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Historic confrontation between courts and prosecutors looms over the Panamanian legal system

Rhetoric about Cornejo subsides, but the case continues in earnest

by Eric Jackson

On August 10 anti-corruption prosecutor Maribel Cornejo was questioned under oath by one of her colleagues for the file in a criminal case against her for overstepping her authority. The charge was brought exactly one month before by the Supreme Court's presiding magistrate.

The allegation is that Cornejo was investigating the possibility of a bribe allegedly paid to the late high court magistrate César Pereira Burgos in order to throw out a corruption case involving former President Ernesto Pérez Balladares and the two top officials of the former National Ports Authority (since replaced by the Maritime Authority of Panama), one of whom happens to be the current president's cousin, Hugo Torrijos.

A paper trail established by former Comptroller General Alvin Weeden and published in La Prensa on its face indicates that a putatively American-owned company called Panama Ports Engineering Consultants Corporation (PECC) gave Pérez Balladares a piece of the company's profits and number two port authority figure Rubén Reyna various financial benefits, at a time when PECC obtained a government contract via the ports authority to maintain the nation's sea buoys and lighthouses. There is no similarly damning paper trail with respect to Hugo Torrijos that has come to light, but he was Reyna's boss and Pérez Balladares's subordinate, and the man who had to sign off on the contract.

This past May a US District Attorney in Virginia formally petitioned the Panamanian government for its cooperation in an investigation of suspected violations of the US Foreign Corrupt Practices Act by Charles Jumet, the CEO of PECC. It appears that this investigation is ongoing but no indictment against Jumet or anybody else has been announced.

The PECC affair in Panama is a plethora of cases, most of them dismissed by now, against a backdrop of other cases and rivalries. If former President Pérez Balladares wins his power struggle within the ruling PRD and becomes the party's presidential nominee in 2009, it will surely become a central campaign issue.

The primordial legal problem with those cases, according to law professor and activist Miguel Antonio Bernal, is that Alvin Weeden ignored required procedures in going after the celebrated bank records that suggest that Pérez Balladares owned a stake in PECC and then attempted to try the case in La Prensa rather than in the courts.

Meanwhile in the background, former La Prensa publisher I. Roberto Eisenmann and Pérez Balladares notoriously despise one another, and the bad blood between Eisenmann and Pereira Burgos was the subject of a libel suit by the judge against the former publisher.

At one point lower courts froze many assets belonging to Pérez Balladares, Reyna and Hugo Torrijos. In the end, however, the sequestration orders were lifted by a controversial 8-1 Supreme Court decision, which in an opinion written by Pereira Burgos held that the corruption case could not stand due to fatal procedural flaws by Weeden at its inception.

It turns out that at the time he was working on that decision, Pereira Burgos wrote a check with insufficient funds to the tune of $25,000, and at lunch one day at the Cafe Balear he asked his friend Roosevelt Thayer, who had been housing minister under Pérez Balladares, to cover the overdraft. Thayer agreed, and other people were there to witness the transaction.

La Prensa found out about it and Thayer alleges that Eisenmann tried to use it to blackmail Pereira Burgos into dropping the libel suit, which the latter refused to do.

By the fall of 2006, Pereira Burgos had been removed from the Supreme Court by President Torrijos's controversial invocation of a statute banning the holding of a non-elective public job by anybody over 75 years of age. According to Cornejo's lawyer, Attorney General Ana Matilde Gómez asked his client to look into the possibility of bribery in that act of covering the bounced check. Cornejo's defense is that she wasn't investigating Pereira Burgos, who had immunity from investigation unless lifted by the National Assembly, but the conduct of other non-immune people.

The legal weakness of that argument is that in another high-profile alleged corruption case that came to naught, the claim that legislators were bribed to approve the CEMIS airport expansion and multi-modal interface contract in Colon, the court ruled that when a legislator who enjoys immunity from investigation and prosecution is involved in an act of public corruption, his or her immunity extends to non-legislator accomplices. Panama, of course, uses the Civil Code system of law rather than the precedent-based Common Law of the English-speaking jurisdictions, but precedents do create certain presumptions and according to Bernal any investigation that in any way touches upon the conduct of the Supreme Court would constitutionally have to be preceded by the legislature's lifting of immunity in the matter.

(Does Bernal, who is a member of the Honor Tribunal of the Colegio de Abogados --- the bar association's disciplinary board --- like this constitutional provision? Not really. He's an outspoken advocate of a new constitution. However, he says he's against throwing out existing constitutional norms in a way that sets the precedent for violating judicial independence, and moreover thinks that the seven other votes on the high court are good evidence that the dismissal of the PECC cases was based on law rather than the bribery of one magistrate.)

These legal distinctions don't play well in the public eye. What most Panamanians see is a series of high-profile public corruption cases thrown out of the courts as one of the indicia of a legal system that runs on bribery and influence peddling.

Attorney General Gómez has been on an anti-corruption offensive since she took office, and in the process of it has made enemies in the courts. In the case of Dulio Arrocha, a judge who had been practicing and teaching law and serving in judicial posts for years with a fake law degree, Gómez ordered a surprise prosecution raid on the Supreme Court's records room to secure evidence in the case, and Graciela Dixon complained that this was an unconstitutional violation of judicial independence. In a case involving a prosecutor facing charges for taking bribes, the high court rebuked Gómez for ordering wiretaps against her erstwhile subordinate.

When Dixon filed her criminal complaint against Cornejo, the former let loose with an outraged tirade. Gómez quietly opened an investigation and is allowing the case to proceed, but Dixon complains that the matter isn't moving fast enough. Other observers note that if it goes to trial the judge hearing the case could be fired if she or he rules in a way that offends the magistrates of the Supreme Court, which holds supervisory jurisdiction over all lower courts. An allegedly overreaching prosecutor's investigation, it seems, is not the only angle from which judicial independence is subject to attack in this matter. "Who's going to judge the prosecutor --- the same court that has accused and taken a position against her?" El Panama America asked in an editorial.

Were this case to progress at the normal snail's pace, it would be percolating in the lower courts when this year and Graciela Dixon's term in office end. However, when Dixon filed her complaint against Cornejo only one of the nine magistrates dissented, so what could be a brewing constitutional crisis may well survive the term of the presiding magistrate who insisted upon it.

SUNTRACS members killed in government move to smash union
With habeas corpus motion pending, Noriega's house being renovated

Toned down rhetoric, but Cornejo case moves ahead

US denies RP basketball team visas, reverses itself

Mayoral candidates and labor
Panama News Briefs