A New Dawn For Security in Panama?

[Admin_01]

...

The law was written in Spanish... sorry.   But I tried to translate legaleese Spanish into English.  For me sometimes is very hard to understand those words used by lawyers to impress normal people that are not lawyers.  So I apologize for my bad English.

...

Roger B,

Thank you for posting additional information about this important subject.

Speaking for the management of this website, we appreciate your interest and efforts. We would also like for you to know that you do not need to apologize for your English language skills. Spanish is the language of our adopted country of residence. Laws should be written in the language of the country. And as guests in your country we should be apologizing to you for our poor Spanish skills, not the reverse.

Thank you again. We appreciate your participation in this website.

[JudyS]

Posted with permission from Rainelda Mata-Kelly, the highly regarded Panamanian attorney:

The issue is that under our Constitution, a law cannot contravene a treaty signed by the Republic of Panama. 

 

It is not that the UN can threaten our sovereignty, it is that Panama as a sovereign nation has signed treaties that are commitments which are valid and binding and cannot be repealed by a law. 

 

Rainelda Mata-Kelly

Tel (+507) 216-9299

rmk@mata-kelly.com

 

Thanks to Rainelda for adding her authority to the discussion of treaties vs sovereignty. It would seem that by voluntarily signing treaties, countries agree to give up part of what might have been considered their sovereign rights.
 

So it would seem the nasty, dangerous, violent children who shoot and stab people will continue to be let go.  When this becomes generally known, it will probably  have a negative effect on Panama's tourism industry.

[JoJo]

Roger, you have always been a voice of reason and information. I for one greatly appreciate your posts which give us more insight into the laws, the culture and the beauty and grace of Panama.  Never apologize for your English. Were my Spanish better I wouldn't have complained about not being able to copy/paste the legal document for a better understanding of the law.

 

 

Edited October 30, 2015 by JoJo

[Brundageba]

Excellent...thanks Roger B.   Mobilization of NGO groups...such as "Big Brother/Big Sisters" that exist in the US , (groups such as the Kiwanis, Lions Club and I'm sure there are more) need to be encouraged to step up and take a bite out of youth crime by helping establish more programs.    The mentality of the barrio child criminal may be one that is feared here...I don't know.  I am also not informed as to how the social welfare system works here that mandates correction/protection of children in home settings that encourage crime.  My mom was a child social worker in a large city in the USA..  I grew up hearing her stories and her frustrations, and as well meeting her young clients.  Even in the best systems...this problem of juvenile crime is a challenge.  I remember in my college classes the question of whether or not a child should be tried as an adult was a big deal...still is....and it's 55 years later. 

One thing is clear .   If something pretty radical is not done quickly in this country, it will soon be a blood bath here with youth gangs.  That would be a shame to see happen.  Meanwhile each of us needs to take very seriously how very unprotected we are living in what is considered to be affluent communities by these young thugs.  Just when you least expect it...they could be in your face. Paranoid?  You bet.

[Roger B]

So it would seem the nasty, dangerous, violent children who shoot and stab people will continue to be let go.  When this becomes generally known, it will probably  have a negative effect on Panama's tourism industry.

Judy

 

Lawyers are the master of how to look for ways to twist laws.  They know their trade.  I am sure that if any politician is not afraid of the political cost he/she could pass a new law to tighten laws regarding criminals minors.  

But people's patience is going to an end.  If the authorities don't do something regarding this problem it will explode.  How?  well, people will take the law in their hands.  I have seen on the TV News that in some neighborhoods in Panama people caught minor criminals and have beaten then with their belts until police arrive. 

Right now there is a high amount of murders of minors gang members.  In Panama City they are killing each other.   The average age of those killed are 17 years old.  Their live expectancy is very low.  People in Panama have become harsh, cynical  and comment: "Another one dead.  Thanks God they are killing each other". 

 

[JudyS]

I received this reply from Sr. Alvarez, a representative of the Ministry of Security.  It is regarding the statement that Panama can't change it's law regarding juvenile incarceration because of a UN treaty.

From: Gilberto Álvarez <galvarez@minseg.gob.pa>
To: Judy Sacco <jwsacco@yahoo.com>
Sent: Friday, October 30, 2015 10:22 AM
Subject: RE: UN treaties and Panama law
 

Thank you Ms. Sacco,

I think that the minister said that tongue and cheek. It sometimes happens that small countries are not told directly  what to do, but if we do not do what is implied we are put on gray lists or in list of the countries that don’t cooperate.  Be assured that the minister are compromised with making Panama a more peaceful and safe place to visit and live, and on addressing the problem of juvenile crime in all aspects.

Kind regards

 

 

Edited October 30, 2015 by JudyS
add Security

[Roger B]

I received this reply from Sr. Alvarez, a representative of the Ministry of Security.  It is regarding the statement that Panama can't change it's law regarding juvenile incarceration because of a UN treaty.

