By Ramiro Orías
- Judicial Crisis
The Judiciary in Panama is in the midst of a serious and prolonged crisis. While it is not new, it has worsened noticeably within the past year due to reports of corruption, back-and-forth accusations, and power struggles among the Justices of the Supreme Court (CSJ). These events have led to a climate of institutional destabilization and the low public credibility of the Court, which has lost the political leadership it should possess.
In early 2015, the then-Chief Justice of the Supreme Court Alejandro Moncada Luna was removed from office, prosecuted, and sentenced to five years in prison for unlawful enrichment and document forgery. Moncada Luna is currently serving his sentence in a Panamanian penitentiary. Shortly thereafter, Supreme Court Justice Víctor Benavides resigned after being accused of unlawful enrichment, money laundering, and public corruption. New replacement justices were nominated in December 2015, unfortunately in a process described by some as nontransparent and not based on the objective criteria of merit and professional experience, meaning that an important opportunity to improve the high court’s negative image was lost.
The National Assembly has recently received at least 25 criminal complaints against several current Justices of the Supreme Court. The current Chief Justice of the CSJ, José Ayú Prado, has the greatest number complaints against him, with a total of 13. The accusations allege various criminal acts, including the excessive use of public funds for international travel, embezzlement of public funds, abuse of authority, destruction of evidence, influence peddling, overstepping authority, breach of duties, interference in the investigative work of the Public Ministry, and corruption of public servants.
Although some of them have been shelved, most of the complaints brought against those Justices before the National Assembly are currently pending a decision by the legislative body’s Credentials, Regulations, Ethics, and Judicial Affairs Committee, which has postponed and delayed the admissibility report needed to initiate proceedings against those justices for malfeasance in office. At the same time, the Supreme Court has decided not to investigate and prosecute certain members of the National Assembly for the commission of election offenses (improper use of public funds in the 2011 election campaign). For his part, in view of the judicial crisis, the President of Panama has stated that the Executive Branch will not take any initiative to address the issue because it concerns internal differences among the members of the Judiciary.
The public credibility of the Supreme Court is being eroded and weakened at a particularly sensitive time politically, when there are at least 12 cases actively pending against former President Ricardo Martinelli for alleged corruption during his term of office (2009-2014). The case that is farthest along is the one related to unlawful politically-motivated telephone wiretaps, and there are other cases alleging corruption and economic harm to the State. There is an outstanding warrant for the arrest of Martinelli, who is currently in the United States and the subject of Panamanian extradition proceedings.
Civil society and lawyers’ professional organizations have asked the government to invite the United Nations Office of the Special Rapporteur on the Independence of Judges and Lawyers to Panama to assess the situation and issue recommendations with a view to resolving the crisis in the justice system, as it has spilled over into the international arena. The Chief Justice of the CSJ, José Ayú Pardo, was recently invited to Washington, DC by the Secretary General of the Organization of American States to be recognized as a goodwill ambassador for environmental justice in the Americas. After Panamanian civil society raised numerous objections, he was informed that he would no longer be the recipient of that distinction.
Among other things, this crisis reflects the shortcomings of the current model for the appointment of the Justices, who are named through orders of the Council of Cabinet Ministers, subject to the approval of the Legislature, for a term of ten years. There is no pre-established procedure for the evaluation of merits, open to public scrutiny, with a view to selecting the most suitable candidates. For this reason, it is essential to promote the reform of the current appointment system—which is political and gives the Executive broad discretion—in favor of a more transparent and independent one based on merit, openness, and citizen participation.
