Archive photo by the Supreme Court.

Judge Rowe’s caustic retort, summary slapdown and petition to the high court

by Eric Jackson

Judge Ana Zita Rowe López is not known as a radical, nor as a publicity seeker. Her reputation is as a by-the-book judge on a low run of the judiciary, who, however, may well have written the book.

Hers was the lot to have been assigned a civil lawsuit brought by former president Ricardo Martinelli Berrocal. He’s suing former attorney general Kenia Porcell for damages over various alleged abuses with respect to criminal cases that are still mostly pending against the ex-president on appeal.

It seems that the very wealthy Ricky is suing everybody. In this case, in addition to Porcell, two former high court magistrates, two forensic examiners for the Public Ministry, an anti-corruption prosecutor, and a former foreign minister / vice president of Panama. In other cases he’s suing various news media and other current or former public officials.

As Panamanian law allows in civil proceedings, a plaintiff rich enough to post a bond can pending trial sequester the assets of a defendant, throwing it out of business or him or her onto the streets with no resources. if it or she or he is that much poorer. And so Martinelli, via one member of this many phalanxes of lawyers, Alfredo Vallarino, moved to investigate and freeze Porcell’s assets.

Pretrial sequestration is an act of bullying that tends to quickly resolve many cases without regard to the facts of the case. Get a court order to take over a business and start trashing, unless or until the owner of that business submits is the name of the game. But here, it’s the law.

There are a few more restrictions on sequestering a natural person. The plaintiff cannot, for example, bind and gag the defendant and stuff her in the trunk of a car until she settles the case on the plaintiff’s terms. But liens can be put on houses, bank accounts frozen, valuable movable assets taken from the home or office.

Porcell saw the move coming, and began to transfer assets. It happens often enough, but transfers in anticipation of litigation are generally looked upon as fraudulent by judges who are honest about it.

So Martinelli’s lawyers made their application, Judge Rowe saw that in form it appeared to be proper and she signed the order. Were everything properly presented to her, it would be judicial misconduct for her not to sign the sequestration order. 

On July 9 court officers and police, with Martinelli attorney Alfredo Vallarino Alfredo Vallarino, showed up at Porcell’s house in Brisas de Golf for interrogation and investigation of assets. A lien was put on the house, bank accounts were frozen. Porcell went ballistic to reporters, alleging bad faith and misconduct by the judge. Later, a bond was posted, but the judge rejected that as based on largely illusory collateral. Eventually Porcell did post a bond to loosen Martinelli’s grip on her property.

Then, on July 31, Judge Rowe made an unusual set of moves, in a 44-page decision and a twopage summary for public consumption. At first glance, Porcell got the worst of it. Rowe called the former attorney general dishonest in her dealings with assets Martinelli was trying to freeze and with her bond. The judge took particular umbrage at Porcell’s allegations of bias and impropriety, and expressed great annoyance at her court officers’ serving of a warrant being cast in terms of something akin to a home invasion robbery.

Glance down to the bottom line, though. Martinelli lost.

Rowe found that as the case arose from actions taken by public officials under color of their duties, the case belongs before the administrative bench of the Supreme Court, not her civil section of Panama’s first judicial circuit. Case dismissed for lack of jurisdiction, sequestration order lifted, file transferred to the high court, the bond transferred to a special judicial office that deals with such things.

A fairly conservative and minimalist way to deal with Ricky Martinelli’s notorious abuses. But wasn’t all of it.

If Rowe had a lot of choice words in response to Porcell’s many words about Rowe, the judge’s observation as to Martinelli was brief and blunt. Looking at his entire course of conduct, she accused Martinelli of using the legal system “to threaten or obtain ends other than justice.” 

Porcell making public accusations that Rowe had committed crimes against her was also cited as a undue threat to the court.

So Rowe petitioned the full plenum of the Supreme Court for an “amparo a la independencia judicial.” Literally it’s a motion for protection of judicial independence. That is, that she should not have to work under threats and vilification. Rowe suggests what in the Common Law system would be characterized as trial judges’ summary powers of contempt. In her opinion Rowe cited not only statutory and constitutional law in her petition to the high court, but principles of international law with regard to judicial independence.

The petition is open-ended at a glance. Is it inclusive enough to have the court look at the entire Martinelli operation in many cases? Will the Supreme Court, on its own motion, fashion a set of general remedies for when powerful criminals attempt to use their wealth to overpower justice in the courts? Will it fashion specific remedies for some of the abuses that we have been seeing for years? Judge Rowe’s petition for judicial independence looks to be that broad, and is directed at the plenum of the high court rather than the legislative and executive branches of government. Some major reforms of the legal system may be on the docket if the magistrates decide to go in that direction.

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