News

Varela makes his high court nominations

December 16, 2017

her — Labor unions, the left, environmentalists and Panama’s indigenous nations will by and large dislike this Supreme Court appointment. But the attorney who filed the fraudulent environmental impact statement for the Barro Blanco Dam was quick to voice his support.

Varela’s high court nominations leave too little time to investigate

by Eric Jackson

It’s a political game unrestricted by any established customs or norms of legislative diligence. Presidents, with only narrow requirements about whom they may appoint to the Supreme Court, choose the people they want and only rarely is it so outrageous that the nominees do not get approved. To reinforce that, one habit that has become well nigh customary is that nominations to replace magistrates whose terms end with the year get made in December and considered in special legislative sessions wedged in among the holidays. Investigations? Forget about any that get into much depth. Debate? It’s usually a matter of who has or does not have the vote, with lowbrow “gotcha” objections and little or no discussion about the crisis in Panama’s legal system.

And so it seems now. President Juan Carlos Varela appointed his two hoped-for replacements for the last two Martín Torrijos appointees on the high court, Jerónimo Mejía of the criminal bench AND Oydén Ortega of the civil bench. Varela wants anti-corruption prosecutor Zuleika Moore Gouldbourne and corporate lawyer Ana Lucrecia Tovar de Zarak, respectively, for these posts. Moore is something of a public figure and to most Panamanians’ knowledge Tovar is not, and in each case that may be a problem.

Moore has been handling many high-profile corruption cases — and in many cases losing them. Most notoriously, judges have shut down her investigation of the Odebrecht scandals. Whether one wants to believe it a matter of corrupted courts, incompetent prosecutors or laws designed to encourage public corruption (or a combination of these things, as it probably is), even were the National Assembly inclined to establish the truth of the matter they are not given the time to do so.

Moore has worked as a prosecutor since 1992. A graduate of the law school at Panama’s Catholic university, USMA, she was a juvenile prosecutor for Guna Yala and Colon, then rose to be chief prosecutor in Colon before being named anti-corruption prosecutor.

Dionicio Rodríguez, the president of Panama’s largest bar association, the Colegio Nacional de Abogados, told Ricardo Martinelli’s newspaper, El Panama America, that he and the colegio’s board oppose Moore’s nomination. The specific reason Rodríguez gives is that she has apparently lost her most important case ever, the Odebrecht investigation. For their part, Martinelli supporters object to Moore as the conductor of a terrible witch hunt. Anti-corruption cynics consider that kicking Moore upstairs is a convenient way to end the Odebrecht probe, especially now that President Varela and his party have been named by multiple witnesses and documentary evidence as having taken money from the notorious Brazilian corporation. (Moore has not investigated Varela, as that would be under the jurisdiction of the National Assembly rather than the Public Ministry’s prosecutors.)

Tovar de Zarak is a partner in the Panama office of the Washington-based multinational offshore corporate law firm The Dentons. For them, she specializes in structuring deals for energy corporations. She is also an USMA graduate, with a master’s in banking and securities law from American University in Washington. In Martinelli times, from 2012 to 2014, she was president of the board of directors of the Securities Markets Superintendency (SMV). This was the time of the Financial Pacific and Martinelli insider trading scandals — to name only the two most notorious of several scandals under that organization’s supposed watch — and it was a time when one of their senior employees, securities analyst Vernon Ramos, was disappeared while investigating Martinelli’s insider trades in share of the parent company of the now abandoned Petaquilla gold mine. This reporter could find no published record of any expression of concern about the disappearance and probable murder of this top SMV employee by the nominee. Later, after having campaigned for Varela in 2014, Tovar was appointed to the board of the Banking Superintendency, while her husband, Ivan Zarak Arias, became vice minister of economy and finance. He quit the day before her nomination to the high court, and this is being turned into something of an issue by opponents from both the PRD and Cambio Democratico.

Family ties may, however, save Tovar from one of the more recent political splits here. The Independent Movement (MOVIN), backed by the Motta family, has fallen out with President Varela. But Tovar’s parents both worked in senior positions with Motta businesses and MOVIN leaders have praised this appointment to the high court. Tovar’s networking in the corporate world is deep. She’s an Aspen Fellow, a member of the Aspen Institute’s Central America Leadership Initiative and a member of the Aspen Global Leadership Network. Before working for The Dentons she worked for Citibank and the Fabrega Molino Mulino corporate law firm. As a grad student she was an intern with the OAS and more recently she has been a business dispute arbitrator with the World Bank.

From the legal profession the most salient criticism of Tovar’s appointment is that she lacks litigation experience.

From the world of politics the left dislikes the corporate paradigm for which she stands, the PRD tends to object to her for not being one of them and the Martinelistas look at her as a species of traitor for campaigning for Varela. From civil society activists who aren’t aligned with any of these factions, there is a suspicion that Tovar is a partisan appointee who will respond to Panameñista suggestions or manipulations.

The divisions as to Moore and Tovar promise to be different, but in neither case can it be automatically presumed that the same constellation of forces that have given Varela favorable majorities in the National Assembly will remain intact. But against those possible sets of divisions, there have always been legislators willing to vote for whatever person a president nominates for the high court, barring some terribly negative fact that goes way beyond allegiance to another party.