- Background to the crisis: pending reforms to the justice system
The main problem with the Panamanian justice system is the lack of “citizen access to justice,” according to the Citizen Audit of the Criminal Justice System prepared by the civil society organization Citizens’ Alliance for Justice with support from the UNDP (2004). This report underscores a number of persistent issues of concern in the judicial sphere, such as: backlogs in the courts, the high number of prisoners in pre-conviction detention, the lack of budget autonomy, corruption in the judicial system, the perception of impunity and the selective nature of justice, and limited transparency and citizen participation in the processes for the selection of Supreme Court justices. It concludes that the improvement of access to justice has to do with the operation of an “impartial, qualified, and transparent” system. To that end, it proposed the development of a State Pact for the comprehensive and consensus-based reform of the justice system.
In March 2005, the President of the Republic announced the signing of a State Pact for Justice and created a State Commission to devise a consensus-based agenda among all of the justice sector institutions and civil society, identifying a set of actions designed to reform the justice system. Although various initiatives were taken at the beginning, the process gradually weakened and failed to meet its objectives. For instance, a new Code of Criminal Procedure was approved in 2008, but its implementation was postponed for several years.
The State Commission for Justice remained inactive from 2009 to 2014, which hindered progress on the comprehensive reform agenda agreed to in 2005 and entailed major setbacks in the administration of justice. The reform process was reactivated beginning in 2015, and has been implemented in three of the country’s judicial districts. In addition, the Judicial Training Law (Law 53 of August 27, 2015) was recently enacted. In both cases, budget allocations for their appropriate institutional implementation are pending.
The new adversarial criminal justice system, which should go into effect starting in September 2016 in the First Judicial District, faces a shortage of funds to develop the broad logistical structure that is needed. The Ministry of Economy and Finance (MEF) cut the budget that the Judiciary had requested for the implementation of the new criminal justice model starting in September. The judicial budget, which had originally been set at $257 million for this year, was slashed to $119 million.
The Panamanian Judiciary must recover its leadership and institutional initiative in order to carry out and manage the pending reforms. In order for them to be sustainable over the long term, a mechanism must be created for the replacement of its most senior authorities that ensures compliance with international standards on judicial independence and transparency.
Clearly, the judicial crisis is part of a more complex political crisis, the causes of which appear to include an intent to destabilize and undermine the Court’s authority to prosecute former government officials. Accordingly, it also requires a political solution that redirects the institutional consolidation process toward an independent and transparent justice system.
The Judiciary in Panama is highly dependent on the other branches of government. The Executive controls its budget and the Legislature selects the members of the Supreme Court from the lists of names it receives from the President of the Republic. It is critical to resolve the current crisis in the Judiciary in order to raise the profile of the pending reforms agenda. The National Assembly must issue a timely decision and define the legal status of the complaints against justices of the Supreme Court (CSJ). It must come to a new political agreement to guarantee a transparent mechanism that includes citizen participation for the selection of Supreme Court justices. To this end, progress must be made in the following areas:
- Develop a new system at the constitutional and legislative levels for the appointment of Justices to the CSJ, under the responsibility of an entity that is independent of political authorities. It must use a system of competition for posts, with transparent criteria for the evaluation of candidates’ merits and professional experience, and guarantees of openness, public scrutiny, and citizen participation.
- Renew the agreements of the State Pact for Justice, in order to guide the process for the comprehensive reform of the justice system in Panama.
- Develop the institutional policies needed to begin the process of institutionalizing judicial training, as well as approve an implementation plan and timeline for its execution.
- Appoint the technical secretary of human resources in charge of the competitions for posts.
- Fully implement the new system of criminal procedure, providing it with the funds and capacity needed for its operation.
- Broaden access to justice for the most vulnerable sectors, improving legal aid services and developing community justice mechanisms.
 La Prensa, Diputados dilatan denuncias contra Magistrados de la CSJ, Panama, March 14, 2016:
 La Prensa, Once ONG exigen a la OEA no distinguir a Ayú Prado, Panama, February 10, 2016: http://www.prensa.com/judiciales/ONG-OEA-distinguir-Ayu-Prado_0_4412558793.html#sthash.p877hNuU.dpuf
La Prensa, Ayú Prado no será embajador de buena voluntad, Panama, February 12, 2016: