Frank De Lima in his days at the top — but he didn’t play the part of in-crowder or flaunt new wealth like other former top officials caught up in the scandals about overpriced purchases through the National Assistance Program Supreme Court wheels grind against Ricardo Martinelli, Frank De Lima goes to jail after face-to-face encounter with his former number twoPAN scandal grows by the day

 

by Eric Jackson

 

The government buys something in bulk at a price that the ordinary consumer would know is way too high even from a retail perspective, with parties to the transaction flaunting new-found wealth — THAT’S a scandal that people without a lot of education can understand. The law requires the legislature to approve all such no-bid transactions in the amount of $300,000 or more, but the Ministry of Economy and Finance issues a series of transfers for $299,000 to avoid that requirement — that’s also something to make the ordinary person suspicious.

 

Were Frank De Lima to be possessed of brand-new mansions and new cars worth far more than most rich people’s homes, or to have bank accounts stuffed with millions that he can’t explain, he’d fit the profile. But if such exist they haven’t been found. And looking through old photos from the Martinelli administration, you see certain ministers again and again, buzzing around the ex-president, struggling to get in the picture, laughing at Mr. Martinelli’s jokes. You look in vain to find such obsequious poses by former Minister of Economy and Finance Frank De Lima.

 

Still, from documentary evidence that came out in cases before the Electoral Tribunal that began shortly after last year’s elections, you know the man’s going to be in trouble. In the few weeks before the voting, he signed hundreds of millions of dollars worth of transfers, many for legislators’ circuit funds, and what the country saw for it was Martinelista candidates and their crews distributing bags of food, building materials, sometimes new houses or cars, sometimes scholarships for the most unworthy of students, sometimes checks made out to cash, all to buy votes. The former minister may say that it can’t be proven beyond a reasonable doubt that he knew where the money would eventually go, but the also former chairman of the Inter-American Development Bank board of directors is neither stupid nor naive. So why isn’t De Lima in jail for election crimes? At the moment a Ricardo Martinelli appointee who refuses to enforce the law is the Electoral Prosecutor. The criminal charges against THAT guy are proceeding slowly.

 

It’s the purchase of grains at several times the market retail price by the National Assistance Program (PAN) — for school lunches, disaster relief and apparently in the end also those food bags that the Cambio Democratico ward heelers were passing out — that landed De Lima in jail. Much of the documentation for that is missing, and De Lima denies authorizing a series of $299,000 transfers to the PAN for these purchases. Who else might have approved? It would have been the vice minister, Gladys Cedeño. She testified to prosecutors that she didn’t have that authority and did not approve the transfers. According to La Prensa prosecutors set up a 15-minute confrontation between the two, after which De Lima was ordered jailed.

 

Martinelli’s case

 

Is there anybody who believes that Frank De Lima decided on his own that large sums of public money would be overspent through the PAN? The two former directors of that agency, both under arrest, say that orders routinely came to them from Ricardo Martinelli, through his personal secretary and now international fugitive from justice Adolfo “Chichi” De Obarrio. Former Minister of the Presidency Jimmy Papadimitriu, like De Lima a dual US-Panamanian citizen, has produced in his defense of other allegations a written order by Martinelli to sign whatever document is demanded. The head of it all was Martinelli and if he used De Obarrio as a disappearing cutout man, the impulsive former president wasn’t disciplined enough to keep himself entirely out of all pictures so as to let his fall guy take all flak.

 

So do we now hear Martinelli complaining from his Miami lair that prosecutors are blackmailing people to testify against him? We do, and except for Panama, with its tradition of impunity for those in high places, it’s a pretty standard prosecutor tactic to go after people lower down in a suspected conspiracy and have them tell tales about superiors.

 

That process is well underway against Ricardo Martinelli, who has been stripped of his multiple layers of immunity and is now the subject of criminal proceedings in the Supreme Court. It’s in the investigative phase now, without formal charges yet having been made. The first high court hearing since immunity was lifted took place on May 11. That was called for a series of defense motions, mostly to assert new claims of immunity and to allege that the statute of limitations had run out.

 

Magistrate Jerónimo Mejía blew off the attempts to dismiss charges urged by Martinelli’s battery of lawyers, ruling that only after magistrate Oydén Ortega, who is acting as prosecutor, has done his investigation and preferred formal charges would such motions be in order.

 

But Martinelli’s lead attorney, former attorney general Rogelio Cruz, brought up another matter. Cruz said that the first of the crimes allegedly committed by Martinelli took place in 2010, back when the inquisitorial rather than the present adversarial system of criminal procedure was in effect. Cruz urged the application of the old rules. It gets to a concept that’s well known in the Anglo-American Common Law system but not so much in the Civil Code family of legal systems, of which Panama’s is a part. As a matter of international and well nigh universal law, ex post facto criminal laws are condemned and prohibited. You can’t today pass a law that says that walking on the right side of the street is a crime and then bust someone for walking on the right side of the street yesterday. But that’s the substance of the law. In the Common Law you can change the rules of procedure such that someone who killed somebody two years ago might be tried under a set of rules passed one year ago. Application of substantive laws that were passed after the fact is barred, but not so with procedural laws. In the Civil Code system, this distinction is not so clearly made. Judge Mejía will likely rule on this point for Panama.

 

One thing that Mejía said that he would not do, however, was issue or decide not to issue a warrant for Ricardo Martinelli’s arrest. That’s a decision for the prosecutor, in this case Judge Ortega.

 

Taking new directions?

 

Can, or will, the news media drive some of this expanding scandal? Certainly prosecutors and complainants first learned about a number of things now at the center of court proceedings from press accounts. A newspaper story, however, is hearsay that in itself would generally not justify a formal investigation.

 

La Estrella is into a series of stories about how funds involved in the PAN scandal passed through or ended up an in a number of this country’s banks. If that becomes an issue for the legal system, power brokers to whom mere politicians answer could be implicated and the social consequences could be quite explosive.

 

Meanwhile at least two banks, Citibank and the Banco Nacional de Panama, have shut down Cambio Democratico party accounts. It’s in keeping with the principle that banks aren’t supposed to do business with what they suspect are criminal organizations. The party is complaining to the Electoral Tribunal, as it can have far-reaching consequences if private entities can shut down a political party by denying it financial services.

 

There has been a Panameñista Party proposal to the National Election Reform Commission to revoke the registered political party status of any organizations whose leaders have been convicted of major crimes. Unless it were refined, such a rule could turn a garden variety political scandal into a shakeup of the nation’s party system. But by the terms of Panama’s present anti-gang laws, Cambio Democratico is as arguably an illegal association for the purpose of committing crimes as any group of teenage youths who peddle dope on the streets and fend off rivals who would take over their turf.