A three-way Justice Day, but an inconclusive one

US District Judge Marcia G. Cooke, a George W. Bush appointee, wasn’t accepting Martinelli’s frivolous challenge to the extradition order. Her official portrait.

A three-ring but inconclusive Justice Day for Panama

by Eric Jackson

While President Juan Carlos Varela was away attending the business and government summit in Davos, Switzerland, a justice crisis that’s increasingly dogging his administration manifested itself in three places in Panama and the United States. But in each case final resolution will have to await another day.

In a Miami federal courtroom, US District Judge Marcia Cooke summarily rejected former President Ricardo Martinelli’s appeal of a magistrate’s extradition order. Any competent observer of the US legal system would have expected this. The ex-president’s lawyers were arguing about whether a recent treaty was retroactive, but among the charges against Martinelli is the theft of the computer and software used for the warrantless surveillance of citizens — including, at least indirectly, this reporter who communicates from time to time with one of the 150 individuals who was on Martinelli’s infamous surveillance target list. Argue all he wants about whether electronic crimes are covered for purposes of extradition, but theft clearly is, by terms of a 1904 US-Panamanian extradition treaty.

Martinelli might appeal the ruling to the US Circuit Court of Appeals, but his lawyers told Panamanian media that he won’t. Still, the US State Department and perhaps the White House iteslf have to give final approval to the extradition. Would they have allowed Martinelli’s arrest in the first place had they not intended for the process to run its course? Perhaps Washington has arrived at such a stage of incoherence, but most probably within a month Martinelli will be on his way back here to stand trial. But wait — Judge Cooke said that she might grant Martinelli’s request for bail but she wants to hear any objections from the prosecution before she decides that. She has given the Justice Department lawyers until February 6 to register any objections. So might Martinelli get out on bail before being put on a plane back to Panama, and use that window of freedom to make a break for a third country? That sort of thing is the reason why bail is ordinarily not granted in US extradition cases. A person fighting extradition is inherently a flight risk.

Ana Lucrecia
Leave it to the deputies in the National Assembly to accept such a thing, but Ana Lucrecia Tovar de Zarak made one of the stupidest and most obnoxious claims of qualification for a seat on the high court ever. Asamblea Nacional photo by Martín Castillo.

Meanwhile in the legislature, the National Assembly’s Credentials Committee was hearing from Varela’s nominees for posts as Supreme Court magistrates or alternate magistrates, having previously heard from a number of witnesses for and against. The two top nominees, Ana Lucrecia Tovar de Zarak for a spot on the civil bench and Zuleika Moore to be a penal bench magistrate, had been generally opposed by non-governmental witnesses and supported by spokespeople from the Varela administration.

The nominees for three spots as alternate magistrates are all ciphers but by the odd rules of the current constitution all have arguably better qualifications than Tovar or Moore. That’s because to become a suplente one must have been a career judge, while to be a magistrate no experience on the bench is required.

Moore was given a hard time by committee members, while Tovar was not. Moore’s problems mostly came from Cambio Democratico deputies, who said or implied that she had used improper tactics and unfairly treated former members of the Martinelli administration whose cases she is or has been handling as anti-corruption prosecutor. Moore did not apologize or concede very much, but argued that of course criminal defendants are going to complain about being prosecuted.

And Tovar! She said that her biggest qualification was having been born and raised Catholic. It is a feature of Panamanian political culture that folks with purportedly illustrious surnames will sometimes run for elective offices by talking about their families. Citing that as a qualification for the bench is unusual, and perhaps anachronistic at a moment when the predations of the very rich and of the political caste have the country sliding toward a constitutional crisis. It might have been worse. She could have talked about how her husband was one of Varela’s vice ministers who quit just before she was nominated — but then that is one of the circumstances cited by those who argue that she lacks the independence to be a good judge.

Miguel Antonio Bernal strikes up the anti-corruption tamborito band across from the Attorney General’s office. Photo from Bernal’s Twitter feed.

Also on January 23, a small band of protesters, including most of the main organizers of the large January 9th rally on the Cinta Costera, showed up in Parque Porras across from the Procuraduria. The demand was that Attorney General Kenia Porcell release the list of public officials who took bribes from Odebrecht, something that she first promised Panamanians that she would make known then announced that because things are under investigation can’t be made public. This comes against a background of court decisions — under appeal — that a plea bargain by one party to a corrupt transaction bars prosecution of any of his, her or its accomplices and that a plea bargain by Odebrecht in one set of cases bars the government from excluding the Brazilian company from future public works contracts. Three witnesses who have gone public and a paper trail say that President Varela took millions in laundered payments from Odebrecht starting in 2009. (Porcell, of course, has under the constitution no jurisdiction to investigate a president.) Most recently it was announced that the company is seeking the contract for renovation work on Parque Omar and the national library.

But after a huge show of force two weeks earlier on a holiday, the crowd at noon on a work day was the usual small gathering of veteran activists who are mostly retired or self-employed. No masses of workers and peasants storming the citadels of power on this day, and those individuals and media most brazenly committed to the status quo of corruption with impunity taunted the protesters about the size of the crowd. Ricardo Martinelli’s media outlets, which may yet be confiscated from him as stolen property tried to spin the protest as larger than it was and not aimed at Martinelli but only at Varela.

So is the anti-corruption movement a “failure” that can now be forgotten as the usual corrupt politicians, construction company people, lawyers and financial operators go back to their customary games? That the Electoral Tribunal has banned the publication of opinion polls tales away one traditional measure of the voters’ exasperation, but it would be a mistake to presume that it has gone away.

Perhaps the better gauge of the situation was in an interview that Vice Minister of the Presidency Salvador Sánchez gave to La Estrella’s Adelita Coriat. Sánchez acknowledged a long-standing consensus among experts that the constitution needs to be changed and hinted that Varela, who ran for the presidency on a promise to convene a constituent assembly and then rejected that idea with an argument that he could not control the outcome of a new constitutional convention, is again thinking in constitutional reform terms.

Might we be offered yet another small patch, approved by the current National Assembly and ratified by the one elected in 2019? It’s first of all no foregone conclusion that he could get the current legislature to go along — the PRD and CD caucuses are in opposition mode, the extent of which will be seen by whether the president can get his high court nominations ratified. By itself his Panameñista Party caucus is way short of the needed votes. Assuming that Varela can get the votes, the presumption that there will be much continuity between this legislature and the next one is also a doubtful proposition.


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