The United States Agency for International Development (USAID) has reassigned aid money previously destined for the Panamanian courts to other, non-governmental legal reform efforts. According to a US Embassy source, this move was made because the aid program --- most of whose funds for this fiscal year have already been spent --- had certain conditions attached that had been agreed when Adán Arnulfo Arjona was the Supreme Court’s presiding magistrate, but after César Pereira Burgos succeeded Arjona he would not agree to those conditions and subsequent negotiations between Pereira and USAID proved fruitless.
The Americans are helping Panama computerize their court docketing, providing hardware, software and training programs to do so. But the US is also interested in procedural reforms that would allow cases without merit to be more easily dismissed and oral testimony in open court rather than time-consuming pretrial prosecutorial interrogations with the subsequent reading of non-verbatim transcripts at trial. Pereira, according the embassy source, has “philosophical” objections to the latter suggestions, which he considers to be an attempt to impose the Anglo-American Common Law system on Panamanian justice.
However, what’s happening is more than just an argument over guidelines, procedures and philosophies between one US agency and the president of Panama’s high court.
According to law professor and radio talk show host Miguel Antonio Bernal, there is a combined effort by the various international aid donors to Panama courts --- including the European Union (EU) and the United Nations Development Program (UNDP) --- to apply economic pressure against this country’s court system. The causes, according to Bernal, are multiple and complex, including intra-judicial and intra-governmental power struggles and the Panamanian judiciary’s sordid reputation for corruption. However, Bernal alleged, the last straw appears to have been an attempt by Foreign Minister Harmodio Arias Cerjak to appoint a Mireyista to take charge of all foreign aid coming to the Panamanian courts, notwithstanding that faction’s severe defeat in the recent elections.
La Prensa reports that Spain’s AECI aid agency is also reviewing its judicial assistance programs for Panama.
As this issue was uploaded neither the EU nor the UNDP had responded to this paper’s questions on the subject. However, our American Embassy source confirmed that there have been consultations on the matter among the various foreign donors, and other sources indicate that while the UN and the Europeans have not notified the courts here of any formal actions nor made any public statements, they, too, are reviewing their aid programs and are not now disbursing funds that are in the pipeline for the Panamanian courts. As is the case with US assistance, the EU and the UNDP have already spent most of the money they had earmarked for this country’s justice system.
Overlaying all of this is a great uncertainty about the future of the Panamanian Supreme Court. Without any changes, the 5-4 majority of Mireya Moscoso’s appointees would hold throughout the term of the upcoming Torrijos administration. However, the PRD will have an absolute majority in the next legislature, and if they can get the Solidaridad deputies to vote with them, they might muster the super-majority needed to remove magistrates by impeachment. With just the simple majority, the PRD could pack the court by increasing the number of its magistrates and thus override the Mireyistas in that fashion.
The most obvious impeachments would be of magistrates Winston Spadafora and Alberto Cigarruista, whose nominations the PRD maintains were procured by the bribery of erstwhile PRD legislator Carlos Afú. However, if just those two were removed they would be replaced by their suplentes, Moscoso appointees who gained their positions in the same controversial votes, and thus the court would remain under Mireyista control.
The court-packing ploy was tried once before by the PRD, in the lame duck session of 1999 during the transition from the Ernesto Pérez Balladares to the Mireya Moscoso presidencies. However, as soon as the new legislature took office it repealed the legislation that created Toro’s “Fifth Bench.” The matter never went before the high court. If the new president and PRD majority in the assembly legislate to pack the court once they take office in September, the current Mireyista majority might then strike down that legislation, which could precipitate a constitutional crisis.
In any power struggle, the high court would not be able to count upon world opinion or domestic public opinion for backing. If Guillermo Endara had his way with the Supreme Court, the runner-up in the presidential election said he’d “send them home.” Although he said he wasn’t privy to the US aid cut decision, Endara characterized the current court as “politicized,” called it a political patronage “wastebasket” and accused it of selling judgments. “The judiciary is totally corrupt,” he concluded.
In most countries, and from time to time in Panamanian history, that sort of talk is the stuff for which contempt citations are handed down. But in recent years successive leaders of our bar association, the Colegio de Abogados, have made similar declarations.
Bernal called the foreign aid donors’ moves “unfortunate.” On the one hand he is as vehement as Endara and many of his colleagues in the legal profession in his denunciations of judicial corruption, but on the other hand he isn’t enthusiastic about some of the reforms that the US, EU and UN want. Moreover, he thinks that the court may be receiving all of the foreign donors’ wrath for a period of generalized corruption, a blame assessment strategy that he fears might serve as an unacceptable substitute for the more substantial reforms he advocates.
Noteworthy by their silence in this matter have been Martín Torrijos and the PRD in general. But come September they will be calling the shots and the USAID move must also be seen in the context of foreign governments cutting their ties with an outgoing administration and building relationships with its successor.
In June the USAID will announce a new five-year assistance plan for Panama, which will include a judicial assistance component. However, that will not automatically resume the flow of foreign aid to this country’s courts, but only set guidelines and budget limits as a basis for future negotiations.
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