opinion

Hungry for Justice
by Alexander Brockwehl & Devin Parsons --- Council on Hemispheric Affairs

Every three days, at least one Panamanian child dies from malnutrition. But in June of 2006, a glimmer of hope emerged for them in the form of the late American expatriate and multimillionaire, Wilson Charles Lucom. Mr. Lucom died in Panama at age eighty-eight, and he instructed in his will that the bulk of his life savings be bequeathed to a foundation intended to alleviate the hunger and poverty of Panama's impoverished youth. Whether out of genuine empathy or familial spite (Lucom had not been a philanthropist during his life and left relatively little money to his wife), his bequest called for $50 million to be given to the poor children of Panama.

Lucom entrusted Richard S. Lehman, a highly regarded Florida lawyer and his long-time friend, to serve as chief executor of his will. On the surface, this was a simple task, given the explicit nature of Lucom's request. Four years later, however, despite Lehman's heroic efforts to execute the will, funds have not been distributed to the designated beneficiaries, and, thanks to the politically powerful Arias family and the demonstrably corrupt nature of the Panamanian judiciary, impoverished Panamanian children continue to suffer.

The relative effectiveness of the titans of the Arias family's campaign to block Lehman from fulfilling his objectives as executor suggests that there are different degrees of justice available to different Panamanians, depending upon their political and social standing. While Panama has improved upon various facets of its basic representative institutions, it would be a mistake to exaggerate this point. The murky status of Lucom's will hints at an anachronistic and obscure judiciary whose structure makes it highly prone to entrenched political manipulations and allows for bribes and pay-offs.

Structural deficiencies

In order to understand the legal dilemma that has transpired over the last four years, it is important to assess the atypical structure of the Panamanian judicial system. The country's judiciary consists of a Supreme Court, four superior courts, eighteen circuit courts, and at least one municipal court per district. Nine Supreme Court magistrates, as well as their nine alternates, are appointed by the president for ten-year terms, pending approval by the legislative assembly. Unlike many other systems in the western hemisphere, in Panama, Supreme Court magistrates are responsible for appointing superior court judges who, in turn, appoint the circuit court judges.

Though the legal system is, in theory, constitutionally independent, this hierarchical method of appointment makes it especially prone to corruption, a susceptibility that is exacerbated by the relative autonomy offered to magistrates at all levels. Panama operates within an inquisitorial system that diverges significantly from the adversarial system in place in the United States. In the adversarial system, judges are expected to be merely impartial arbiters of the case, whereas in Panama's courts, judges are offered extensive latitude in determining how cases are to be investigated. Judges can freely associate with legal representatives of a litigant outside of the courtroom, which increases the likelihood that they will fall into an unprofessional relationship and may develop a tainted perception of the facts of a given case.

A startling history

Given its structure, it is unsurprising that for nearly all of its modern history, the Panamanian judiciary has been associated with extensive malfeasance, from questionable appointments to chronically underhanded and "fixed" judicial proceedings. For decades, it was assumed that bribery and extortion were endemically practiced in order to achieve a particular judicial outcome. Only in recent years has increased attention from homegrown civil bodies and international organizations brought to light a number of startling judiciary practices that were commonplace in Panama. In 2002, two legislators allegedly accepted large sums of money in exchange for confirming the nomination of two prospective Supreme Court magistrates. In response to mounting evidence of bribery and blackmail, the country's Public Ministry opened an investigation into the case; however, the court ultimately declared the claim null, and the case was never fully heard.

In 2005, another case was resolved in a discouragingly similar manner. In this instance, a Supreme Court Justice accused three of his colleagues of blatantly ruling in favor of drug-traffickers, citing six different cases in which he had observed preferential treatment being handed out by the court. Despite a preponderant amount of evidence suggesting the validity of this claim and the US Embassy's rescission of two of the magistrates' US visas, the case was never pursued.

