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C O N F I D E N T I A L PANAMA 000749 
 
SIPDIS 
 
E.O. 12958: DECL: 09/17/2018 
TAGS: PGOV PM PREL PTER VE
SUBJECT: PANAMA: DETAILS OF PARDON REVOCATION FOR POSADA 
AND 181 OTHERS 
 
REF: A. A. PANAMA 542 
     ¶B. B. PANAMA 556 
 
Classified By: Classified by POLCOUNS Brian R. Naranjo for Reasons 1.4 
(b) and (d) 
 
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SUMMARY 
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¶1. (U) Post acquired a copy of the June 30 Supreme Court 
ruling that revoked the pardon of Luis Posada Carriles - who 
is accused of plotting the assassination of Fidel Castro - as 
well as three of Posada's accomplices and 178 others.  The 
Panamanian Supreme Court acted to overturn what they saw as 
an Executive action that was outside the scope of the 
Executive's power to pardon individuals for "political 
crimes."  The ruling overturned Executive Decrees No. 317 of 
August 25, 2004, No. 318 of August 26, 2004 and No. 321 of 
August 30, 2004, which pardoned a total of 182 persons for a 
variety of crimes. 
 
--------------------------------- 
Pardons for Political Crimes Only 
--------------------------------- 
 
¶2. (U) Former President Moscoso and Arnulfo Escalona Avila, 
ex-Minister of Government and Justice, violated Article 179, 
Number 12 (now Number 184) and Number 22 of the Constitution 
by ignoring the fact the President is given the power to 
pardon only for "political crimes" and not for "common 
crimes," according to the ruling.  For common crimes, the law 
specifically allows the Executive two avenues:  reduction of 
sentence and a decree granting parole.  Many of the 
individuals who received pardons included in the three 
decrees had been accused or convicted of common crimes, 
according to former Solicitor General Alma Montenegro de 
Fletcher, whose counsel is quoted in the Court's opinion. 
Further, Fletcher characterized the pardons as given in a 
"abusive and indiscriminate" manner. 
 
¶3. (U) The ruling acknowledged that the law did not include a 
clear determination of what should be understood as a 
"political crime," but proceeded to interpret them as:  1) 
crimes against the State's "internal legal capacity;" and 2) 
electoral crimes.  They cited an extensive list of crimes 
that were not political crimes, including the possession of 
explosives, one of the charges against Posada. 
 
------------------------ 
Pardoned Without a Crime 
------------------------ 
 
¶4. (U) Some individuals pardoned by former President Moscoso 
had been neither accused nor convicted of a crime at the time 
of the pardons.  The ruling notes that in order for there to 
be a pardon, had to have been a crime and a condemnation, so 
any pardons given to non-guilty persons were thus invalid. 
Further, the ruling pointed out that to pardon individuals 
before conviction would be to characterize them as "political 
delinquents pardoned by the Executive Brach," a violation of 
their rights to a presumption of innocence. 
 
------------------------------------ 
"Original state" not Double Jeopardy 
------------------------------------ 
 
¶5. (U) The ruling has a "retroactive effect" and should 
restore each case at issue to the "original state" in which 
it was found at the time of the pardons, but not necessarily 
include a new legal process for the same criminal action. 
All legal processes that had resulted from the pardons did 
not have legal support and all legal processes as well had to 
return to their "natural state."  The ruling directly 
addresses the issue of double jeopardy, stating that because 
the pardons were unconstitutional, returning the cases to 
their "original state" does not constitute double jeopardy. 
Article 32 of the Constitution says that no one shall be 
judged "more than once for the same criminal cause." 
Additionally, under Panamanian law, an Executive pardon 
forever extinguishes both the criminal act and the punishment 
 
in the eyes of the law.  However, the ruling states that it 
"restores the procedural situation of those pardoned to the 
natural state they were in" before the "unconstitutional 
nullity" (the pardons) took place.  Thus, in the opinion of 
the Court, this decision does not violate double jeopardy 
because the pardons violated the Constitution. 
 
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COMMENT 
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¶6. (C) The ruling reads as a clear attempt by the Court to 
assert control over a out-of-control President who abused her 
power to pardon.  The large number of persons pardoned in 
three different waves, for a large variety of crimes, and 
some pardoned from no crime (or accusation) at all, clearly 
raised the Court's concern.  There is no indication in the 
ruling that the Court wished to single out Posada, his 
accomplices, or any other pardoned individual.  Posada is not 
mentioned at all except in a listing of pardoned individuals. 
 A copy of the ruling in Spanish can be obtained by sending 
an e-mail to Kellee Farmer at farmerk@state.gov. 
MESA