Legal and political aftershocks of Electoral Tribunal’s Martinelli impunity ruling

From Ricardo Martinelli’s Twitter feed: most of his critics say similar things, but point in the opposite direction.

These may not be “after-effects” — Martinelli ruling
set off things that will have lives of their own

by Eric Jackson

Now isn’t THAT a bold statement: “In what was done by Magistrate María Eugenia López there is a hairy hand and electoral fraud.” So declared former president Ricardo Martinelli Berrocal’s legal team, two days before they filed criminal charges against the presiding magistrate of the Supreme Court with “persecution.” That is, “crimes against the administration of justice” and “crimes against public servants.” That is, in very short order, she accepted a constitutional petition from attorney Héctor Herrera, who challenged an Electoral Tribunal decision announced on March 23 wherein Martinelli was given candidate’s immunity for internal party elections in which he is not a candidate.

The litigation

Under Panama’s constitution, Martinelli’s criminal charge against López was filed with the National Assembly and will be considered by its Credentials Committee. Is there a political deal in the works to “exonerate” Martinelli along with all legislators accused any sort of corruption? We shall see. She is, however, a Nito Cortizo appointee and has a long and honored career on the bench. Part of that career was some pioneering work in domestic violence cases and policies. To put her on trial before the legislature would tear the PRD apart and would be the occasion for a vast women’s mobilization.

The Electoral Tribunal based its decision upon the supposition that Martinelli enjoys “specialty” immunity from prosecution from his extradition by the United States and various subsequent rulings acquitting him of charges from his electronic eavesdropping activities against many Panamanians. The key decision in the eavesdropping case was a “trial” in which the Supreme Court had sent down stacks of evidence to the lower courts and the lower court threw out that evidence on strange procedural grounds.

In any case, the principle of specialty in extradition generally provides that if someone is extradited for one crime, she or he may not be tried for another crime committed before the extradition without, once the matter for which the defendant was extradited has been resolved, being given the opportunity to return to the jurisdiction from whence extradited. Were Ricardo Martinelli to return to the USA, there can be little doubt that there is a sealed indictment for laundering the proceeds of Odebrecht bribes awaiting him there. His two sons have pleaded guilty in a Brooklyn federal district court to this and have in open court implicated him in the scheme.

In international law the question of who gets to assert specialty clauses is controversial. One stream of cases says it’s the extraditing country. As to Ricardo Martinelli, US authorities say that it does not apply. But might Panama decide that specialty is a defense personal to the accused, such that what the United States says doesn’t matter? It might. But then they’d have to get to the grounds for extradition. The 1904 US-Panamanian extradition treaty has a specialty clause, but the 2001 Budapest Cyber Crimes Convention that was also part of Panama’s extradition request for Martinelli has no such clause, and arguably rejects the notion.

A knotty bit of criminal law? But where is the Electoral Tribunal’s jurisdiction to decide any penal matter other than a specific electoral crime? THAT’S the constitutional issue that’s being raised in all of the criticism of and legal challenges to the Martinelli candidate’s immunity ruling. The charge is that two out of the three Electoral Tribunal magistrates exceeded their jurisdiction by intruding into the legal bailiwick of ordinary criminal justice.

The practical matter? In May there is a pretrial hearing for the New Business case, in which it is alleged that Martinelli and 20 other people are accused of a money laundering scheme. In that arrangement overpriced public construction contracts were made, with payments to the contractors run through a “factoring” company called New Business. Kickbacks for Ricardo Martinelli front people, it is alleged, were extracted from these and the graft money was used to buy the EPASA newspaper chain — Critica, El Panama America and Dia a Dia — which forms the nucleus of a larger Martinelli media empire and is a political tool that the former president uses. So if Martinelli has candidate’s immunity because he called internal RM party elections in which he will be unopposed, he would be immune for the May pretrial and that and the October trial would probably have to be postponed.

The same delay would apply to the Odebrecht bribery and money laundering trial, in which Martinelli former president Juan Carlos Varela and some 50 other defendants are accused. In that case the pretrial would take place in July and the trial in November.

Panamanian criminal law has no tolling provision on its statutes of limitations. The defendant who can deploy legions of lawyers, go on the lam and otherwise delay a case until the statute of limitations has run gets away with whatever crime, except for things like murder in which there is no time limit on prosecution.

The New Business case would be barred by the statute of limitations in March of next year. The Odebrecht affair would be less amenable to being time-limited out if treated as an overall bribery scheme that ended only in 2019. It might even be argued to be a still-continuing conspiracy, in which assets are still squirreled away and moved around. But at least some of the defendants would want to argue that each offense be treated as different, so if, for example, he or she took a bribe in 2004 it’s too late to bring the case to trial now.

It’s not a secret that Martinelli and his teams of lawyers play delay games. There is in effect no disbarment of attorneys in Panama, so lawyers can and often do create delays in bad faith without fear of unpleasant consequences.

