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### Viewing cable 10PANAMA43, Martinelli's Wish is Supreme Court's Command: Attorney

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
10PANAMA43 | 2010-02-01 23:11 | 2011-04-07 00:12 | CONFIDENTIAL | Embassy Panama
Appears in these articles: http://www.padigital.com.pa/periodico/edicion-actual/wikileaks-panama-interna.php?story_id=1027140&codeth=1593

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    VZCZCXYZ0000
    RR RUEHWEB

    DE RUEHZP #0043/01 0322311
    ZNY CCCCC ZZH
    R 012311Z FEB 10
    FM AMEMBASSY PANAMA
    TO RUEHC/SECSTATE WASHDC 0375
    INFO RHEFDIA/DIA WASHINGTON DC
    RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC
    RHMFISS/JOINT STAFF WASHINGTON DC
    RUEAIIA/CIA WASHINGTON DC
    RUEHBE/AMEMBASSY BELMOPAN 0017
    RUEHBO/AMEMBASSY BOGOTA
    RUEHCV/AMEMBASSY CARACAS
    RUEHGT/AMEMBASSY GUATEMALA
    RUEHLP/AMEMBASSY LA PAZ
    RUEHME/AMEMBASSY MEXICO
    RUEHMU/AMEMBASSY MANAGUA
    RUEHSJ/AMEMBASSY SAN JOSE
    RUEHSN/AMEMBASSY SAN SALVADOR
    RUEHTG/AMEMBASSY TEGUCIGALPA 0071
    RUEHZP/AMEMBASSY PANAMA
    RUEKJCS/SECDEF WASHINGTON DC
    RUMIESS/SOUTHCOM IESS MIAMI FL

` `

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

    SIPDIS

    E.O. 12958: DECL: 2020/02/01
    TAGS: PGOV PINR PM KJUS
    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)

    Summary

    ¶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
    decision.

    ¶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 law...it'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
    1980's.

    ¶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
    deterrent.)

    ¶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.

    Comment

    ¶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.
    STEPHENSON

`