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Executive and legislative branches in power play against the courts

by Eric Jackson

Most Panamanians believe, with good reason, that our court system is thoroughly corrupt. When the nation listened, several years ago, to a taped telephone conversation in which a Supreme Court magistrate negotiated a $20,000 bribe to let a Colombian drug trafficker walk, suspicions that a lot of people already held were confirmed --- especially when the legislature failed to convict the judge in the impeachment trial. Prominent lawyers who have declared that our courts run on bribery and influence peddling have been threatened with prosecution, but the threats weren't been upon after the judges who felt dishonored considered the prospect of the facts and fallacies of the contending assertions of honor and disgrace being hashed out in court.

President Torrijos came to office after a campaign in which he made a "zero corruption" pledge, now shown by his record in office if possibly not in public perceptions of it to be another forgotten promise. But he did appoint some Supreme Court magistrates and an attorney general who seem committed to clean up the legal system.

As things stand now, the high court has a 5-4 majority of those who were not appointed by Torrijos, and many of the decisions in high profile public corruption cases come down with the appointees of other administrations voting for impunity and the Torrijos magistrates dissenting. Although when viewed through a partisan lens there is a majority of PRD appointees, it can also be perceived as a matter of five staunchly pro-corruption judges in control.

The case of Vanessa Márquez, a 19-year-old prostitute who was thrown, jumped or fell from a 17th floor balcony at the Plaza Paitilla Inn in the course of a 2005 sex and drugs orgy, has brought the problem to a head. Attorney General Ana Matilde Gómez suspended and brought criminal charges against deputy Judicial Technical Police (PTJ) Erick Bravo for manipulating the investigation of the case to protect the men involved at the party. The medical examiner who handled the autopsy was also sacked, but only after the body cremated and most of the physical evidence destroyed. In the homicide case the lack of physical evidence led to the trial court's dismissal of the charges. Meanwhile. Bravo appealed to the high court and it appeared that after winning a round there that he would be restored to his old post.

Thus, as a way to prevent Bravo's return, the National Assembly passed and the president signed a law that, for six months only, transferred the power to hire and fire PTJ chiefs and their top subordinates from the Supreme Court to the Attorney General. The day the law went into effect, Gómez fired Bravo and sent PTJ chief Jaime Jácome on a career-ending vacation.

But why only six months? Because by the end of that time, Torrijos and the PRD legislative caucus expect to have packed the high court by creating a fifth bench, with three new magistrates who will tip the balance against the old guard. The fifth bench proposal may come up in a special legislative session to begin on January 23, but if it doesn't it will be at the top of the assembly's agenda when the next regular session begins in March.

Not everybody is convinced that the ruling party really intends to end the corruption in our legal system --- there are enough real xamples to cite and it's enough in keeping with the jaded Panamanian attitude about public officials for many to expect that what's going on is a matter of Torrijos installing his crooks to outvote his predecessors' crooks.

And those who see just another cynical power play have their legal champion in law professor and activist Miguel Antonio Bernal. He has filed a lawsuit challenging the constitutionality of the PTJ law and the high court has agreed to hear the case. Bernal's basic argument is that whatever the faults of the incumbent judiciary and its control over the PTJ, what the president and his party are trying to do strikes at the heart of judicial independence that's a cornerstone of the rule of law. His legal challenge is based upon constitutional notions about the separation of powers among the executive, legislative and judicial branches of government.

Later this month we may see a race to pack the high court with a fifth bench so that if and when it becomes time to decide Bernal's challenge the old guard won't have the votes to prevail. And then, a few months later, the matter would become moot because the law makes only a temporary change in the government's organizational chart but there would no longer be a court majority interested in restoring Bravo, Jácome, et al to their posts.

But to Bernal, all the nasty things that might be truthfully said about the courts and the PTJ these days are beside the point. "The separation of powers," he argues, "is essential for the very existence of democracy and the constitutional rule of law."

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