It’s a sad state of affairs this week. In Panama, Martinelli found “not guilty” and Epstein committing suicide. Both evading justice in their different ways.
And I’m sorry – the lawyer in me is going on a mini-rant here about what I consider to be a terrible miscarriage for Lady Justice. I believe that not only must justice be done, but it must also be seen to be done! While Epstein may be dead, where’s the justice for the victims? And what happens to any others that might have been implicated by his testimony?
For Panama – the verdict given by Panama’s courts in the case against Martinelli simply serves to convince the masses that the entire justice system in Panama is corrupt.
For years, this theme has been playing out in the news. Papers like the Los Angeles Times posted articles – as far back as 2015 – with statements such as:
Corruption has long been seen as a way of life in little-regulated, intrigue-drenched Panama, the skinny canal-bisected country that links the two American continents. Yet the cases mounting in the aftermath of the Martinelli administration, which concluded in July 2014, are mind-boggling.In Panama, corruption inquiries grow after president’s tenure ends
What is justice and why does it matter?
Justice is fundamental in any democracy – otherwise we simply have anarchy – and a rejection of the law and institutions of law. It doesn’t matter if you live in a country with 300 million or a banana republic with 4 million!
The idea of justice occupies centre stage both in ethics, and in legal and political philosophy. We apply it to individual actions, to laws, and to public policies, and we think in each case that if they are unjust this is a strong, maybe even conclusive, reason to reject them.Stanford Encyclopedia of Philosophy: Justice
In order to have justice, we need to know that the law applies. And that it will be applied. This is know as “the rule of law” – where law is what rules, rather than personal opinions or dictatorship.
The rule of law, or supremacy of the law, embodies three concepts:
the absolute predominance of regular law, so that the government has no arbitrary authority over the citizen;Oxford Reference
the equal subjection of all (including officials) to the ordinary law administered by the ordinary courts;
and the fact that the citizen’s personal freedoms are formulated and protected by the ordinary law rather than by abstract constitutional declarations.
The entrance of political appointments
But, as many in Panama are pointing out, Martinelli was only in jail for the term of the previous administration. A new President has taken power, and suddenly he’s off the hook! If the verdict had come out 45 days ago, it would have caused less controversy and questions! Forty five days ago, the political party in power was the party pushing for his indictment and trial. Now, however, the power has passed to the PRD (Revolutionary Democratic Party), and this raises questions regarding whether all of this was simply a show.
In Panama, the Prosecutor General (who in the US would be the Attorney General) is appointed for a 10-year term. However, for the past 15 years, not a single Prosecutor General has actually served their 10-year term! The purpose of the 10-year term is that each Prosecutor General should serve THROUGH 2 terms of government, and Panama does not have reelection of the President, therefore this would never coincide with Presidential terms.
So far, however, this has not been the case! Prosecutor Generals have “resigned” at the beginning of a new Presidential term, often with forced resignations, and new Prosecutor Generals appointed. This raises serious doubts regarding the separation of powers.
Similarly, there is always the debate regarding the appointment of Supreme Court Justices, who are appointed for 10-year terms, and who are recommended by the President and Cabinet, and ratified by the Legislature. Nonetheless, recent appointments have been viewed as more political than actual jurists!
Releasing the judgement of not guilty
Friday afternoon Panamanian news channels were in an uproar with the news of the not-guilty verdict issued by the 3-judge panel. The Prosecutor General had been requesting a 21-year sentence for political espionage and misuse of public funds. At no time has Martinelli been charged with more serious charges relating to alleged kickbacks and other corruption rumours that have been circulating for the past eight years, as even in Italy these rumours did not lead to any charges against Martinelli, an Italian citizen (with dual citizenship with Panama).
According to the verdict read by one of the tribunal’s three judges, prosecutors “failed to prove” their theory and “reasonable doubts arose” about the accusations presented.
… The tribunal recognized “indications” of “activities outside the law” in the National Security Council, “however questions arise that the evidence did not solve.”Panama court finds ex-president Martinelli not guilty of spying charges
Nevertheless, there are some harsh criticisms (from victims and their legal counsel) regarding the findings, as the doubts regarding admissible evidence were already appealed to the Supreme Court, who validated the evidence presented. The criticisms go as far as to say that the justices did all they could to find evidence to find the accused not guilty, rather than looking at the evidence.
This verdict comes after the conviction of two of his co-defendants, who are both serving sentences. So – they were guilty but he isn’t?
Where does this leave Panama’s criminal justice system?
Without a doubt – no Utopia! I would go so far as to say “in crisis”.
The general state of affairs
Since 2018, civil groups and chambers of commerce have voiced their concerns about the effects of corruption on the judicial system. For example, early in 2018, the Panamanian Chamber of Commerce, Agriculture & Industry issued a damning report on the state of justice in Panama, stating the following:
Con relación al peligroso precedente de la impunidad general, los integrantes del Observatorio estiman que es evidente que la Nación ha estado realizando esfuerzos significativos para contar con leyes que sirvan para combatir la corrupción y los delitos contra la administración pública; sin embargo, la falta de aplicación de las normas penales que sancionan los delitos, en sentido contrario, terminan siendo una invitación para que éstos se cometan; por tanto, sin efectos negativos por la conducta punible y ante el ejemplo del mejoramiento aparente de las condiciones materiales de vida de quienes delinquen, muchos, particularmente los más jóvenes, caen con facilidad en la tentación de buscar por el camino fácil, un bienestar de espejismo, en que no distinguen lo bueno de lo malo, pero afectan a la sociedad en general.Presentan segundo informe del Observatorio del Sistema Judicial
Translation (I am SO sorry. The paragraph above a SINGLE sentence. The translator in me wanted to translate as written – but I could not bring myself to write that badly! So – my translation has more sentences.):
With respect to the dangerous precent of general impunity, the members of this [committee] consider that it is evident that the Nation is taking significant measures to adopt laws to combat corruption and crimes against public administratration. However, the lack of application of these laws, which penalise such criminal acts, ends up being an invitation for these to be committed. Therefore, with no negative effects on criminal behaviour and the example of an improved standard of living for those who commit such crimes, many, especially the young, easily fall into the temptation of the easy path, a wellbeing in which they fail to distinguish right from wrong, and yet affect all of society.
The particular malady which affects us
As pointed out today by Magaly Castillo – Dean of the Law School at USMA – the problem starts with the very appointment of judges who have not followed a career path appropriate for their appointment! Some have likened the system to being in ICU!
Some twitter accounts even pedicted early Friday morning that “an ecological arrangement” had been reached and that the verdict would be handed down shortly!
From the start of this case, justices have been stating that they have a conflict of interest and stepping down from the case, leaving subordinates to write the verdicts and take the case. These subordinates, unfortunately, have no long-term responsibility for their verdicts and decision made.
A tragic week for justice.
Even if the three justices in this case are technically correct – they have simply ratified the already existing opinion in the country that only the poor will ever be convicted of crimes, and that you are better off to steal $200 million than to steal $10.00! Because the only crime that pays is big crime!
If you want to really do well, be elected to public office!