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Cable sobre las maniobras del gobierno de Martinelli para defenestrar a la Fiscal General

La debilidad del sistema judicial es dañino, entre otras frazones, porque retrae la inversión y el clima empresarial

ID: 246632
Date: 2010-02-01 23:11:00
Origin: 10PANAMA43
Source: Embassy Panama
Classification: CONFIDENTIAL
Dunno: 09PANAMA756 10PANAMA29
Destination: VZCZCXYZ0000

DE RUEHZP #0043/01 0322311
R 012311Z FEB 10

C O N F I D E N T I A L PANAMA 000043


E.O. 12958: DECL: 2020/02/01
SUBJECT: Martinelli's Wish is Supreme Court's Command: Attorney
General Suspended

REF: 09 PANAMA 756; 10 PANAMA 29

CLASSIFIED BY: Stephenson, Ambassador; REASON: 1.4(B), (D)


1. (C) Panama's Supreme Court has voted 5-4 to temporarily suspend
Attorney General Ana Matilde Gomez pending trial on a charge of
abuse of authority. Removing Gomez became feasible only after
President Martinelli appointed two new justices to the court last
month who were widely viewed as personally beholden to the
President (Ref A). The move has been expected for some time (Ref
B) but was executed with surprising swiftness during a four-day
span while Martinelli and top cabinet officials were out of the
country. A constitutional debate over who has the authority to name
Gomez's interim replacement - Gomez or the executive branch - has
arisen and is serving as a proxy for the larger conflict between
Martinelli's quest for control of the government versus the
development of robust democratic institutions in Panama. Both the
Attorney General and the President have nominated separate
replacements. Despite the GOP's attempts to distance Martinelli
from the court's decision, his immediate proposal of a replacement
has prompted questions about his role in the ouster of the AG.
Press coverage has been very negative, and civil society is again
protesting what it sees as an attack on democracy by the executive
branch. End Summary.

It's Not What You Know, It's Who You Know

2. (C) Notionally, the court's suspension of Gomez is temporary.
However, it appears unlikely that she will retain her post for the
remaining five years of her ten-year term, regardless of the merits
of the case against her. Ex-Supreme Court Justice Edgardo Mola
stated in the daily Panama America that "Everything seems to
indicate that we are facing a political verdict by the Supreme
Court...this smells final to me." Despite the fact that abuse of
authority is not a felony - which is the constitutional threshold
allowing the court to remove a sitting Attorney General - the court
ordered her suspended by a 5-4 margin. The five justices voting in
favor of suspension were a combination of appointees from the
Mireya Moscoso administration (her Panamenista Party is now in the
governing coalition) and two of Martinelli's new picks, Alejandro
Moncada and Wilfredo Saenz, who was acting in his capacity as an
auxiliary justice in place of the recused justice Jose Abel
Almengor (Ref A). The four dissenting justices were opposition PRD
appointees. Three of the opposition votes were abstentions,
meaning that the court must wait one week to formalize its

3. (C) The two votes from Moncada and Saenz were critical, as the
justices they recently replaced, Esmerelda De Troitino and Adan
Arjona, were considered by post to be the most ethical and
competent justices on the court. Of the suspension, Troitino
commented in daily La Prensa that " I did not expect this decision.
A petition for separation from the post (of AG) should have a
foundation in law and in justice, elements that involve a certainty
that a crime was committed. I don't see what the judicial argument
is that the Attorney General has committed a crime. This is the
chronicle of a death foretold. The truth is, I am glad I'm no
longer there. Twisting the's a shame."

Out of Touch in Davos - and at Home

4. (C) In addition to the suspension, the court ordered Gomez not
to leave the country, again unusual for a non-felony case.
Meanwhile, many top officials of the Martinelli administration were
abroad when the decision was announced: President Martinelli and
Vice President/Foreign Minister Juan Carlos Varela were in
Switzerland attending the World Economic Forum, while Minster of
Economy and Finance Alberto Vallarino and Minister of Commerce
Roberto Henriquez were elsewhere in Europe on official business.
Minister of the Presidency Demetrio "Jimmy" Papadimitriu was
"Acting President".

5. (C) The absence of cabinet ministers became an issue when the
focus shifted to the debate about Gonzalez's interim replacement.
Immediately after her suspension, Gomez named auxiliary prosecutor
Luis Martinez as acting Attorney General. At the same time that
she was announcing that Martinez was taking over, the presidency
released a statement naming Giuseppe Bonissi as the replacement AG.
The press has jumped on the executive branch's move, questioning
how the cabinet named Bonissi when they were not able to meet to
discuss the choice, as is required by the constitution.
Papadimitriu scrambled to justify the odd timing and method of
Bonissi's selection, acknowledging that the cabinet had not met but
that President Martinelli had designated Bonissi "from abroad".
The full cabinet is to take the issue up when they meet Tuesday,
February 2nd.

6. (C) Should the cabinet sanction the choice of Bonissi, however,
they must still submit his name to the National Assembly for
approval on two separate occasions, once in committee and once
before the plenary session. This would theoretically have to be
accomplished in four days, before Gomez's suspension becomes
official. Further casting doubt on the actions of the executive,
notes La Prensa, is their use of the term "suplente" or auxiliary,
to describe Bonissi. This term was removed from the constitution
in the reforms of 2004, leaving unclear what role the President's
office expected Bonissi to fill.

