After a whirlwind approval process in the Legislative Assembly, juvenile court judge Esmeralda Arosemena de Troitiño was sworn in as a magistrate of the Supreme Court of Justice on the morning of October 25, and soon thereafter César Pereira Burgos handed her the keys to his office.
However, Pereira Burgos is challenging his removal from the high court bench before his erstwhile and possibly future colleagues, arguing that the application of the “Faúndes Law” that bars those aged 75 or over from most government employment is not applicable to Supreme Court magistrates. In one section the Panamanian constitution specifies the qualifications for membership on the court, and there it does not mention any upper age limit. In another section, however, the constitution bans the removal or suspension of a high court magistrate except in cases with formalities provided for by law. The meaning of the exception --- whether it simply provides for due process for an accused magistrate or on the other hand allows the constitutional qualifications for judges to be varied by statute --- will likely be the legal question on which the case turns.
However, as has become customary, the legal rationale may just be the window dressing on an essentially political power play.
Meanwhile, the political balance on the court has become murkier with the November 1 death of Rogelio Fábrega, one of the two most outspoken anti-Pereira high court magistrates. The 65-year-old jurist fell dead in his office at the Palace of Justice, according to the medical examiner of a massive heart attack. Fábrega, who was appointed by Ernesto Pérez Balladares, would have served on the court through the end of next year. He has been replaced by his suplente, Jorge Federico Lee, who was also a Pérez Balladares appointee.
Earlier Fábrega and Arturo Hoyos, the latter a Pérez Balladares appointee, had called upon José Troyano, the high court’s vice-president under Pereira Burgos, to accept the presidency. Troyano turned them down. Pereira then called for a plenary meeting of the magistrates, which Fábrega and Hoyos, along with Adán Arnulfo Arjona, a Mireya Moscoso appointee who notoriously dislikes Pereira, chose to boycott. At the meeting Pereira and five other magistrates rebuked their colleagues for their absence, and if that lineup is taken to equal the number of magistrates supporting Pereira’s right to continue as a member of the court, then Arosemena de Troitiño’s tenure could be short indeed.
While those maneuvers were ongoing, Pereira Burgos filed a motion with the Inter-American Human Rights Commission, by statute the highest court of appeal for many Panamanian cases, asking for an injunction barring his replacement. That motion was rejected, not on its underlying merits but because the international tribunal saw no urgency that would require its interruption of the ordinary course of legal proceedings.
Pereira’s setback before the commission coincided with something of a groundswell of public opinion that he should step down, given that he presided over one of the more sordid periods of a legal system that was already disreputable before his tenure. That Administrative Prosecutor Alma Montenegro de Fletcher, a PRD appointee, would issue a call to “exorcise” the court would be par for the political course, but the fact that a lot of traditionally anti-PRD figures like former La Prensa publisher I. Roberto Eisenmann were saying essentially the same thing surely undermined Pereira’s political standing.
So when a few days later Arosemena de Troitiño was sworn in, Pereira Burgos stepped back to let President Torrijos’s appointee fill his post while his case is pending, Troyano assumed the court’s presidency and it appeared that an impending constitutional crisis had passed.
And it may well have. The day after Arosemena de Troitiño assumed Pereira Burgos’s seat on the bench, the Legislative Assembly approved a set of constitutional changes that had been passed by the prior legislature. At the start of next year, they will become part of the constitution. One of the changes specifically authorizes the assembly and the president to vary the number of high court magistrates by legislation. Given the comfortable PRD legislative majority, it gives Torrijos the upper hand in any power struggle with the Mireyista-dominated Supreme Court he inherited, even if his move to replace Pereira fails. With that reality looming over the entire process, the apparent show of support by colleagues who attended the plenary session that Pereira called might not be what it seemed.
