Recently a law adding a chapter on environmental crimes to the Penal Code was passed by the legislature, and although it has not yet been signed by the president, it could be a positive development in the country's criminal law. In simple terms, those who damage our natural resources and the environment could be sent to prison. The adoption of such a legal instrument would do much to complete the tools necessary for Panama's management of its environment.
The legislative debate was unusual in various respects, one of which was that two separate committees considered the bill in a coordinated manner. It was initially presented to the whole assembly, then under the rules referred to the committee on Government, Justice and Constitutional Issues, which is normal in matters affecting amendment of the Penal Code. The Population, Environment and Development Committee was also allowed to participate actively in internal work sessions, given its experience and knowledge of the subject; this internal coordination is unusual in Panamanian parliamentary routine and perhaps should be noted.
In case of a presidential veto
Approval of the law would create a historic moment for the new administration, especially for President Martín Torrijos, who has to sign it or veto it. If he signs it, we would simply have the first legal framework to impose exemplary sanctions for crimes against the environment.
If executive approval is withheld, the president could follow one of two paths, those of full or partial veto. A partial presidential veto indicates that the law is a good one, but a particular article, or perhaps several, are not. In any such case, further legislative debate is required only on the vetoed articles, it being understood that the rest of the bill has been approved. In such cases, the bill is returned to the floor of the National Assembly for second reading, when articles in question could be modified. A similar case occurred recently in the law creating the Coiba National Park, a single article of which was vetoed by President Mireya Moscoso. After exhaustive floor debate, the law was returned to the Presidential Palace with legislative approval, but without the controversial article. Later, the executive's final approval was granted. It is now in force, and thanks to the wide discussion and its content, it is an exemplary law.
In the case of a full veto, the law is returned to the floor of the assembly for third reading, when there is debate only on the bill as a whole; at this point, it cannot be amended. The assembly may choose to designate the bill an override, which is not only unusual, but also presents a challenge by the legislative branch to the executive branch. This situation has few precedents in our country.
The new ANAM rule
The enforcement of the new legal framework depends as much on the citizenry as it does on the authorities. It gives to the National Environmental Authority (Autoridad Nacional del Ambiente or "ANAM") primary responsibility for regulation of the so-called hunting preserves, the moratorium on collecting wildlife specimens, and, above all, for adopting regulations that will clearly define the numbers of specimens permitted and the methods permitted for subsistence hunting. These are urgent matters.
Enforcement of the new law --- presuming the president approves it --- depends not only on ANAM, but also on other agencies. ANAM would still be responsible for collecting evidence in enforcement cases (may they never occur!). In cases involving contamination of water, soil, or the air, the agency will be required to definitively prove the criminal acts. This would require analysis by laboratories having the required technicians and chemical reagents.
The agency's 2005 budget has been passed into law. We do not know if additional resources will be provided in future amendments. My sense is that they will not. What would it require? In the first place, the political will of the heads of relevant agencies: ANAM, the chairman of the assembly budget committee, and the deputies themselves, the Ministry of the Economy and Finance, and, of course, adequate revenue and resource allocation.
The Attorney General's office is responsible for criminal investigations and the prosecution of environmental crimes, under the Judicial Code. On the other hand, Law 41 on the Environment creates an environmental prosecutor. The law, however, has not been funded. How does the Panamanian government expect to fulfill its responsibilities if it lacks the required resources? Or is it a fact that deep down there is no real concern for environmental matters and respect for the rules. If operational resources are not provided, should conclude that this is the case?
The constitution and environmental protection
The Panamanian government has the authority and the responsibility for overseeing protection of what the lawyers call "general rights," meaning that which belongs to all, such as the seas, the air, flora and fauna, soil, river waters; in short society in general has the right to nature. This authority is found in the national constitution, our Magna Carta, which was recently amended. One might cite specific articles found under the heading of environmental regulation, obvious and easily understood, as all good laws should be. Among these [Chapter 7, Article 118, which declares that "guaranteeing the right of the inhabitants to live in a healthy environment free from contamination is a fundamental duty of the state...."
