Bernal, The Heliodoro Portugal disappearance case

The Heliodoro Portugal case and impunity
by Miguel Antonio Bernal

For those of us who believe that the crimes committed during the dictatorship of Torrijos and Noriega should not remain unpunished, the holding of an international trial at which the state is called upon to account for crimes against humanity is a very important step. The trial about the Heliodoro Portugal case that was recently begun in the Inter-American Human Rights Court is cause for satisfaction because the denial of justice internally within Panama can be seen corrected thanks to the workings of external justice to which the Panamanian state has agreed to submit, if it violates human rights.

But at this trial, I have been informed, there was no lack of "public servants" who took refuge in the shelter of the state (yesterday as the military dictatorship and today as the cover-up apparatus) and from there attempted to perpetuate impunity with pettifogging pseudo-legal sophistries that by all accounts oppose human rights.

For them, "the Court can't hear the case, given that Portugal was executed in 1970 and Panama accepted the Court's jurisdiction in 1990." That is, what's important here is not whether some individuals protected by the criminality of the militarist state kidnapped, tortured, murdered and disappeared Portugal; what's important is when this occurred, as the dictatorial government hadn't signed certain international human rights commitments, and as this was done as soon as the dictatorship ended, then these commitments can't be invoked to do justice in a case of a crime that they themselves committed.

The media tell us of a trial at which two positions were advanced:

1) That of those who consider that the forced disappearance of Heliodoro Portugal violated the human rights to life, due process of law and other fundamental guarantees; and

2) Those who defend and would cover in a mantle of impunity those public officials who violated these rights, and worse yet, are or have been those officials who have continued and will attempt to continue posing as the defenders of human rights, although they end up defending their negation.

Let us remember that Portugal disappeared in 1970, one of hundreds of Panamanian victims of the opprobrious dictatorship, and that the Inter-American Human Rights Commission (IAHRC) came some years later, in 1977, for a local fact-finding visit and when they asked the dictatorship about Portugal's whereabouts, the regime argued that it didn't know. Two decades later a body buried at the Pumas barracks in Tocumen appeared and thanks to the investigative journalism of Rafael Pérez Jaramillo and the economic support of Ramón Fonseca, it was possible to do a DNA test that permitted the remains to be identified as Portugal's. This is what obliged the Attorney General of that time to reopen the case.

It is reported that at the Heliodoro Portugal trial in the Inter-American Human Rights Court, the ex-Attorney General said that he understood that the tests had been paid for by the Public Ministry. Such cynicism is possible? Yesterday's impunity continues today when these public servants who say that they defend human rights now sit in front of the Inter-American Court, endorsing the state that would perpetuate impunity. They don't mention the other mid-level officials from back then that today continue the cover-up with their complicit silence about the criminal investigation omissions aimed at concealing the true assassins of Heliodoro Portugal, nor do they mention the other Foreign Ministry officials who are on the one hand covering for those responsible and on the other treat Heliodoro's relatives with gross insults. I hope that the Center for Justice and International Law publishes this file, with all of its sworn statements.

Recently the IAHRC handed down a judgment against the Chilean government for the murder of one Almonacid Arellano. The decision was handed down in September of 2006 and the case dealt with the 1973 extrajudicial execution by government agents of Almonacid Arellano, who was a Communist Party militant. The court didn't get bogged down in an inquiry about whether at the moment of the crime it had or didn't have jurisdiction to intervene, but rather relied on an analysis of the origins of the proclamations against crimes against humanity in the Nuremberg Principles and other sources.

The court held that "... there is ample evidence to conclude that in 1973, the year of the death of Mr. Almonacid Arellano, the commission of crimes against humanity, including the murder executed in the context of a generalized or systematic attack against sectors of the civilian population, was violative of an imperative norm of international law. Said prohibition against the commission of crimes against humanity is a ius cogens norm, and the punishment of such crimes is obligatory under general international law." It also held that "crimes against humanity produce the violation of a series of inalienable rights recognized in the Inter-American Convention, which can not be left unpunished. On repeated occasions the tribunal has stated that the state has the duty to avoid and combat impunity, which the court has defined as 'the overall lack of investigation, pursuit, capture, trial and sentencing of those responsible for the violations of the rights protected by the Inter-American Convention.'"

Almost $100,000 --- which could well have served to indemnify some of the dictatorship's victims --- went to pay the two representatives of the Panamanian government before the Inter-American Human Rights Court in the case of Heliodoro Portugal's disappearance and death.

Apart from the sum paid to the agent Jorge Federico Lee, as the Martín Torrijos administration didn't want to reach an agreement with the Portugal family, Panama had to nominate an ad hoc judge to participate in the trial.

On January 14, the government appointed Juan Antonio Tejada Espino, whose fees are upwards of $45,000.

The purchase order for these legal services can be found on the Internet at: http://www.panamacompra.gob.pa/panamacompra/detallecompradirecta.aspx?ID=200 7-0-05-0-08-CD-000408.

[Editor's note: The Torrijos administration, which was elected in part for its promise of transparency, has since taken the information down from this web page.]

The public has the right to know how much this contempt and disdain for the law cost the citizenry, not only in human terms but in financial ones as well.

If we add up these fees, plus the travel and lodging for the officials and government witnesses who attended the trial, plus who knows what other expenses, the trial may have cost us $200,000. Such an expenditure, to defend a regime that denigrated and violated human rights is absolutely unacceptable.

It's yet worse. Those who were present at the trial tell me that the former national ombudsman was asked on repeated occasions by the presiding judge if he had any questions and his response was "I have not questions, madame president."

I would like the Portugal family to say whether this silence that he maintained in court was like the silence he kept about the Portugal case at the time it was before the Defensoria del Pueblo.

I am told that the present "servant" in charge of the Defensoria (where he also worked in the prior administration) did not until the trial was announced, attempt to contact the Portugal family, which, of course, ignored him.

I would like to know if this administration of the Defensoria del Pueblo has dealt with any of the relatives of the dictatorship's victims. I know that the families can say much about this, and now is the time for the truths to start coming out.

An interesting subject that could also be investigated is the referral of the contract to the laboratory that contaminated evidence in order to disappear Heliodoro Portugal for a second time. We have been promised an investigation about this --- both about the pedigree of this company and of the two companies that acted as its resident agents, which turn out to be attached to a name that very much coincides with what's going on here.

The author is a law professor at the University of Panama, president of the Colegio de Abogados Honor Tribunal, host of the Alternativa radio show and website and independent candidate for mayor of Panama City in 2009

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