From: Gilberto Álvarez <galvarez@minseg.gob.pa>
To: Judy Sacco <jwsacco@yahoo.com>
Sent: Friday, October 30, 2015 10:22 AM
Subject: RE: UN treaties and Panama law
 

Thank you Ms. Sacco,

I think that the minister said that tongue and cheek. It sometimes happens that small countries are not told directly  what to do, but if we do not do what is implied we are put on gray lists or in list of the countries that don’t cooperate.  Be assured that the minister are compromised with making Panama a more peaceful and safe place to visit and live, and on addressing the problem of juvenile crime in all aspects.

Kind regards

 

 

Judy

 

That is what I  knew and expressed in several previous messages I posted.  Some people think that agreements with world organizations doesn't have a coercitive ways to be enforced but reality behind the scenes is other.  It is the problem we have for being an small country.  In order for not being included in any colored list we should do what it is accorded in those agreements.  Those officials that work on those world agencies/organizations seems like they want to test their theories in smaller countries.  

But I think the pressure on the government is growing and this should change in a short time.  There are some hurdles to pass but this should and have to change.

 

 

[JohnF13]

I received this reply from Sr. Alvarez, a representative of the Ministry of Security.  It is regarding the statement that Panama can't change it's law regarding juvenile incarceration because of a UN treaty.

From: Gilberto Álvarez <galvarez@minseg.gob.pa>
To: Judy Sacco <jwsacco@yahoo.com>
Sent: Friday, October 30, 2015 10:22 AM
Subject: RE: UN treaties and Panama law
 

Thank you Ms. Sacco,

I think that the minister said that tongue and cheek. It sometimes happens that small countries are not told directly  what to do, but if we do not do what is implied we are put on gray lists or in list of the countries that don’t cooperate.  Be assured that the minister are compromised with making Panama a more peaceful and safe place to visit and live, and on addressing the problem of juvenile crime in all aspects.

Kind regards

 

 

To which, the reply should be, what are you going to do and when?  No more wriggle room.

[Brundageba]

It seems it's quite clear that it is near impossible to be placing these 12 year old gun toters who murder in jail....here according to what I read on the mandate of treaties signed by the Republic.     Rehab/retention/vocational institutions ( into which they are retained for purposes of redirecting their criminal paths) seems the only solution to immediately get them off the street. The Rep of Panama is now is a very tough spot...and so are we. Don Ray said it will probably take a blood bath and a major insurrection of the populous to see some real action. Ok so if it takes the immediate building of numerous "rehab/vocational" facilities ...fine , break ground!   That's how  I see it...or understand it.  Problem is (as Roger points out...) the politics of this makes movement in a positive direction quickly very difficult.

[Bud]

More about the big meeting last Tuesday at BCP Theater from an attendee:

http://panamaadvisoryinternationalgroup.com/blog/news-from-panama/boquete-community-events/

[Keith Woolford]

..and if you think it's dangerous here.

Yesterday the U.S. State Department issued an updated travel advisory for Honduras

"Due to the fact that "the levels of violence and crime are critically high" in the central American country, and that criminals operate with a "high degree of impunity". 

...The US embassy in Tegucigalpa has registered 42 murders of American citizens since 2010, with 10 of them since January of this year, according to the new alert. 

...Although Honduras has one of the highest rates of homicide in the world, the United States recognizes that the index has fallen from 86.5 per 100 thousand inhabitants in 2011 to 66 per 100 thousand in 2014, and "the estimates published in July 2015 predict a lower rate" for this year.

- See more en español at: http://www.prensa.com/mundo/Unidos-niveles-violencia-impunidad-Honduras_0_4335316617.html#sthash.seVACHEO.dpuf

 

 

 

[Keith Woolford]

It's my belief as well that the U.N. Convention on the Rights of the Child does not bind a nation to additional legislation.

For example, in Canada the Youth Criminal Justice Act allows for the sentencing of minors as adults in certain cases.

Canada

Canada became a signatory to the Convention on 28 May 1990^[18] and ratified in 1991.^[19] Prior to ratifying the treaty, Canada's laws were either largely or entirely in conformity with the treaty. Youth criminal laws in Canada underwent major changes resulting in the Youth Criminal Justice Act (YCJA) which went into effect on 1 April 2003. The Act specifically references Canada's different commitments under the Convention.

There is a good summary of Canada's youth offender act and it's amendments here. http://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/back-hist.html

This is a small excerpt dealing with adult sentencing.