In general, the first half of this decade was a period of rampant depravity, and by the end of 2005, disillusionment and distrust of the government and its courts were peaking among the populace. According to Transparency International's 2005 Corruption Perceptions Index, which ranks countries in order from least to most corrupt based upon public perception, Panama ranked 65th in the world. Also, as measured by the Global Corruption Barometer, the judiciary received a rating of 4.5 from Panamanian citizens, with "1" being "not corrupt at all" and "5" being "extremely corrupt." According to World Bank's Worldwide Governance Indicators --- which defines rule of law as "the extent to which agents have confidence and abide by the rules of society and in particular the quality of contract enforcement, police and courts, as well as the likelihood of crime or violence" --- Panama places in the 50th percentile. As of 2005, the civilian population was well aware of the deceitful practices that plague the country's judiciary, but subsequent attempts at reform have shown the difficulty of overcoming these entrenched, fraudulent practices.

Feeble attempts at reform

In response to these and many other cases of judicial vice, a mass movement was launched with the goal of reforming the judiciary in order to make it more transparent. The Alianza Ciudadana Pro Justicia, made up of over twenty different Panamanian civil organizations, along with the Due Process of Law Foundation, exerted significant pressure on the executive branch. Then-President Martín Torrijos Espino attempted to remedy the worsening situation by establishing the Comision de Estado por la Justicia, a governmental and citizen task force intended to overhaul the judicial system. The group had ambitious goals, including developing the Pacto de Estado por la Justicia to improve unfettered access to the legal system, increase transparency, and implement structural and jurisdictional reform. Their ultimate recommendations included establishing a new procedure for selecting Supreme Court magistrates that would directly involve the citizenry, granting the Public Ministry greater authority, and creating an administrative board called the Consejo de la Judicatura that would oversee judicial proceedings and enforce an adherence to the law. Unfortunately, none of these proposals were implemented by Torrijos.

A lack of substantive progress

Since Torrijos's commission, little has been done on a policy level to combat improper judicial conduct. The Alianza Ciudadana Pro Justicia, while continuing to push for reform, has been unable to achieve any concrete results. On March 23, 2010, representatives from the Alianza addressed the Inter-American Commission on Human Rights regarding the troubling condition of the Panamanian courts. In the meantime, statistics indicate that little has improved. Panama now ranks 84th in the Corruption Perceptions Index, dropping nineteen places since 2005. Furthermore, the judiciary currently receives a 4.4 from citizens on the Global Corruption Barometer, reflecting a negligible improvement. Finally, with regard to respect for the rule of law, Panama remains in the 50th percentile according to Worldwide Governance Indicators. Reports by the Due Process of Law Foundation and the Alianza Ciudadana Pro Justicia suggest that Panama's judicial system is still plagued by executive interference. They also have noted the judiciary's failure both to meet the standards of due process as stipulated by the Inter-American Commission on Human Rights and to establish a transparent, robustly participatory selection process for Supreme Court magistrates.

Where there's a will…

Within the context of the Panamanian judiciary's defects and its legacy of tainted proceedings, the extent of court-propagated rights abuses experienced by Lucom's attorney Richard Lehman should not come as a surprise. When Lehman took up the seemingly straightforward task of carrying out Lucom's final wishes, he knew that Panama's courts were corrupt, but he did not envision that executing the will would cost him millions of dollars of his own funds as well as jeopardize his rights, reputation, personal safety and the future of his private law practice. Lehman's unwillingness to abandon his friend's cause reflects his tenacity and his recognition that the fate of literally thousands of Panamanian children is tied to the will's $50 million in charitable funding.

The roadblocks to the execution of the will began appearing almost immediately and in patterns too suspicious to be attributed to unfortunate luck. Lucom's widow Hilda was previously married to Gilberto Arias, with whom she had five children. The Arias family has produced two of the country's past presidents, and two of Hilda's children still maintain positions of political eminence. The family also owns a prominent Panamanian newspaper El Panama America. Lucom's final act of charity, though noble, would also allow for a large amount of money to slip through the fingers of this powerful and famous family. Needless to say, the Ariases would not be expected to go down without a fight.

