Ana Matilde Gómez and her woes

Ana Matilde Gómez. Photo by the Ministerio Público

Ana Matilde Gómez, Rigoberto González face criminal probe for alleged illegal wiretaps that caught bribe-taking ex-prosecutor

Attorney general fights for her job and reputation
by Eric Jackson

The historical context

There are a number of theories about the significance of the case and the social and moral worth of the parties, but first, let's get down to the historical context:

Ana Matilde Gómez was appointed by Martín Torrijos to a 10-year term as Attorney General (translated into English in different ways, it's how The Panama News describes "Procuradora General de la Nación"). She succeeded the notoriously pro-corruption José Antonio Sossa, who had been appointed by Ernesto Pérez Balladares, himself at the moment the target of various corruption allegations but back in 1994 the candidate who ran on a platform of ending "judicial terrorism," that is, prosecution of crimes committed during the dictatorship.

Inheriting a staff largely composed of Sossa's people, Gómez asked for the resignations of all prosecutors, and dismissed all physicians at the Institute of Legal Medicine who were collecting a full-time salary with that institution but also held other government jobs. Some of the prosecutors tendered resignations and some of these were accepted. Most prosecutors did not, and in the legal wrangle that ensued the courts held that prosecutors by and large have civil service job protection. Gómez shuffled prosecutorial assignments, which in turn led to another wave of resignations of people who did not find it convenient to move or commute. She also proved quick to slap down misconduct in the Public Ministry. In all, 13 prosecutors were eliminated in the first year of Gómez's tenure.

Arquímedes Sáez was one of Sossa's prosecutors, and he ignored Gómez's call for resignations. His last assignment with the Public Ministry (that part of the government that the Attorney General heads, which, unlike other ministries, is not directly answerable to the president) was as the prosecutor for La Chorrera.

Miguel Ángel Zambrano was the father of a daughter incarcerated in the La Chorrera jail, who stood to be transferred to the nation's main women's prison in Tocumen. In 2005 he claimed that Sáez had demanded and then been paid $600 to keep his daughter from being transferred, then later demanded more money for the same intervention. The assistant prosecutor in La Chorrera, Luis Martínez, asked Gómez for permission to tap the phones of Zambrano and another member of his family in this case. Gómez and the secretary general of the Public Ministry, Rigoberto González, signed the order.

Now who showed up talking on the phone with Mr. Zambrano? One Arquímedes Sáez. Based on information in that call, Sáez was arrested at his home in La Chorrera, having been caught in the act of receiving $2,000 from Mr. Zambrano. He was fired from his job on August 16, 2005 and ordered held without bail. Ten months later, a court set bail for Sáez at $15,000, which he had a bit of difficulty raising but eventually posted. In December of last year, a criminal court ordered Sáez to stand trial for bribery. That trial has yet to happen.

But meanwhile, shortly after his arrest Sáez filed a criminal charge against his erstwhile boss, accusing Gómez and González of the crime of exceeding their authority by ordering illegal wiretaps. That complaint went rather quickly into interlocutory appeals, one of which presented the Supreme Court with the question of whether the Attorney General has the power to issue wiretap warrants. This past July 15, in a 2007 judgment whose announcement was withheld for two years, the Supreme Court held that Gómez is not a "competent authority" to issue wiretap orders. Based on that ruling and Sáez's complaint, a criminal investigation has been launched against Gómez and González. In such cases, to avoid conflicts of interest the job of prosecuting goes to the Administrative Prosecutor (Procurador de la Administración) who is Oscar Ceville. However, since Ceville and Gómez have long-standing collegial ties of careers that have crossed paths several times, Ceville's assistant, Nelson Rojas, is in charge of the Attorney General's prosecution.

The conflicts and subtleties of Panamanian wiretap laws

The statutory law and administrative regulations on who can order a wiretap is clear on its face. Law 13 of 1994 --- which was principally an anti-drug law --- provides that phone calls can only be intercepted on order of a "competent authority." The regulations implementing that law gave exclusive power to order wiretaps to the Attorney General.

Meanwhile, in the package of constitutional changes agreed to and passed by the Moscoso and Torrijos administrations and their respective legislatures, there was a one-word change in the right to privacy. The world "competent" was changed to "judicial" in Article 29, rendering it as of January 1, 2005 as:

All private communications are inviolable and may not be intercepted or recorded, except by mandate of judicial authority.

The Torrijos administration and its legislators did not see fit to amend Law 13 of 1994 or its implementing regulations. According to statute and regulation, the Attorney General has the exclusive power to order wiretaps, but according to the revised constitution, as interpreted by the Supreme Court, she doesn't because she's not a "judicial authority."