In 2012, Parliament removed the presumptive offence scheme from the YCJA while retaining Crown applications for adult sentences for youth. Parliament also amended the adult sentencing provisions to include the following:

• If a young person is 14 years of age or older and is charged with a serious violent offence, the prosecutor must consider applying to the court for an adult sentence. If the prosecutor decides not to apply for an adult sentence, the prosecutor must advise the court. A province may decide to change the age at which this obligation is triggered from 14 to 15 or 16.
• A court can impose an adult sentence only if (a) the prosecution rebuts the presumption that the young person has diminished moral blameworthiness or culpability and (b) a youth sentence would not be of sufficient length to hold the young person accountable.
• A young person under the age of 18 who receives an adult sentence is to be placed in a youth facility and may not be placed in an adult correctional facility. Once the young person turns 18, he or she may be placed in an adult facility.

 

[Bonnie]

Largely as a result of the remarks by the Minister of Security at the recent Tuesday morning meeting, a lot has been made of the UN treaty constraining the incarceration of minors in adult jails and prisons. This rationale seemed suspect to me from the inception since, as Keith points out, there are countries that are parties to the UN treaty, the United States and Canada included, that allow for the imprisonment of minors for certain specified offenses. I was impelled to do a little research, and this is what I found.                                                  

The treaty at issue, adopted September 2, 1990, is formally called Convention on the Rights of the Child. The particular article of the treaty at issue is as follows [emphasis mine]:

Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

It is significant that imprisonment of a child must be in conformity with the law of that country. I can envision no circumstances when it would be in a child’s best interest to be incarcerated with adults, so the meaning of that particular phrase escapes me, but this subsection clearly provides an exception for what may be considered exceptional circumstances. The upshot of this, as I read it, is that a country that is a party to the treaty may adopt a law defining under what exceptional circumstances a child may be considered an adult. This would be in conformance with the situation in many countries that have embraced the UN’s treaty and aims. I would note that the entire treaty carries with it a significant international oversight mechanism to ensure that its provisions are enforced and, presumably, that exceptions such as those noted above are defined narrowly and in conformance with the overall aim of the treaty.

I think it is important that both Panamanians and expats understand this and that Panamanian authorities not be allowed to use the UN treaty as an excuse for not adopting stricter laws against juvenile offenders. I encourage everyone to cite the actual provisions of the treaty when communicating with lawmakers and the Minister, as we all have been encouraged to do.

[Keith Woolford]

Largely as a result of the remarks by the Minister of Security at the recent Tuesday morning meeting, a lot has been made of the UN treaty constraining the incarceration of minors in adult jails and prisons. This rationale seemed suspect to me from the inception since, as Keith points out, there are countries that are parties to the UN treaty, the United States and Canada included, that allow for the imprisonment of minors for certain specified offenses. I was impelled to do a little research, and this is what I found.                                                  

 

Actually Bonnie, I don't believe that the United States is one of the signatories of this Convention.

Edited November 4, 2015 by Keith Woolford

[Bonnie]

You are essentially correct, Keith, and I apologize for mistakenly offering the U.S. as an example. Upon deeper investigation, I see that, while was U.S. was instrumental in developing the treaty and is a signatory to it, the treaty as a whole has never been ratified by the U.S. Senate, for which failure politics is roundly cited. Conservative and religious elements claim many of the treaty's articles to be unconstitutional, a claim largely discredited by legal scholars and the courts.  However, the U.S. is considered to be in compliance with Article 37--the rights-of-children article in discussion here--as a result of the Supreme Court's having declared the execution of minors as well as mandatory sentences of life without the possibility of parole for minors to be unconstitutional. The U.S. is the only one of 196 member countries of the U.N. that has not ratified the treaty.

[MarkoBoquete]

So if the existing Panamanian laws regarding minors allows detention, there should not be a problem. However, as you say, the treaty provides "... a significant international oversight mechanism." What we don't know is what would be required to make changes in the procedures Panama follows in compliance with the treaty. Given the nature of the UN and Panamanian deliberative mechanisms, it could be a drawn out process. it would be a wonderful surprise to find out that it is not so and could be done expeditiously. 

Edited November 4, 2015 by MarkoBoquete

[Bonnie]

I am not aware, of course, of all the ins and outs of the treaty and its enforcement, but Keith's example of what Canada does is instructive. Canadian law provides for the "exceptional cases" the treaty demands in order to treat juveniles as adults and provides for juvenile offenders to be held in juvenile facilities rather than adult prisons. In all fairness, Minister Aguilera is aware of this possibility because he mentioned in his talk that more developed countries have the social networks in place (including juvenile jails) to handle underage offenders whereas Panama does not, suggesting, I suppose, that such a network is beyond the country's financial means.

I want to make clear that I am  not in favor of capital punishment for juveniles, for incarceration of juveniles without the possibility of parole, or for the incarceration of juveniles in adult jails. I believe the treaty to be both responsible and reasonable in this regard. Unless I'm missing something, it seems to me that if Panama truly wants to deal with violent underage offenders, it is going to have to both change its laws and/or procedures and build some juvenile jails in order to remain in compliance with Article 37 of the UN treaty.

Edited November 4, 2015 by Bonnie