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Special legislative session to pack high court, revise criminal law attracts critics

by Eric Jackson

On  September 23 the National Assembly convenes for a 10-day special session that will consider a proposed new Penal Code, changes to the rules of criminal procedure and a plan to pack the Supreme Court with a majority of Torrijos appointees by way of the creation of a new three-magistrate Fifth Bench that would increase the court's membership from 9 to 12.

As many critics pointed out, 10 days is relatively little time to do all that, so in deference to such opinions the legislature's Government and Justice Committee held two weeks of hearings at which about 70 people testified. The great majority of those who testified had serious complaints about the proposed criminal law changes, which have come to the legislature from a presidential commission, whose recommendations were considered by the Cabinet Council before being sent on to the National Assembly.

From the legal profession there were major complaints about the substance of the changes in procedural rules but about the way they may be implemented. The central change is to shift from an inquisitional system like most Civil Code jurisdictions use to an adversarial system more like that of the places that use the Common Law. It means that prosecutors would shed some judicial functions like deciding whether persons accused of crimes will be held in jail pending trial, leaving these to judges; while judges would lose much of their investigative function, leaving that to prosecutors. There would be an expansion of the jury system to crimes other than murder (but no substantial reform of jury pools, which are composed of government employees). The taking of statements for written dossiers would be reduced in favor of live testimony at trials. All of these changes imply a major retraining of the nation's lawyers and a reworking of the courses taught at law schools, but the critics --- including the nation's bar association, the Colegio de Abogados, say this takes time and money and neither of these are provided for in the proposal.

The Panamanian Constitutional Law Association called for the entire reform package to be withdrawn for more discussion, and added that the way the proposed new code and rules of procedure are written they are confusing even to professionals and are likely to detract from rather than contribute to the rule of law.

Another procedural change that prompted criticism from defense lawyers was a proposal to allow secret witnesses. There is a problem, particularly in gang-related cases, with the intimidation of witnesses in Panama. However, lawyers argue that resolving it by allowing secret witnesses essentially prevents defendants from getting fair trials.

Civic and anti-corruption groups joined together in the Citizens Alliance for Justice also called for the package's withdrawal, but in their case one of the major arguments is that the code includes new immunities for judges and legislators who indulge in acts of corruption. "There's no justification for the notion that because someone holds a public post there should be a special law to grant preferential treatment," alliance spokesman Carlos Lee complained.

Also getting new breaks under the proposed law will be those who commit acts of domestic violence, which would be legalized on first offense because the new code would require a pattern of conduct before the law could step in and men who have sexual relations with underage girls, who would be able to avoid statutory rape prosecutions by making an offer of marriage. Essentially the same alliance of women's groups that brought down former Ombudsman Liborio García over a domestic violence allegation and obnoxious statements about the subject are lined up against these proposed changes.

Meanwhile García's interim successor, Mónica Pérez, complained that the general increase in prison terms for most crimes means even worse prison overcrowding, and there's no guarantee that the funds to deal with the extra prison population would be forthcoming from the government.

Currently the maximum penalty for any crime in Panama is 20 years behind bars, but for aggravated murder it's proposed to increase this to 35 years. However, penalties for nonviolent crimes would also be raised. For example, journalists who publish true stories that injure people's reputations now face the prospect of conviction for injuria but under the Torrijos administration's plan the penalty would be doubled to two years of incarceration. Some of the establishment media organizations sent people to go on the record against this and again plead for the decriminalization of all defamation offenses, leaving libel and slander as civil matters.

Divisions over a Fifth Bench on the Supreme Court break down along party lines, with the PRD and Partido Popular supporting the court-packing move and the opposition parties opposing it. Because the current high court majority is widely perceived to be pro-corruption, however, there has been very little public outrage at this proposal outside of the political parties and legal profession.

The idea that all of these issues can be properly addressed in a 10-day session has been the subject of much commentary as well. Our legislators are notorious for passing things that they have never read and the time schedule and sheer size of the proposed Penal Code and rules of procedure ensure that this would be the norm again. That led former President Guillermo Endara to dismiss the legislators as presidential "lapdogs" and predict that the changes will be rushed through the assembly.

That sort of barb would be expected from the opposition, but in this case the conservative National Private Enterprise Council (CoNEP) added its voice to the demand for more time to discuss and debate the massive changes in the way Panama handles criminal justice.

Look for all three proposals to whiz through the legislature in record time, probably with some changes to soften the most obvious abuses and probably with some new privileges immunities for corrupt public officials slipped in late at night.

Do not look for any lasting resolution to Panama's serious issues revolving around the criminal law, at least not in the short term. The changes will likely play a role in the 2009 elections, with the PRD and Partido Popular candidates claiming to have been tough on crime and their detractors accusing them of being soft on corruption. In 2009 the legal system would still be adjusting to the changes and the extent of any chaos in the transition would also likely become a campaign issue.

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