Cablegate: Panama's Supreme Court Chief Justice Cesar

This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 02 PANAMA 002533

SIPDIS

SENSITIVE

DEPT. FOR WHA/CEN
SOUTHCOM ALSO FOR POLAD

E.O. 12958: DECL: 11/12/2014
TAGS: PGOV KJUS PINR PM POLITICS FOREIGN POLICY
SUBJECT: PANAMA'S SUPREME COURT CHIEF JUSTICE CESAR
PEREIRA: SHOULD HE STAY OR SHOULD HE GO?

REF: A. PANAMA 1274
B. PANAMA 823
C. PANAMA 200

Classified By: Ambassador Linda E. Watt for reasons 1.4 (b) & (d)

THE CONSTITUTION OR THE LAW - WHICH COMES FIRST?
--------------------------------------------- ---

1. (C) Controversy continues to swirl around the issue of
whether Panama's Supreme Court Chief Justice Cesar PEREIRA
Burgos must step down after turning 75 on September 23, 2004.
Comptroller General Alvin Weeden and numerous Pereira
opponents have insisted that Pereira should step down from
the Supreme Court. They rest their claims on a 1998 law
known as the "Ley Faundes," that requires all public
officials to retire upon turning age 75. On the other hand,
Pereira himself and many others note that Article 200 of
Panama's constitution grants a ten-year term to Supreme Court
Magistrates without mention of age. No law can trump the
constitution. Many Panamanians who consider Pereira a
corrupted troglodyte would love to see him go, as would
President Torrijos' Democratic Revolutionary Party (PRD),
since Pereira is a Moscoso appointee. Representatives of the
Executive Branch recently punted the issue to Solicitor
General Alma Montenegro de Fletcher (a founding PRD member),
requesting that she opine on the applicability of the Ley
Faundes to Pereira. Fletcher has stated that the Ley Faundes
should apply to all public servants, without exception. But
Pereira hasn't shown any signs of leaving. At the same time,
contrary to Montenegro, the Labor Committee of the
Legislative Assembly is discussing reforming the law to
exclude public officials with a constitutionally-mandated
term. Meanwhile, the presidency of the Supreme Court, one of
the most important positions in the Panamanian government,
and one of the most coveted prizes of political patronage,
hangs in the balance.

REROUTING THE PROBLEM
---------------------

2. (C) Opponents claim that the Torrijos administration's
posturing on the separation of powers is insincere. No one
contests that Pereira's exit from the Supreme Court could
pave the way for a PRD appointment, allowing President
Torrijos to tip the balance of the Court in favor of his
party. (Pereira is one of five Moscoso appointees on the
nine-member Supreme Court.) Minister of the Presidency
Ubaldino Real deferred to the Solicitor General when queried
by the press on the Torrijos administration's position
regarding the applicability of the "Ley Faundes" to Pereira.
Granted, say Torrijos' opponents, Alma Montenegro de Fletcher
has a positive reputation for objectivity, but she also is a
founding member of the President's political party.

3. (SBU) The entire debate may end up without result.
Popular Party legislator Jorge Hernan Rubio, elected as
Second Vice President Ruben Arosemena's alternate, has
proposed revising the "Ley Faundes." Another Popular Party
leader, Presidential Goals Secretary Ebrahim Asvat already
pointed out that that since the constitution imposes no limit
on the age of Supreme Court appointees, thus, there can
logically be no maximum age either, but clarified that the
judicial branch has the final say. Legislator Rubio's
proposal would clarify that the "Ley Faundes" does not apply
to public officials whose term is fixed by the constitution.

COMMENT: THEN AND NOW
---------------------

4. (C) As applied in the past, the "Ley Faundes" (Law 61 of
1998) seems more a tool of political expediency than anything
else. Legal scholars argue that even the law's namesake,
former Supreme Court Magistrate Jose Faundes, who had a
penchant for the ponies and a known drinking problem, left
because he was sick, not in compliance with the law. Marine
biologist Carlos Arellano Lennox was the most recent case
study even though President Moscoso appointed him as Director
of Panama's Environmental Authority (ANAM) well after his
75th birthday. Rumor has it that Moscoso chose to remove
Arellano after only three weeks on the job after he refused
to approve a shoddy environmental impact assessment of her
controversial "Camino Ecologico" road project that was to be
built through a national park in Panama's westernmost
province of Chiriqui.

5. (C) La Prensa published a scathing editorial on October
10 by its founder I. Roberto Eisenmann, Jr. on the Supreme
Court. Eisenmann states unequivocally that Magistrate
Pereira must obey the law pointing out that Pereira himself
has imposed on others in the past who challenged its
constitutionality. To many critics of Panama's judicial
system, revising the "Ley Faundes" as Legislator Rubio has
proposed would send the wrong message, leaving Magistrate
Pereira and his colleagues "above the law" while civil
society clamors to reduce the privileges and immunities of
top public officials.

6. (C) Since President Torrijos took office on September 1,
Panamanians have speculated about how he would get rid of
Moscoso's least-liked and most criticized appointees,
including Cesar Pereira, Winston Spadafora, and Alberto
Cigarruista. (NOTE: An allegation that PRD legislators were
paid off to approve the Spadafora and Cigarruista
appointments has not been proven. END NOTE.) The entire
Torrijos administration has been very careful not to overtly
violate the separation of powers despite the de facto synergy
between the PRD executive and the PRD legislative majority.
No matter whether Pereira stays or goes, to boost the
rock-bottom credibility of Panama's highest court, President
Torrijos must appoint Supreme Court magistrates who are above
reproach. Assuming that Pereira will stay, as he shows every
sign of doing, Magistrate Arturo Hoyos' December 2004
departure when his ten-year term ends will be an early test
of Torrijos' resolve to make good his campaign pledge of
depoliticizing Panama's highest court.

7. (C) In private conversations with the Ambassador,
President Torrijos and senior members of his cabinet have
repeatedly expressed their high level of frustration with the
Supreme Court. The President is clearly considering options
as to how to ease out at least some of the most controversial
justices. As the new government struggles to investigate the
well-covered tracks of Moscoso administration corruption, the
tawdry state of the Supreme Court impedes serious judicial
consideration of these and other corruption cases.
WATT

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