On October 13 Martín Torrijos and his Cabinet Council passed a resolution to declare a vacancy on the Supreme Court, invoking the “Faúndes Law” that requires most public officials to retire at age 75 against the high court’s presiding magistrate, César Pereira Burgos. The president acted, oddly enough, in response to a petition by Comptroller General Alvin Weeden, an Arnulfista who has his problems with Pereira. Torrijos then appointed a juvenile superior court judge, Esmeralda Arosemena de Troitiño, to replace Pereira. The cabinet then sent the nomination to the Legislative Assembly, where Torrijos can count on a solid PRD majority for ratification.
If it stands, the move would replace the 5-4 majority of Mireya Moscoso appointees on the Supreme Court with a 5-4 majority of Ernesto Pérez Balladares and Martín Torrijos appointees. However, Pereira has vowed to fight and there are two major legal hurdles to surmount in the case.
The first legal issue is whether the legislature and president may by law vary the constitutional qualifications to hold a seat on the high court bench. The constitution does not provide for any age limit for Supreme Court magistrates. The age limit has i a prior court ruling been held inapplicable to university professors in a prior suit, and also does not apply to elected officials. (For example, to President Torrijos’s 78-year-old aunt, Susana Richa de Torrijos, a legislator.)
The law in question was named for one José Manuel Faúndes, a Supreme Court magistrate caught on wiretaps negotiating bribes with defense attorneys to let alleged drug dealers off the hook. However, as only a bare majority rather than a sufficient super-majority of legislators could be persuaded to vote to convict Faúndes in an impeachment trial, the Legislative Assembly during the Pérez Balladares administration passed the law to remove Faúndes that way. After the vote in the legislature, the question of whether the Faúndes Law can be applied to high court judges came before the Supreme Court and it was held that it could not. Faúndes was reinstated with back pay for the time when he was suspended pending the resolutions of his impeachment trial and his challenge to the mandatory retirement age, but resigned for reasons of health a few months later.
Assuming that the courts go against precedent and hold that it is proper to force Pereira out due to the age limit, there is the matter of whether that vacancy should be filled by presidential appointment or by the succession of Pereira’s suplente Mirta Vanegas de Pazmiño, who like Pereira is a Moscoso appointee. It seems that once it is definitively established that there is a vacancy, the president may fill it. But the declaration of a vacancy is being challenged by Pereira, and it would seem that Vanegas de Pazmiño would sit with the eight undisputed Supreme Court magistrates to hear that challenge.
The court is already splitting into factions over the move, and not particularly along partisan lines. Institutional concerns and personal loyalties or animosities may blur party lines. For example, Adan Arnulfo Arjona, a Moscoso appointee and Pereira’s predecessor as presiding magistrate, is known to dislike Pereira.
Two high court magistrates, Arturo Hoyos and Rogelio Fábrega, have announced their support of Pereira’s destitution and urged their colleagues to meet and redistribute the latter’s caseload. However, a meeting that they called only attracted two other magistrates, neither of whom joined in their call for Pereira to go. A note by Hoyos and Fábrega imploring the court’s vice-president, José Troyano, to take the reins of the institution went without response, and three days after the Torrijos administration made its move El Panama America reported that five of the eight remaining high court magistrates were opposed to Troyano stepping in. Moreover, so far Mirta Vanegas de Pazmiño has not moved to take over any of Pereira’s duties.
There is also a usually unstated intimidation factor at work here. The PRD has long claimed that the legislative ratifications of magistrates Winston Spadafora and Alberto Cigarruista, both Moscoso appointees, were obtained through bribery. Some PRD members have suggested that for this reason the two magistrates’ nominations should be rescinded. The problem with removing Spadafora and Cigarruista is that the erstwhile PRD deputy who is accused of taking a bribe, Carlos Afú, has made bribery allegations of his own against a number of his colleagues, in relation with the approval of the controversial CEMIS multimodal transportation facility and industrial park contract. Between Attorney General José Antonio Sossa and majorities of the Supreme Court and the former Legislative Assembly, investigations into the bribery allegations on both sides were quashed based on an expansive interpretation of legislative immunity. There are legislators in both government and opposition caucuses who really don’t want to see the bribery issue raised again. However, they’re not saying this in public and the possibility of a move against Spadafora and Cigarruista might lead these two magistrates to hesitate to come to Pereira’s defense.
