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In 2002, Panama became the first country in Latin America to put a law on the books guaranteeing open access to government records. Yet a law on the books is one thing and truly open access is another.
Fernando Berguido, the longtime president and editor in chief of La Prensa, Panama’s leading newspaper, and the former president of the Panama chapter of Transparency International, was among the journalists who pushed for the law.
In this excerpt from his memoir “Una vida postuma” ("A posthumous life”), published Nov. 20 by Circulo Editorial y de Lectura. Berguido, a 2011 Nieman Fellow, shows the difficulties of bringing transparency to Panama’s government. His story involves two 1986 Nieman fellows, Roberto Eisenmann, a co-founder of La Prensa, and Gustavo Gorriti, formerly an investigative reporter at the paper. The book is available at unavidapostuma.com and as an e-book on Amazon.com.
The title of the chapter is “A Ray of Light” (In Spanish: “Un rayo de luz entre las densas tinieblas”). June Carolyn Erlick translated this excerpt from Spanish:
Panama was ecstatic; democracy had become a fiesta: intense, highly participatory and peaceful campaigns in which hundreds of candidates from a dozen political parties sought every single vote in the country. On September 1, 1999, Mireya Moscoso, 53, took office as the first woman president of Panama with 42% of the votes.
Only the second election since the end of the country’s dictatorship, Moscoso not only personified the triumph of her gender, but also that of a woman who had directly suffered the consequences of the military dictatorship, including persecution and exile as the companion and later the wife of the political caudillo Arnulfo Arias, who had been deposed in a military coup.
With her public image as a woman versed in the struggle for democracy, Moscoso managed to recruit a group of people, many of them forged by the movement that combated the dictatorship, to support her plans for governing. They included three men with especially solid ethical and democratic convictions—Mario Galindo, Carlos Rodríguez and Roberto Eisenmann—who became ad honorem advisors.
President Moscoso’s first public slip was so innocent that it was attributed to inexperience and her desire to get along with legislators, since she did not have a solid majority in the Assembly. But time demonstrated that it was neither a matter of innocence nor of inexperience.
Here’s what happened: in December, when Moscoso had been in office for four months, she invited all the legislative representatives to a "Christmas and New Year’s lunch" at the Palace. After the lunch was over, each representative received a gift from the president.
Sixty-one of the guests were men. As they left the palace and opened the gift boxes, each legislator found a Cartier watch (later it would become known that pro-government representatives received more expensive models than those from the opposition). The ten women legislators in the National Assembly got Cartier earrings.
Within a couple of days, the media found out about the presidential gifts and published stories about them. The president’s generous gifts met with sharp criticism from civil society members. After all, elected officials are supposed to provide a political counterweight to the executive branch.
On January 30, 2000, the Panamanian chapter of Transparency International (TI) published a full-page communiqué in the national newspapers. Under the headline "Unacceptable Gifts," the communiqué harshly criticized the president’s actions in the Cartier watch scandal. The piece was signed by all the members of TI’s Advisory Committee, headed by Roberto Eisenmann himself (at the time, he was also Moscoso’s presidential advisor).
The following day La Prensa—a paper founded by Eisenmann—published an editorial on the subject. The editorial criticized the local chapter of Transparency International: "The long time that it took [Transparency International’s Panamanian chapter] to react to such a notorious case suggests that it was not easy to reach a consensus and that more than one official of the organization must have seen direct criticism of the president as a dilemma."
The editorial concluded, "The fact that Eisenmann holds the positions both as president of Transparency International and as a presidential advisor represents a conflict of loyalties, which he ought to resolve by opting for one or the other." Later it was learned that the editorial was penned by investigative reporter Gustavo Gorriti, friend and classmate of Roberto Eisenmann during their Nieman year at Harvard and then deputy editor of the paper.
The next week at a board meeting, Eisenmann brought up the issue of the communiqué and the subsequent newspaper editorial. He had brought with him his signed resignation as the president of the local chapter of TI. While no one on the board had the least doubt about his integrity and his ability to act in an ethical way in both posts, his decision to resign was firm. Before I knew it, I had been chosen as his replacement.
Like the great majority of Panamanians, I had observed the phenomenon of corruption from afar and admired—also from afar—the romantic efforts of Bobby—as we fondly called him— and a small group of his collaborators who attempted to struggle against this destructive culture embedded in all levels of our society.
I decided to concentrate on two fundamental themes: a law of public access to information and a strategy to raise awareness among common folk about the impact of corruption on their daily lives.