Money over morals

Though Lucom died a very wealthy man, much to the astonishment of his family and friends, he left very little to his wife and her children from a previous marriage. To his wife, Lucom left their large home along with $240,000 per year --- a relatively modest sum in comparison to the $50 million he had donated to charity. He left only $50,000 to each of his stepchildren. On August 18, 2006, not long after Lehman became involved with the case, Mrs. Lucom filed a complaint to have the will nullified, despite her old age and the fact that she was suffering from Parkinson's disease. Although Mrs. Lucom was the figurehead of the legal battle, her poor physical and mental state suggest that the push to remove Lehman from the case was, according to rampant rumors circulating in Panama City, spearheaded by a coalition of Hilda's five children and their lawyer Héctor Infante.

The Lucom will came under the jurisdiction of a subpanel of three Supreme Court magistrates, two of whom, like Infante, are affiliated with the country's largest party, the Democratic Revolutionary Party (PRD), which since the 1989 invasion that overthrew the dictatorship from which it arose has alternated in power. One of the magistrates, 2009's presiding magistrate Harley Mitchell, is known to have met with Infante for private lunches. "I guarantee you, this case will be decided by power and money, not by the law," said Lehman in a personal interview with COHA earlier in the case. Sure enough, individuals knowledgeable about the case have revealed to COHA with near unanimity that they have little doubt that under the table subventions occur regularly in order to ensure the success of the will's opponents. To this day, money seems to be passing through the hands of everyone with the exception of those who deserve it the most: in this case, the poor children of Panama.

Trapped in litigation

With several members of the judicial system already having amiable ties to the well-heeled Infante, the Panamanian judiciary has pursued Lehman relentlessly. Since becoming the will's executor, Lehman has been faced with over thirteen contrived criminal charges. On September 11, 2006, Infante's law firm publicly accused Lehman of murdering Lucom. As soon as the case reached the superior courts, however, the allegation was declared "baseless," and the claim was nullified.

"They tried to scare me away, chase me away, get rid of me in any way they could," recalls Lehman. Indeed, soon after being cleared of the murder charge, Lehman was met with a flood of false accusations ranging from claims of theft and gang formation to extortion and defamation. Furthermore, Panamanian authorities even filed an INTERPOL "Red Alert" notice that classified Lehman as a terrorist and called for his arrest in over 180 countries. While all of these allegations lacked any legitimacy and were eventually dismissed by the Panamanian courts, each required extensive legal action by Lehman that exhausted both his time and funds.

This series of specious charges that were freely circulated by those close to the Arias family created a tangled web that effectively trapped Lehman in a cycle of endless litigation, and in effect kept him from moving forward with carrying out the will's stipulations. Lehman was falsely arrested on several occasions, and, more than once, he was unjustly denied the right to travel into or out of Panama. The allegations, even after they had been dismissed, kept resurfacing, and Lehman repeatedly (albeit unsuccessfully) appealed to the courts in hopes of quashing this legal malingering meant to chew up time. Panamanian law calls for a habeas corpus plea to be ruled upon within 48 hours, but Lehman's petition, which came in response to his court-sanctioned exile from Panama, was not ruled upon by Mitchell for more than eleven months. During this long stretch of time, Lehman lacked the court access that was critical to advancing the case.

The corruption of the process even followed Lehman to the United States, where three of the false rulings were presented to the Florida courts as legitimate. Because it was relying on fraudulent rulings issued in Panama, the Palm Beach County probate court wrongly stripped Lehman of his title of Executor. Only within the past few weeks has Lehman been able to prove that the allegations against him in Panama had already been negated and that he should be reinstated as Executor. At present, Lehman still has to explain to the Florida courts why he was using his law firm's Florida bank account to pay for much of the legal costs of his battles in Panama.

