When a Supreme Court decision purported to revive the 11-year-old "Fifth Bench" high court expansion scheme that was passed in the 1999 lame duck days of the Pérez Balladares administration but repealed soon thereafter by the legislature that came in with the Mireya Moscoso presidency, it contained a flaw evident to most law students in Panama and every other Civil Code jurisdiction. The repeal of a law that repealed a law does not revive the first law that was repealed. To revive a law that was repealed, there needs to be new legislation. It's one of the maxims of the Civil Code system.

In Louisiana, which uses a form of the Civil Code (given its French heritage), Article 8 of the Louisiana Civil Code provides that: "The repeal of a repealing law does not revive the first law."

Here in Panama, Article 37 of the Civil Code provides that:

A repealed law not be revived by the reference made to it alone, nor by having abolished the law that repealed it. A provision repealed only will regain its force by being reproduced in a new law, or in the event that a law subsequent to the repeal expressly establishes that it shall regain its effect.

Might one argue that by striking down the 1999 law that repealed the Fifth Bench, the court wasn't "repealing" the repeal legislation, but just upholding the constitution as the magistrates said? That still doesn't work --- at least not if there is the rule of law --- because the Judicial Code provides that: "Court decisions handed down in constitutional matters are
final, definitive and binding and have no retroactive effect."

Nowadays the rule of law means very little in Panama, and Ricardo Martinelli constantly more or less says, not in so many words, that he has the power to do whatever he wants and he will do it regardless of any law or limiting factor. Don't look at the Fifth Bench revival as a reasoned legal decision, but as a political move by the president, through the courts that he pretty much controls, to pack the Supreme Court and thus give himself the unbeatable majority to uphold all of his whims and actions.

But what happens post-Martinelli to what is intended to be an enduring lock on the judiciary, if its legal feet are made of clay? Lawyers in the Martinelli camp, recognizing the dubious nature of what was done and what that might mean in the future, figured that legislation to define the scope of the Fifth Bench's jurisdiction would cure the court's error. The basic maxim found in all systems flowing from Napoleonic and Roman law is that: "A provision repealed... will regain its force... in the event that a law subsequent to the repeal expressly establishes that it shall regain its effect."A law to implement a court decision reviving the Fifth Bench would suffice to make the objections to that decision moot.

And why would anyone care? Opposition politician and, according to polls, believe that Martinelli's packing of the high court with three more of his appointees would concentrate too much power in his hands. Specific fears are that with this super-majority on the court Martinelli will revoke the constitutional ban on his seeking re-election, close down opposition media (which was a specialty of the Supreme Court's presiding magistrate, Alejandro Moncada Luna, when he served as one of the Noriega dictatorship's top lawyers) or grab control of the Electoral Tribunal, the one remaining state institution which Martinelli does not control. To many Panamanians who disagree with one another about nearly everything else, the question of the Fifth Bench is about whether Panama retains some semblance of democracy or effectively becomes a dictatorship.

And thus the crowds came to the legislature, and the Martinelistas moved to cut off  debate at every turn. After the measure was rushed through committee and brought to the entire National Assembly, a large assortment of opponents, from Chamber of Commerce types to the communist labor activists, came down to protest. The galleries got rowdy, with the legislature's vice president, Marcos González, going into them and getting into vulgar exchanges, and finally with someone starting to throw punches, which gave the excuse that the public would not be allowed into further sessions on the subject of the Fifth Bench.

 (Former Attorney General Ana Matilde Gómez charged that the man who started the violence but who was not arrested is a rather ordinary thug and former employee of the old Interoceanic Regional Authority, whose past deeds include setting a government vehicle on fire. She compared him to the members of Noriega's Dignity Battalions and environmentalist leader Raisa Banfield opined that the man was a government provocateur.)

However, by then the polls were showing a strong public rejection of the Fifth Bench and the way things were being handled, and President Martinelli announced that he really didn't need or want legislation because the court decision had given him the power to appoint three new magistrates. Moncada Luna took the most unusual step of sending a letter to the legislators, alleging that the law was both unnecessary and an interference in the court's prerogatives. (That letter may come back to haunt him, because an ex parte advisory opinion of a matter before the legislature violates judicial ethics. Several Panameñista deputies said that they will file criminal charges against Moncada Luna for exceeding his powers, which legal action will go nowhere until the post-Martinelli era.)

So the Cambio Democratico caucus in the legislature pulled back. They moved to withdraw the proposed law from the agenda, and wouldn't allow debate. What ensued was the screaming argument, with corny threats of fisticuffs, shown above.

The Fifth Bench controversy lives, but it probably will not be argued about inside or around the legislative palace in its next phases, and its fundamental legal defect will go uncured.

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