Changing of the prosecutorial guard

Eduardo Rubén Ulloa Miranda, the former campus radical, veteran prosecutor and specialist in financial crimes, comes out of private practice to take charge of the Public Ministry. Photo by the Presidencia.

Cortizo nominates a new Attorney General and two new suplentes

by Eric Jackson

If the Attorney General (Procurador or Procuradora General) is to be investigated, who can investigate the Attorney General? That would fall to the Administrative Prosecutor (Procurador/a de la Administración). It’s kind of like how in Common Law jurisdictions if a case stays within the country, it’s the coroner who can arrest the sheriff.

But it all may seem a bit too in-house and chummy. Attorney Abdiel González Tejeira went to the Supreme Court with precisely such a claim, arguing that Administrative Prosecutor Rigoberto González is too friendly to Attorney General Kenia Porcell. Thus, the administrative prosecutor should not continue his investigation of apparent improprieties shown in the hacked Varela Leaks telephone text messages. But González Tejeira’s lawsuit was assigned to magistrate Luis Ramón Fábrega, who dismissed the challenge mainly on procedural grounds.

Porcell has resigned as of the end of the year, so come January the case may end up on the desk of the nominee to be her replacement, Eduardo Ulloa. Conflicts of interest and prior suggestions of prejudice seldom get accepted as ground for judges to recuse themselves, but an attorney general doesn’t have to rely on colleagues to determine if he or she must recuse, although a court may order that. And earlier this year Ulloa did criticize one of the events for which Porcell is to be investigated, the very lenient plea bargain that was accepted from Odebrecht, which allows the thug construction company to continue to bid on public works contracts here notwithstanding a long history of corrupt dealings in Panama and many other countries.

We are a nation that by most indications is downright annoyed about the entire justice system. It might be that although the right to investigate Porcell devolves to Ulloa once he takes office, he’d prefer to have the administrative prosecutor continue with the investigation. We shall see.

And what if Rigoberto González gets removed from HIS post? Or if Ulloa wants the case back in the attorney general’s office, but with someone else handling it? President Cortizo is providing some of the options. There had been no suplentes — alternates — for either the attorney general or the administrative prosecutor, but the president has named two choices for these posts.

There may be a constitutional rumble about that — the constitutional chapter on the Public Ministry does not mention either of those offices, but rather the catch-all “other functionaries as the law establishes.” Figure that if the National Assembly ratifies appointments to these posts, then arguably they are established by law. But in Panama procedure seems to be 90 percent of the law and it might be argued that to validly appoint suplentes there would have to be a ordinary legislative process with committee hearings and a vote by committee, then two separate votes by the National Assembly. Get beyond the appointments and the constitution doesn’t mention the duties or succession of a suplente in those posts, although the power of the procuradores to delegate their own duties is specified.

Go even farther afield to Article 224 of the constitution and it provides that that the attorney general and the administrative prosecutor must meet the same requirements and are subject to the same prohibitions as Supreme Court magistrates. But it really doesn’t specify who, exactly, appoints people to these offices. It might be argued that these two posts are those of government minister or of heads of autonomous government agencies, thus within the purview of presidential appointment powers. But that the constitution does not clearly say, and that precedent counts for little in the Civil Code systems of justice of which Panama’s is one, is perhaps one more argument for the drafting of a new constitution.

In any case, the president has nominated veteran prosecutor Javier Caraballo as Ulloa’s suplente and the secretary general of the administrative prosecutor’s office, Mónica Castillo, as González’s suplente.

There are more than 70 public corruption cases in the system, and there are likely to be more coming. When taking office Cortizo said that he doesn’t want to concentrate on prosecuting his predecessors and those who served under them, but if things properly come before the legal system he’ll let them run their courses.

So with new faces coming into the prosecutorial picture, do we get continuity or change? We’ll have to wait and see.




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