Keeping it in the light

On March 6, 2009, Lehman submitted a petition to the Inter-American Commission on Human Rights that outlined the nature of the violations leveled against him during his legal battles in Panama. On multiple occasions, Lehman has been denied the right to work freely, the right to personal liberty, freedom from arbitrary arrest, freedom of movement, the right to judicial protection, the right to equal protection, and the right to privacy. All of these rights are specifically defined in the American Declaration of the Rights and Duties of Man, as well as the Additional Protocol in the Area of Economic, Social, and Cultural Rights, both of which are officially recognized by Panamanian authorities.

Richard Lehman has told COHA researchers that in order to maintain pressure on the Panamanian courts, he is "trying to get as many people involved as possible in order to keep it in the sunlight." Under growing international scrutiny, the Lucom will scandal is more likely to be resolved in Lehman's and the poor children's favor. Some of the many authorities and organizations Lehman has contacted in addition to COHA include the Attorney General of Panama, the President of Panama, the National Assembly of Representatives, the Transparency Council, and the Organization of American States. Furthermore, on March 31, 2010, Lehman irrevocably committed the Lucom Foundation funds to a Catholic charity as well as to a Panamanian government ministry. While reaching out to these various bodies has helped increase exposure, it has not yet necessarily had a tangible effect on the outcome of the case.

Even the publicity campaign surrounding the will has been fraught with obstacles. An international media operation was launched aimed at slandering Lehman and others involved in promoting Lucom's right to invest his life's earnings in the manner that he sees fit. Some of the lawyers and supporters working with Lehman have experienced legal hurdles and threats as a result of their affiliation with the case. Because not all of the victims had access to the type of sophisticated legal background and financial resources available to Lehman, many of them crumbled under the pressure and disassociated themselves from the case.

One of the more spirited attempts to inform the public of the back-room court dealings was led by talk show radio host Héctor Avila. To promote awareness of children suffering unnecessarily from malnutrition, Avila led a march to the front of the Panamanian Supreme Court. This peaceful demonstration elicited a violent response when an unknown gunman shot Avila through the jaw. Miraculously, he survived, but his story epitomizes the danger of the environment in which these events have been transpiring.

As it currently stands, "there are no more legal battles to fight," says Lehman, "all we can do now is keep the light on this case and wait for the ruling." Although he speaks passionately about his hopes of ultimately finding justice, it is clear that four years has taken its toll. Lehman has told his story many times, raising his voice against the formidable arsenal of an entire legal system of malefactors working to suppress it. Although he has grown weary of the multiple challenges he faces, his consciousness of each Panamanian child who dies of hunger keeps him highly motivated. Lehman holds a cautious optimism that in the future he will be able to refer to the Panamanian children not by the rate at which they die, but rather by the tremendous positive effect that Mr. Lucom's gift will have on their lives.

Much-needed reforms

The case of Wilson Lucom's will has exposed many inherent defects within the Panamanian judiciary, but it remains a point of contention as to what specific reforms should be implemented to expedite the extirpation of judicial corruption. That being said, most agree that improving the system begins with appointing more qualified individuals to juridical positions. The current hierarchical and nepotistic procedure for judicial appointments makes ascendance to the highest court contingent upon "making nice" with those of the next higher rank. In the current system, Supreme Court magistrates are often simply old cronies or top aides of the president, and superior court judges frequently need to have backroom relationships with their superiors in the high court in order to privately survive. Developing a more transparent process of selecting magistrates would limit the likelihood of an individual being appointed solely because of his or her links to political sharks. A long-term approach must be taken that would better incorporate eminent juridical figures as well as private citizens into the selection process.

A more participatory and transparent system for selecting magistrates would also persuade the constitutionally independent judiciary to function semi-autonomously. The executive's power to appoint Supreme Court magistrates has reduced the judiciary to an almost tutelary arm of an increasingly centralized federal government. Supreme Court appointees are often members of the same political party as the president, tempting the executive and judicial magistrates to form a mutually beneficial private relationship that can only be sustained at the cost of impartial execution of the law. This type of relationship was exemplified in the Lucom case, in which two of the three Supreme Court magistrates who presided over the case were from then-President Torrijos's PRD.