For his part, Torrijos is emphasizing that his choice to replace Pereira is a professional jurist who does not come from the world of politics, as did most of Moscoso’s appointees.
Esmeralda Arosemena de Troitiño has served as a juvenile judge for many years, most recently as the presiding magistrate of the Superior Tribunal for Childhood and Adolescence. She is a member of the board of directors of the International Association of Women Judges.
Although the juvenile courts have in general been denigrated by many Panamanians for allegedly being too soft on violent young offenders, Arosemena de Troitiño herself has not been caught up in any big controversies or public scandals. But in Panama it’s hard for the public or the legislator to gauge a judge’s attitudes or records, first because most court records are not open to the public, second because in our system of law appellate decisions are not systematically published and collected as in Common Law jurisdictions, and third because there are fewer outlets for legal scholars to publish their work. With juvenile judges, who work under rules designed to protect the identities of minors who come before them, the lack of information becomes more acute.
With scant information the norm, legislative hearings on Supreme Court nominations are generally pro forma and the debates often partisan and inane.
In Arosemena de Troitiño’s case, however, there is more of record to peruse, as earlier this year she published a “Manual of Good Judicial Practices in the Penal Processes of Adolescents,” a treatise that got into matters of ethics and efficiency as well as the particulars of juvenile law. The manual’s production had the backing of the United Nations Children’s Fund (UNICEF).
The latter international agency was earlier this year deeply involved in the opposition to Mireya Moscoso’s proposals to harden juvenile laws, for example by providing 20-year maximum sentences for minors who commit a wide range of crimes ranging from selling small amounts of marijuana to aggravated homicide. Those proposals were by and large defeated in the previous legislature’s lame duck sessions.
Now, however, Arosemena de Troitiño is at the center of a political storm that has little to do with her ideas, qualifications or record in previous posts.
Former President Guillermo Endara denounced the move to replace Pereira as a “coup d’etat,” and even before the president and cabinet acted law professor Miguel Antonio Bernal characterized the suggestion to apply the Faúndes Law as an attack on the independence of the judiciary. Former Supreme Court magistrate Aura Emérita Guerra de Villalaz criticized Torrijos for acting on the opinion of Administrative Prosecutor Alma Montenegro de Fletcher without waiting for the courts to decide if the Faúndes Law applies to Pereira. The Arnulfista Party also officially denounced the move.
But the usual anti-PRD voices were not unanimous. Weeden, of course, is an Arnulfista who started the ouster by arguing that it would be illegal for him to keep a man over 75 years of age on the government payroll. Former La Prensa publisher I. Roberto Eisenmann, in a column in that paper, acknowledged that he and Pereira both fought against the former dictatorship, blasted the high court’s record and Pereira’s role in its fall to disrepute, noted Arosemena de Troitiño’s good credentials and called upon Pereira to retire for the good of the country.
The PRD, as one might expect, is less divided. Torrijos said he made his decision and will stand by it, but acknowledged that it’s up to the courts to rule on Pereira’s challenge to his action. Former President Pérez Balladares, for his part, opined that Torrijos “had no choice” other than to act as he did.
The declaration of a vacancy on the high court bench may, in the end, be but a preliminary skirmish in an all-out battle for control of the judicial branch. The current constitution is silent about the number of members on the Supreme Court, but the constitutional changes that the previous legislature approved and will shortly be rubber-stamped by the current assembly would give the legislature and president the specific power to alter the number of magistrates. Thus Pereira could win his case, only to be see himself and his fellow Moscoso appointees outvoted on a PRD-packed court.
The apparent inevitability of the Mireyistas’ loss of control over their one remaining stronghold in the national government might convince some of the Moscoso appointees to hold their tongues and be content with less power but continued paychecks. From an outsider’s perspective, however, their judges’ salaries are a minor consideration. What really matters is whether a court system that has notoriously run on bribery and influence peddling these past several years will continue to operate in that fashion.
Also in this section:
Torrijos moves to oust Pereira from the Supreme Court
Mireyista political corruption under multi-pronged attack
September's floods spark unusual responses
Panama News Briefs
