Politicians’ impunity laws being rolled back

Sequel to Martinelli’s and Robinson’s failed bid to take over the National Assembly (1)

Statute of limitations for corrupt pols raised, time limits on investigations challenged

by Eric Jackson

On July 23 the National Assembly passed Bill 149, an amendment to the Code of Criminal Procedure that repealed Ricardo Martinelli’s 2013 law that halved the time for the statute of limitations to run for theft of public funds, unjustifiable enrichment while holding public office and diversion of public assets to private uses. As with most crimes — the main exception being murder and offenses deemed crimes against humanity under international law for which there is no statute of limitations — the period in which charges had to be brought for these crimes commonly committed by public officials was (and will again be) twice as long as the maximmum penalty for the offense. The law restoring the old statute of limitations is likely to be signed by President Varela.

So does this aggravate the potential legal woes for Ricardo Martinelli and his minions, or would it just apply to future crooks in high places? If there is to be any retroactive effect, it will not apply to cases already decided, nor those cases that are now in the processes of investigation or trial. But what about a theft of public assets that happened in 2013 which has yet to be formally investigated? Lawyers will surely argue about that one. In the Anglo-American Common Law system there is a fairly clear line about ex post facto laws: procedural laws can be retroactive, but substantive laws can’t be. The norm in that system is that statutes of limitation are substantive and can’t be changed retroactively to the detriment of the accused. But the Civil Code family of legal systems, of which Panama is a part, does not make this distinction between procedural and substantive. Already Ricardo Martinelli’s lawyers have been skirmishing in the Supreme Court over whether the new accusatory system of criminal procedure or the old inquisitory system will apply in his cases. Those issues have yet to be decided.

Meanwhile another of Martinelli’s impunity for politicians laws is under constitutional challenge in the Supreme Court. That 2012 law provides that when legislators — or in Martinelli’s case, members of the Central American Parliament — face trial before the Supreme Court, the investigation must be concluded within two months of the appointment of an investigating magistrate. For anyone else accused of a crime and facing ordinary criminal processes, that period is ordinarily one year. Supreme Court magistrate Oydén Ortega, who has been assigned the prosecutor role in the case of no-bid contracts with kickbaks in the purchase of dehydrated foods for school lunch programs, moved on July 2 for the assigned judge, Jerónimo Mejía, to grant him a 30-day extension of the time to finish his investigation and at the same time interposed a constitutional challenge to the shorter time given for investigating legislators. The case is on hold while the high court decides if the 2012 law is constitutional.