Equally important is the actual role of judges as stipulated by the constitution. As mentioned, the Panamanian constitution confers extensive latitude to magistrates in determining how to investigate and rule upon a particular case. Unlike in the United States, where contact between lawyers and magistrates is officially limited to the courtroom, Lehman has cited a number of instances when magistrate Harley Mitchell had gone to lunch with Infante. Mitchell's grossly unethical subsequent conduct in the case, including his illegal postponement of issuing a ruling on Lehman's habeas corpus plea, implies that Mitchell envisioned his role as much more expansive and tendentious than that of an impartial arbiter. While Mitchell's relationship with Infante raises genuine questions of professionalism, it is not illegal under the ambiguous rules of an inquisitorial system. Lehman, like many lawyers and legal scholars familiar with the Panamanian court system, believes that transitioning to an adversarial system would highly curtail these kinds of improper relationships and thus assist in providing a long-term solution to Panama's history of systemic corruption.

Current prospects for change

Though the Alianza Ciudadana Pro Justicia and many other organizations have repeatedly pleaded with ranking Panamanian authorities and human rights organizations to aggressively transform its judicial system, there is little reason to be hopeful that meaningful change will soon happen. Since President Ricardo Martinelli Berrocal took office last July, he has made multiple promises to clean up the judiciary. As explained by the nation's important daily La Prensa, in anticipation of last December's appointments, Martinelli created a new participatory selection process to illuminate a previously obscure and often concealed procedure. By calling upon citizens to file applications in order to fill judicial vacancies, Martinelli exceeded his constitutional obligations. But according to the Panama News, an English-language, Panamanian newspaper, Martinelli quickly reneged on his promise to infuse increased transparency into the process; instead, he appointed a cohort of lawyers and administrative cronies to the judicial posts, many of whom have troubled personal pasts.

While Martinelli made a concerted effort in the early months of his presidency to exude a sense of respect for the institutions of representative democracy as well as a fervent intolerance for corruption, his tough governing style has since been exposed as a method to disguise an authoritarian agenda to further centralize the executive branch. Martinelli's appointments suggest contempt for democratic institutions and were a slap in the face to those who had participated in his putative open selection procedure; they also may not have been legal. According to Article 203, Section 2 of the Constitution, "Nobody may be named magistrate of the Supreme Court of Justice who is exercising or has exercised a position of authority and jurisdiction in the executive branch during the constitutional period underway." As the Alianza Ciudadana Pro Justicia pointed out in a legal appeal, José Abel Almengor, one of Martinelli's Supreme Court nominees, had previously been appointed by the president to be Secretary of Security just months earlier. Despite what appears to be a palpable legal transgression, La Prensa speculates that Almengor and Martinelli's other legislatively approved nominees will assume their positions because of the inherent ambiguity of the law. Regardless of the fate of these appointees, it is clear that Panama's judiciary is in need of large-scale structural reform which, based on Martinelli's track record thus far, does not appear to be in the country's near future.

Human rights in crisis

"A culture has been created in Panama that is so dangerous that it pervades even some of the good lawyers," explains Lehman. "People are so afraid of their own justice system that they take it lying down." The ability to seek justice is the backbone of any healthy society; when justice is absent, the entire political system collapses. Panamanian citizens have a series of embedded rights contained in documents such as the American Declaration on the Rights of Man, the American Convention on Human Rights, as well as in their own constitution. Without the backing of a principled practice of the rule of law, however, these rights hold little meaning beyond words on a scrap of paper.

Unfortunately, the judicial system in Panama seems to be partial to political forces bent on undermining justice and eroding its moral integrity. As exemplified by the Lehman case, achieving justice has become a costly battle rather than an assumed common goal. The poor children of Panama are lucky in that Lehman, acting as a paladin in their cause, possesses the time, skill, and financial resources to mobilize enough public pressure to fight the corruption polluting the case; most do not have these advantages. If the Supreme Court refuses to rule on the Lucom case while children die unnecessarily, corruption will continue to triumph, and human rights in Panama will remain in great jeopardy.