opinion

Why is the adversary system urgent?
by Miguel Antonio Bernal

The modern state has an obligation to be, at all times, the guarantor of coexistence and of respect for fundamental rights. We see with much sadness and concern how, without consulting any citizen, the executive branch has decided --- with absurd brashness --- to postpone the entry into effect of the new adversary (sometimes also called "accusatory") system in our criminal courts.

The people in that branch of government say "The new terms that have been consecrated... are adequate to complete the pending tasks for the purpose of guaranteeing the effective application of the law." And thus they will postpone the entry into effect of the adversary system in criminal law until September 2, 2011 as the starting date in the Second Judicial District (Cocle and Veraguas), and, successively until 2014, when it will go into effect in the Panama Judicial District. In other words: order and security, before freedom and guarantees!

It's incredible that all of the educational work undertaken for the urgent and necessary transition toward an adversary penal system that allows us to abandon, once and for all, the inquisitory penal system --- which has served to sustain, corruption, disorganization, inefficiency and inefficacy, which doesn't allow for the citizens' right to prompt justice without the present excessive and nefarious formalism --- has been thrown aside with justifications that border on demagoguery, populism and disregard for constitutional guarantees. Where do they want to take us with this move?

It makes it necessary to emphasize to society the importace of the new adversary criminal procedure system, with its oral trial in which the presentations of proof and the handing down of the verdict must take place in the same trial proceeding that leaves behind the present slow and ritualistic paperwork; in which the judge can't continue to base his or her decision just on the documents in the file but must have greater contact with the accused and the victim; in which privileges are eliminated and equality among the parties is obligatory, so that the jails aren't packed with prisoners awaiting trial who are there due to the caprice of prosecutors or personeros; in which there is a judge to command a greater respect for human rights and impede the impunity in which we are drowning.

With the new adversary criminal procedure system, dilatory motions would be done away with, limits would be placed on the duration of proceedings in order to end the docket backlog, and the application of penalties would be subordinated to respect for human rights. The adversary system is an essential instrument of social peace, based in the human rights that should be the floor and ceiling, the foundation and limit of the government's power to punish.