During her campaign, Mireya Moscoso had made concrete promises that served as a basis to exact an initial commitment from her. So I researched legislation that could serve as a model for a proposal. The classic and best-known reference in the West has always been the 1966 U.S. Freedom of Information Act. However, anyone who has made the effort to read the entire law will immediately understand that such legislation is not compatible with the Panamanian judicial system.
In the search for appropriate legislation, we were surprised to find that the French Revolution had placed access to information and accountability as basic premises of the republic that replaced the monarchy.
However, I soon learned that in all of Latin America in the year 2000, there was not one single formal law regarding the right to access public information.
We opted for drawing up our own law from scratch, following some basic and logical principles. All information generated and stored by the state ought to be available to anyone. There should be no need to justify the reasons for the request for information; there should be no formalities nor should it be necessary to use a lawyer to file the request. Even more important, any person—a minor or someone in transit—could ask for access to information. Society benefits when its members know how the government functions, how much it spends, how much it pays out, whom it appoints and how much they are paid.
Of course, limits would be placed on two large categories: "confidential information" and "classified information." The first sought to protect the privacy of citizens; the law would not create the right to spy on neighbors; thus, a ban was imposed on personal, family, medical and financial data kept by the state.
As for "classified information," nine specific categories were established that could remain confidential for a certain period of time (also established by the law) if the authorities considered that the release of such information could cause harm to the state.
The bill had to have teeth. One was a time limit in which to respond to a request for information after which the requester could seek a court order.
President Mireya Moscoso received a copy of the bill spelling out the rights of access to public information and promised to present it to the Council of the Cabinet so they could take it to the National Assembly. She never did.
Our draft of the access law finally reached the National Assembly through party alliances. The bill passed quickly to the Government Commission, together with another proposal by pro-government legislator José Isabel Blandón to regulate habeas data, a bill compatible with our own.
Finally, the reformed bill, now known as the Transparency Law, was presented to the National Assembly in December 2001.
The great triumph for me was that the spirit of the proposed law remained intact: public information should be, in effect, public, and secrets should not be kept at the whim of officials who control public funds and make decisions in our names. The only secret in politics should be the vote.
To the surprise of many, myself included, on December 10, 2001, the legislators from all the different factions approved the bill unanimously. But it was premature to celebrate.
The Constitution establishes that the president has 30 working days to sanction or veto a bill. If he or she does not do so, the Constitution also establishes that the president of the National Assembly has the power to sanction the bill and enact it. In mid-January 2002, the executive had still not signed off on the law.
Following a major corruption scandal, however, on January 22, 2002, Mireya Moscoso staged an event at the presidential palace in which she declared that as part of its "frontal commitment to fight corruption," the government would sanction the Law of Transparency.
Two years, much perseverance and quite a bit of luck had been needed to get this law on the books. For a long while, I believed that the Peruvian interim government of Valentín Paniagua had approved the first law regarding access to public information in Latin America, after the fall of the Fujimori regime. Ten years later, when I was invited to give a talk on laws regarding access to public information—now there were 14 governments in the region that had such laws—I learned that what Paniagua had approved was not a formal law, but an executive order. Peru formally approved its law at the end of 2002. Thus, Panama was indeed the first Latin American country with a transparency law.
The celebration, however, again proved to be premature.
Mireya Moscoso then emitted Executive Decree 124 of 2002. With the alleged intention of "regulating" the recently approved law, she actually sought to castrate it. The decree added a series of obstacles in the way of information requests and made the petitions more difficult, clearly contradicting the content and spirit of the law. In particular, it included a devastating clause: the requests of those persons "who did not have a direct interest in the information" would be denied. It was obvious that such a decree was an abuse of authority because it exceeded the regulatory power of the executive branch in clear violation of the National Constitution.
Several lawsuits claiming constitutional violation were brought against the decree. In the meantime, the courts began to reject habeas data claims on the basis that the requester lacked "a direct interest” in the solicited information. Of the 65 habeas data claims that reached the Supreme Court of Justice, 55 were rejected.
On February 7, 2004, for example, Presidential Minister Mirta Pitty responded to journalists’ repeated requests about the use of discretionary funds managed by Moscoso by saying "no obligation" existed to give citizens this information. "We don’t know why they are insisting so much on this information," she said.
During the subsequent political election campaign, all the presidential candidates promised to strike down Executive Decree 124 immediately upon taking office, and Martín Torrijos did just that in 2004.
On the tenth anniversary of the law’s approval, in 2012, a journalist asked me about the effects of the law and finally inquired, "In your opinion, how will history judge former president Mireya Moscoso in her role of having approved the Law of Transparency?"
I responded that it was a tremendous paradox. "The law will pass into history as having been signed by Moscoso who was the law’s first and greatest enemy."