Constitution a Proxy for Wider Battle

7. (C) The constitutionality of the inner workings of the cabinet
have received less attention than the controversy surrounding what
some call conflicting passages in the document itself. According
to Article 224, the Attorney General has the authority to name an
interim replacement, while article 200 says that the cabinet and
President have the right to name the (presumably permanent)
Attorney General. Constitutional scholar Carlos Pedrischi declared
that there is no conflict in the constitution and that the choice
is Gomez's to make. Pedrischi reasons that the section of the
constitution that allows the AG to name a temporary replacement
specifically addresses the situation in which the country now finds
itself. The president of the Panamanian bar association concurred
with Pedrishci's assessment, noting that the board of directors of
the bar would be issuing their opinion on the matter.

8. (C) The constitutional struggle to name a successor serves as
proxy for the larger battle; in effect, focusing on the
constitutionality of a seemingly minor point allows the press to
sound the alarm about the systemic threat to Panamanian democracy

in the only way they currently can while still reporting straight
facts. The editorial pages have been more explicit in denouncing
what has been seen as a concerted campaign by Martinelli to
undermine independent institutions, including the Controller
General, the Supreme Court and now the Attorney General. The
appointment of the two new justices, Almengor and Moncada (Ref A)
was seen as key, as the court has the power to legitimize any
actions by the executive as he focuses the machinery of the state
on other institutions and political opponents.

Opposition Pipes Up

9. (C) The opposition PRD stirred to life to comment on the crisis,
with Balbina Herrera, loser to Martinelli in the presidential
election last year, describing Martinelli in a radio interview as a
"Chavez of the right". Martinelli's predecessor, Martin Torrijos,
said that "when politics becomes judicial, then justice ends up
politicized, and society and democracy lose in the conjunction."
Even Martinelli advisor Jose Blandon Sr. voiced disapproval,
saying "Today's judgment reflects a politicization of
justice....this is the beginning of the end of institutions in this
country". Partido Popular president Milton Henriquez, brother of
the commerce minister, told Poloffs the day before the firing that
he thought Gomez would survive her travails. When he was proven
wrong the next day, he said that the suspension "reaffirms the
perception that the judicial branch is manipulated by outside
powers that want to take control of the Attorney General's office."

10. (C) Referring to the fragility of the Panamanian state, Former
Ambassador to the U.S. Federico Humbert Arias said in an editorial
in the leading daily La Prensa titled 'Where is Panama?' that "the
storm we see coming, as a result of the hammer with which the
executive has attacked the judiciary -causing serious fissures - is
worrying." Humbert went on to question what he characterized as
the absence of civil society and the main opposition party, the
PRD, as well as a lack of associates and friends near to the
president willing to speak out. He singled out Minister of
Government and Justice Jose Raul Mulino in particular, as one who
fought "man to man" against the military dictatorship in the

11. (C) Civil society has not been able to effectively counter
Martinelli and in general seems reluctant to act, or resigned to
accept, the gradual erosion of independent institutions . However,
Polcouns was informed by prominent civilista Aurelio Barria that
there will be large demonstration February 3rd . "You will be
surprised by how many people will come" to a demonstration planned
to take place in front of the Attorney General's office, according
to Barria. (Comment: We do not predict a large turn-out, as we
believe Martinelli's reputation of punishing people by going after
their core economic interests - cancelling government contracts,
sending MEF auditors to their businesses, etc. - is an effective

12. (C) Gomez was relatively popular with the public but does not
enjoy an unblemished reputation and her effectiveness has been
widely questioned among civil society, even by longtime supporters
like professor and journalist Miguel Antonio Bernal, her former
mentor. Bernal told Polcouns that Gomez should be replaced for her
failings and there were many legitimate reasons to remove her, but

that this was not the right way, and that removing her now was
counterproductive in building Panamanian institutions.
Nonetheless, she has become a symbol of institutions under siege,
and has hinted that she may take her case to international fora
such as the Inter-American Court of Human Rights.


13. (C) Leading editorials have argued that Martinelli's actions
show he doesn't understand the basic tenets of democracy. They
express real concern that Martinelli is running the campaign to
remove Gomez as part of his goal to eliminate any independent
person or institution capable of checking his power. It now
appears as though he really believed the he could simply name
Bonissi as the new AG, without anyone noticing or caring.

14. (C) The costs to Panama of such actions are not likely to be
confined to institutional or constitutional problems. With the
deterioration of Panama's judicial independence and a lack of
ability to enforce contracts, Panama's business and investment
climate will suffer. We have seen in other countries in the region
how deteriorating faith in democratic institutions has given rise
to populist leaders who work to further erode those institutions as
checks and balances. We will coordinate closely with WHA on
appropriate ways to signal USG support for strong democratic
institutions. As a modest first step, we propose declining an
invitation for an embassy officer to speak at an upcoming
conference aimed at increasing American investment in Panama - and
explaining to the GOP why we are not currently able to champion
Panama as a great place to invest.