The same Chapter 7 clearly makes citizens and the state responsible for "encouraging economic and social development that prevents pollution, maintains ecological balance, and avoids the destruction of ecosystems."
Articles 120 and 121 requires rational exploitation of nature resources, "in order to prevent social, economic, and environmental damage."
Other laws providing criminal penalties
As in most countries, Panama has an environmental legal structure that includes administrative regulations. Such is the case for Law 24 (Act of June 7, 1995) on Wildlife, and Law 2 (Act of Feb. 3, 1994), known as the Forestry Law. Both include articles providing for both administrative sanctions and criminal penalties. Jurists believe these criminal penalties should also be included in the Penal Code, rather than in a law providing for administrative penalties. In fact, as a result of debate on the new criminal law, the penal sanctions included in these statutes are repealed and included in the new law. The law provides for severe penalties in cases of negligence and premeditation.
In Panamanian law, civil law, criminal, civil and administrative procedures are not considered to be in conflict or to be exclusive. Where legal standards are violated, civil suits for damages, criminal prosecutions ending in possible prison sentences, and administrative suits resulting in fines, may all be filed.
New criminal penalties and definitions of new environmental crimes
Among the many crimes covered by the new law, the following are the most significant:
"Article 395. ...construction of dikes, retaining walls, diversion of riverbeds, creeks and other natural water courses... 6 months to 2 years in prison."
"Article 403. ...burning vegetation... 3 years in prison and fine in lieu of 50-150 days' incarceration."
"Article 404. A person legally authorized to carry out environmental impact studies, environmental audits, or environmental remediation and management programs, environmental management plans, forestry management plans, forestry inventories or other documents of a similar nature, who knowing incorporates or provides false or inaccurate information, or who omits basic information... 1 to 3 years."
"Article 406. A developer who fails to comply with... impact studies... audits or... remediation and management plans... approved by the National Environmental Authority... 1 to 3 years."
"Article 407. [One who] builds or subdivides creating grave risk to the environment or the life of the inhabitants... 2 to 4 years."
"Article 408. A public official who grants permit or authorizes works or projects on surfaces subject to inundation o other high risk... 3 to 5 years in prison and suspension from office for the same period."
Environmental laws in other countries
Neighboring Latin American countries have environmental laws whose purpose is to provide for the enjoyment and rational use of the natural legacy of all. Among them are Costa Rica, El Salvador, Honduras, Nicaragua, Guatemala, Venezuela and Colombia. Most of these countries suplemented their environmental laws with updated criminal standards.
Whether to incorporate the new chapter in the Penal Code is a test for Panamanian society and government. The environmentalists who complained so loudly and exerted so much pressure on the previous administration should be alert to the possibility that new attempts to create a environmental penal law could remain merely that, an attempt. One precedent occurred in the government of ex-President Guillermo Endara, when the then Attorney General, Rogelio Cruz, introduced a criminal statute which only got as far as first reading in the assembly. Later, during the administration of Ernest Pérez Balladares, the first environmental protection law was vetoed. In 1998, Panama finally won an organic environmental law. During the last administration, the environmental penal law that was introduced was vetoed.
There is a common element in the environmental agendas of previous administrations. They have felt compelled to issue environmental standards that further economic development models. There is been a continuing confusion between environmental preservation and the radical positions of the 1970s, when the green Cult of the Untouchable reigned among environmentalists. More than 10 years have passed since the Rio de Janeiro summit, where the idea of sustainable national development was first popularly understood as the only intelligent way to development. Our authorities still do not understand it. But since the winners of the last electoral campaign promised a new country, newly elected officials should demonstrate the political will leading to a new judicial stage in our society.
The decision is in the hands of one person: the new president.
The author is the former director of the National Environmental Authority. Translated for The Panama News and slightly abridged by David M. Fishlow, Langhum Mitchell Communications, Washington DC
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The proposed environmental crimes law
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