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On December 28 --- ironically the Day of the Holy Innocents, Panama’s equivalent of the US April Fool’s Day --- President Torrijos nominated Harley James Mitchell and Leonel Benavides Pinilla to the Supreme Court, and the National Assembly approved the nominations before the day’s legislative session was over. Mitchell was assigned to the panel that hears civil cases, while Benavides was appointed to the administrative bench. Mitchell and Benavides replaced Arturo Hoyos and Jorge Federico Lee respectively.

Mitchell, a veteran PRD apparatchik, had been the director of the legislature’s technical assistance office. He worked for some 27 years in various posts as a legislative aide and the government’s representative on the partially state-owned Petroterminales de Panama board of directors. He also served as a city council member and diplomatic legal attache. In the brief three-hour debate that preceded the ratification of his nomination, Mitchell’s appointment was criticized by some opposition deputies on the grounds that there would be an appearance of partisan bias. That criticism was shared by anti-corruption activists and Mercedes Arauz de Grimaldo, the head of Panama’s Colegio de Abogados bar association, but other opposition and civic leaders were more positive about the appointment. President Torrijos said that he made the appointment on the basis of Mitchell’s professional qualifications and moral reputation rather than for reasons of party, family ties or friendship.

Although he is faulted by some for not making waves when he was a senior employee of a legislature that most Panamanians consider to be intolerably corrupt, Mitchell is also known for taking some independent political and legal stands. Most notably, when the Panama Canal Authority took the position that international treaties prevent it from banning the passage of ships bearing radioactive wastes through the canal, he was the most prominent legal authority to dispute that claim.

Benavides, who is not known as a political activist, retired this past August after more than 30 years of working in the Public Ministry for the Procuradoria de Administracion, for the past decade as its secretary general. It was reported in several of the daily newspapers at the time that he quit his post at the Public Ministry over differences with Administrative Prosecutor Oscar Ceville.

Both of the new high court magistrates have taught law on the university level and they are each the authors of several scholarly treatises. Benavides has taught administrative law at the University of Panama’s diplomacy school and tax legislation at the same university’s school of public administration. Mitchell teaches business law and classes on international economic integration at the University of Panama law school and constitutional law at ULACIT. Mitchell also has 14 years of experience teaching elementary school and adult secondary education.

Although most observers consider the two new magistrates to be well qualified in terms of their knowledge of the law, the rapid process by which their nominations were approved has attracted widespread criticism. La Prensa blasted the late night vote to ratify the nominees and called the appointments “nothing more than official confirmation of the establishment’s continuity.” El Panama America opined that “the lack of confidence we have in the administration of justice is not resolved with these designations.”

Only 11 legislators spoke or asked questions during the ratification process, and these queries tended to be of a general “softball” character. One of the questions posed to each nominee was whether he might resign if he became the subject of public criticism. Mitchell intimated that he wouldn’t be swayed by orchestrated campaigns against his decisions, while Benavides pointed out that he had shown his willingness to sacrifice his own job over matters of principle when he resigned from the Public Ministry.

Also appointed and approved in the same process were three alternate (suplente) magistrates: Delia Carrizo de Martinez as Mitchell’s stand-in and Janina Small as Benevides’s, and Juan Francisco Castillo Canto to fill a vacancy as Jose Troyano’s substitute.

Small has been the object of some technical criticism that will likely result in a legal challenge. She comes to her new job having been an assistant administrative prosecutor for more than 20 years and having subsequently served for many years as an employee of the high court’s administrative bench. However, she was not added to the civil service list, which under the past several administrations has mainly and improperly been reserved for party activists, despite the law’s stipulation that anyone with more than five years in a public post --- which she had --- is by definition a career public servant. The distinction becomes important because the constitution requires that an attorney needs to have been a privately practicing lawyer, judge, prosecutor, law professor or career public servant for at least 10 years to qualify for an appointment as magistrate of the Supreme Court of Justice. It is argued that the lack of a presidential acknowledgement that a person qualifies for civil service protection negates any claim that the individual is a career public servant for purposes of a judicial appointment. Such a challenge could become the legal vehicle for a broad ruling on Panama’s abused and dysfunctional civil service system that might have much wider implications than just the validity of Small’s appointment.