Leis, Panamanian justice on trial

Recently the Citizens Alliance for Justice, led by Magaly Castillo, compiled and released the report “Citizens’ audit of criminal justice in Panama.” Is it important? Clearly so, given that what’s at stake is the equality of citizens before the law, a basic element of the rule of law. The alliance --- to which several entities belong --- says that this discussion pertains not only to lawyers, but to all citizens, and thus it’s important to democratize it and disseminate it.

The report presents us with impressive conclusions, grouped in subjects like judicial independence and transparency, citizens’ safety and the prison system, access to justice and the situation of prisoners awaiting trial. Let’s see some of them:

1. The process of selection and nomination of Supreme Court magistrates is subject to partisan political interests that control the executive and legislative branches, something that’s rejected by the community and affects the public image of judicial independence.

2. The system of selection and nomination of judges is based upon the discretion of the nominating authority and neither on merit nor academic credentials, nor on the basis of judges rising through the ranks, which instills a lack of confidence in the profession.

3. In the judiciary there’s a top-down structure that fosters an excessive control over judges of lower courts. The hierarchy intervenes in the system of judicial selection, nomination, evaluation and training, in the decision and direction of disciplinary and ethical procedures, and in the application of standards, none of which guarantee transparency and excellence in the process of selecting judges. Moreover, it promotes internal and external distrust of judicial functions, and at the same time makes judges vulnerable to interference from within and outside of the judicial system.

4. The judicial system hasn’t implemented a process of evaluation of performance that becomes part of the record of functionaries and justifies a policy of promotions, scholarships, licenses, transfers, pay raises, etc. Thus, as a practical matter there isn’t any regulation of the judicial service, nor of judicial training.

5. There are regulations, within the context of the Judicial Code, that set forth the procedures for infractions against disciplinary rules and ethical canons, but their application have been confused and subject to varying interpretations which detract from the seriousness of the institutions of justice. And then there are no statistics that allow it to be known the exact number of disciplinary or ethical cases brought within the judiciary or the Public Ministry, the time that such cases take, the number of functionaries penalized and the sanctions that are applied.

6. There are an excessive number of judicial functions that are normally conceded to the Public Ministry, without any judicial control, such as: ordering preventive detentions, personal travel restrictions, searches, seizures and so on. Such a situation is unacceptable in a system that guarantees rights, because it’s not conceivable that the investigating agent (prosecutor or district attorney) who can investigate, gather proofs and, finally, accuse, would be impartial. The result is that nearly 50 percent of those who are incarcerated under pretrial preventive detention are held under orders of the Public Ministry.

7. According to the operatives of the judicial system itself, the crime most likely to go unpunished is illicit enrichment, due to the requirement of preconstituted proof and other legal requisites that affect the ability of the Public Ministry to investigate this type of crime.

8. There is a generalized perception of impunity and corruption affecting the citizenry’s image of how the criminal justice system functions. Also, citizens observe that justice is not applied with equal conditions for everyone.

9. There are no studies or statistics to help determine the time that it takes to investigate a case in the Anti-Corruption Prosecutor’s office. The backlog of investigations is linked to various factors: the number of people involved, dependence upon other state institutions for proofs --- particularly upon the Comptroller General’s office --- the dilatory tactics or measures of the lawyers and the type of conduct investigated.

10. At the present time there is no system of indicators about cases of corruption investigated and processed, nor clear statistics about convictions or penalties imposed by the judiciary in such cases.

11. There is no budget and there are no qualified human resources to objectively investigate what is happening in the criminal justice system with regard to the fight against corruption.

The panorama is somber and it explains the negative perception that many Panamanians have about legal justice, but what we really need to do is get on with the promotion of judicial reform and to impel a culture of accountability among those who move the justice system.

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opinion

Justice on trial