And Team Martinelli howled in protest when Magistrate López reviewed and researched Héctor Herrera’s petition for two hours, promptly asked acting attorney general Javier Caraballo for his opinion — which is that Martinelli isn’t protected by specialty — and accepted the case for the high court’s docket. There are two other constitutional challenges of the same Electoral Tribunal decision pending before other magistrates who might accept or reject the petitions. Ordinarily, all petitions that are accepted would go before a nine-member Supreme Court plenum (perhaps with some alternates sitting in for magistrates for one or another reason), and decide the case. If they find that what the Electoral Tribunal did was beyond its jurisdiction, Martinelli’s specialty defense is defeated. Surely, however, it would be repeatedly raised again just to cause delays. The May and July pretrials, and trials later this year, would likely go on.

If Martinelli prevails and is given impunity, the proceedings as to all the other defendants might still go on. There are already people who have pleaded guilty and turned state’s evidence in both cases, so would an overall conviction, minus Martinelli, in the New Business case result in the state seizure of the EPASA newspaper chain, as purchased with stolen government funds? It gets complicated and that’s Martinelli’s purpose.

But López isn’t playing along, so Team Martinelli is accusing her of a crime for her celerity.

It’s not the first time that Martinelli et al have called María Euginia López a criminal. The last time they charged persecution was in 2020 when she ruled against the former president in another matter. That case went nowhere.

To extra-added complicate the legal matters? There are also two other criminal complaints, against the two Electoral Tribunal magistrates who ruled in favor of Martinelli. The charges are exceeding their powers in official acts, which is a crime here. Any trial of such charges would take place before the Supreme Court at the tribunal of first instance. Would a conviction be appealable to the Inter-American Human Rights Court? It might be supposed so, but this has never happened and that regional body might well rule that the jurisdiction of Panama’s Electoral Tribunal is not a matter of human rights law that it would take up. 

The politics

Ricardo Lombana, who ran for president as an independent and finished third in 2019, has formed a political party, the Movimiento Otro Camino (the Other Road Movement) and is talking basic good government stuff that has allowed the party to qualify for the 2024 ballot. They just elected delegates to their first party convention, which will happen in May. Will they, at that convention, adopt rules to encourage independents of many sorts to run on their ticket if they can get past a primary? That’s what former tourism minister and entertainer Rubén Blades has advocated.

More recently, most of the National Assembly’s independent caucus has called for a “Vamos” (Let’s go) coalition of independent candidates for 2024.

As present election rules go, political parties may not form alliances with independent candidates, although they may do so with other parties as to some or all of their candidates.

Our present constitution, adopted in 1972 under the military dictatorship, supposes disciplined political parties that get shares of government funding to pass around based on how many votes they get at election times. They rarely actually say so, but all of the established political parties are used to and support this system. It’s unpopular with the electorate at large if they are asked about it, yet there are expectations that candidates will come around with goodies before the voting and that those who get elected owe it to their families to get as many of their relatives as possible on the government payroll.

Former National Police director, attorney, sometimes journalist, and a Civilista way back when Ebrahim Asvat opines that there are “moralizing” political forces like Otro Camino and Vamos that arise from time to time on a cyclical basis and have a ceiling of some 20 percent of the electorate. So goes a version of the ‘don’t waste your vote’ argument — which might work better if there were a major party or party leader who unmistakably stands for something that people want.

And then in the Twitterverse, the troll armies that have invested a lot of energy into satanizing various others are trying to associate some or all of the new forces with those previously cast as the devil incarnate. A lot of this is of the religious far right, some of it is thinly veiled antisemitism about supposed rich Jewish puppetmasters, all of it appears to be aimed at suppressing any new forces. There are usual suspects with troll armies that we have seen before.

THEN the question becomes whom the voters hate more. Will those who put their votes in the box the next time around despise or fear the upstarts the most, or will they vent their wrath at the establishment? At the moment it appears that this is the format of campaigns to come, because nobody’s positive program of action has captured the public imagination.

A number of recent polls suggest that Ricardo Martinelli might win the presidency back with about one-third of the vote. Both polls and electoral history suggest that the PRD won’t repeat in the presidency. Fragmentations and uneasy alliances among established forces are ever-present possibilities. Then there is the possibility that Martinelli will be a convicted criminal who’s ineligible to run for president the next time.

The real kicker lurking out there? That, as about half of the people belong to no party and people join and leave parties based not on belief systems but on the perceptions of personal gains or losses, what will be decisive are momentary transactional calculations. Some will support the apparent front runner, thinking that there will be advantages for siding with the winner. “Front runner” may not ever be about presidential politics, but the local politicians — voting decisions not based on who might be president but who might be representante. A gift before the vote may count for much more than a promise of what will be done after Election Day.

And how might the current battle over Martinelli having or not having immunity from criminal prosecution play into that? Whether and how it gets resolved would have much do do with perceptions. But the way it looks now, the system is broken on every level and in every branch of government, such that anybody counting on anything from any sort of next government would seem imprudent. So many people don’t want to be called a pendejo, and will go through interesting contortions to avoid it.

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