In hindsight, the way such a thing ought to be done is that the Attorney General orders the wiretap but that the order does not become effective unless and until a judge signs it. As the ruling by high court magistrate Esmeralda de Troitiño provided, not just any judge but the Penal Bench of the Supreme Court must approve, and the request must first come from the Public Ministry. But at the time that this issue arose in 2005, there was no judicial guidance on the interplay among statute, regulation and constitutional provision and in particular how "judicial authority" is defined for these purposes.

Two extra legal twists

One of institutionalized encouragements of public corruption in Panamanian law is the summary proof rule. Under that doctrine, one may not commence a criminal investigation against a public official unless one attaches to the complaint "summary proof" --- complete and legally usable proof that a crime was committed and that the official complained of committed it. So what does Nelson Rojas attach as his summary proof to the papers starting the investigation against Gómez and González? The wiretap order and the Supreme Court decision.

One problem is whether that really was the start of the case. If the case started with Rojas, then a Supreme Court decision is not proof of the facts but only a statement of the law, and if Rojas looked up the order in question he began his investigation by doing that, and thus started an investigation without prior summary proof, and thus the investigation became illegal and any further investigation is barred. (Great legal doctrine if you are a crooked public official, is it not?)

Another problem is whether the case started with Rojas, or with Sáez. Sáez, it is alleged, got his facts garbled and probably also fell short of meeting the summary proof rule. The argument there is that he complained of wiretaps against himself, but the order was for wiretaps of the Zambranos --- whose permission for them would waive their possible constitutional or statutory objections. So can a third party running a shakedown racket who gets caught by prosecutors listening to the victim's phone calls with the victim's permission then assert a privacy violation under Article 29 of the constitution?

Those two twists are likely to be the points on which the case against Gómez and González turn.

Even if the prosecution clears the summary proof hurdle and third parties who get caught on wiretaps come out with a ruling in their favor, there will still remain the matter of whether Gómez had any criminal intent. A court could decide that since it was an obscure and conflicting point of law in question, it can't be said that she intended to overstep her authority. Or, it might be held that while her intent doesn't matter as to her guilt or innocence, but that in handing down a sentence it's relevant. In this matter, a conviction might mean Attorney General Gómez's removal, or might end up in a $50 fine and three-day suspension.

The stakes

Earlier this month, when Ana Matilde Gómez was attending a session of the National Assembly's Budget Committee, Panameñista deputy Miguel Fanovich was in a baiting mood. "Why hasn't any ex-president been made a prisoner?" Fanovich shouted out. Gómez angrily responded that there has been a "systematic media campaign" against herself and that now it was being waged in the Budget Committee. At this point President Martinelli, who had not been accused, pleaded that he had not interfered in other branches of the government, nor had he spoken to her, much less to demand her action against any of his predecessors. Martinelli added that the Attorney General's budget problems with the National Assembly come from the legislature, not from him.

A few days later, the Supreme Court lifted Fanovich's legislative immunity. Now he will have to face a criminal investigation for allegedly, while back on the primary campaign trail in Chiriqui last year, offering money for the votes of Panameñista Party members. Fanovich is backing a pending proposed law that would give any court-designated magistrate investigating a corruption case against a legislator only one month to conclude an investigation, after which any investigation or prosecution would be barred.

Has Martinelli scrupulously respected the constitutional separation of powers? That's what he claims, and no evidence to the contrary has come to public light. However, the president's cousin, anti-corruption czar (or Secretario Anticorrupción, if you prefer) Fernando Núñez Fábrega, has baited both his predecessor (Alma Montenegro de Fletcher) and Gómez for being soft on corruption. Montenegro, he said, dedicated her time to "giving talks to functionaries;" while he compared Gómez to a baseball team that has put "no hits and no runs" on the board in the game against public corruption.

And indeed, the Attorney General does have little to show in high-profile public corruption cases. For a few of many examples:

Early in 2005 Martinelli's one-time subordinate in the Ministry of Canal Affairs, Richard Fifer, was charged with embezzling foreign aid checks while he was governor of Cocle province. An arrest warrant was issued and after going "underground" in a charade that included press interviews, fundraising on the Vancouver stock exchange and meetings between his company and Torrijos administration officials, Fifer was allowed to pay the money back and get the arrest order --- but not, at least not immediately, the charges --- lifted. A gag order was then imposed on the Cocle prosecutor with respect to the case. The public has heard nothing more from the Public Ministry or the courts about the status of the case. We have heard from a notorious purveyor of disinformation a completely falsified account of what the case is and how it has proceeded. The case may have been quietly dismissed, or may still be pending. Then, of course, there are the multiple environmental crimes of Fifer's Petaquilla Gold company, which have been the subject of at least one criminal investigation that does not seem to have gone anywhere.
There was the diversion of some $6 million in Taiwanese government aid to Panama through the Fundacion Pro Educacion Integral de la Niñez y la Juventud, a "private" foundation headed by President Moscoso's sister Ruby Moscoso de Young and "staffed" mainly by people who held full-time jobs with the Moscoso administration; and the matter of $45 million in Taiwanese government aid channeled through the Fundacion Mar del Sur, another "private" foundation set up by the Moscoso administration. Earlier this year the Administrative Bench of the Supreme Court, in a controversial 2-1 decision written by Moscoso's former Minister of Government and Justice Winston Spadafora, declared a 2004 Comptroller General's audit of the Fundacion Mar del Sur illegal because it's a private foundation. Because in most public financial scandals the Public Ministry can't act without an audit from the Comptroller General, it seems that this matter is closed. After more than five years the Fundacion Pro Educacion Integral de la Niñez y la Juventud issue remains in limbo in the Never Never Land of the high court's docket.
Prosecutors now admit that the death toll in the Torrijos administration's poisoned medicine scandal may have gone over 1,000, but other than some brief for-show detentions nobody has gone to jail. Moreover, prosecutors have kept the matter of the Torrijos administration's suppression of information about the unusual rash of deaths and illnesses --- which led to weeks of delays in discovering the source of the problem and many deaths --- entirely out of the investigation.
It is now fairly well documented that former President Ernesto Pérez Balladares in one way or another took silent stakes in concessions that his administration granted. The case of the contract to manage the nation's maritime buoys and lighthouses with an allegedly American-owned company called PECC ended in a court ruling that the Comptroller General at the time improperly began the investigation without the ex-president's immunity as a member of the Central American Parliament having been lifted. The matter of Toro Pérez Balladares having received proceeds from gambling concessions his administration granted is just beginning to play itself out and may or may not ever get to criminal proceedings, but it has led the Martinelli administration to take steps to cancel those concessions.

... to give just a tiny sampling of many cases.

If we want to use the baseball analogy, Gómez hasn't put any runs on the board. Not even Sáez has gone to trial. The Attorney General can truthfully plead that the courts are the problem, or that the laws are the problem, but only to a certain extent.

But of course, there are people who like the idea of impunity for corruption. Take Toro Pérez Balladares's Labor Minister and sycophant-in-chief Mitchell Doens, recently elected as the PRD's secretary general, as an example. More or less the first thing he did in his new office was to accuse President Martinelli of applying pressure to Gómez to have her prosecute members of his party. Former legislator and recently elected PRD undersecretary Pedro Miguel González chimed in that Martinelli wants to use Gómez as a "hunting dog" to put Ernesto Pérez Balladares and Martín Torrijos in prison.

Martinelli denies all such intentions, and points out that the wiretapping complaint against Gómez goes back four years. However, the political math of his principal opposition being called front and center to account for tawdry acts of corruption for the better part of his term in office would accrue to the president's favor --- especially if there are also prosecutions for things that went on in the Moscoso administration and against the likes of Mr. Fanovich to give the sense that it's a clean-up rather than partisan persecution.

It appears that the Attorney General will not be easily driven from office. On October 19 Rigoberto González, flanked by most of the nation's top prosecutors, held a press conference where he announced that he was stepping down from his job with the Public Ministry and filing his appearance as Ana Matilde Gómez's defense attorney. If, as her co-defendant, he risks violating the injunction that he who acts as his own attorney has a fool for a client; and if others in the legal profession cite his relative inexperience as a litigator; it can be reasonably certain that González will not be the only member of the defense team. And for those who would dismiss the event as a matter of subordinates being drafted into supporting their boss, consider the emotions involved. Would the nation's prosecutors be able to walk with their heads held high if their boss was removed by way of a complaint brought by an extortionist who had wormed his way into their ranks and is slinging mud after having been caught?

At the bottom line, unless she has terrible advice, Ana Matilde Gómez ought to come out of her fight as something of a national heroine. One of her subordinates was using his position in the government to demand bribes, and she slapped him down. If she loses her case and gets run out of office for doing that, or for not doing that in the prescribed fashion, Panamanians are going to conclude that the courts and not the Attorney General are the locus of outrageous corruption. If she wins her case it will appear to be total vindication --- even if she has little else to show in the fight against public corruption.

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