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opinion
Also in this section: Legal insecurity by Miguel Antonio Bernal
Recent governmental decisions confirm that one of the causes of the growing legal insecurity that reigns in our country is, as I see it, the non-compliance of state institutions with international accords about human rights, the majority of which are part of the law of this republic. We have to define "legal security," given that it's the point of departure from which to advocate for the obligatory character of international human rights instruments:
Legal security is the stability of the institutions and the authentic effect of the law with respect to widely proclaimed rights and effective recourse to it in the face of non-recognition or transgressions, by way of actions that re-establish justice against alleged negations, within a framework that is set in the rule of law. Diccionario Enciclopédico de Derecho Usual de Cabanella
As a consequence of the permanent and close tie that exists between the law and the state, there arises the rule of law, that is, the state entirely subordinated to legal norms, the state whose fundamental mission is to secure law in society. According to Laband, the characteristic of the rule of law is that the state can't require any action or impose any omission, nor can it order or prohibit anything beyond that allowed by virtue of a legal precept. With that there is established in favor of individuals the guarantee that the "coercive apparatus" of the state will always be used according to forms and conditions that are previously fixed by legal norms. The certain recognition of the form in which the law will be applied in every case is what is know as legal security.
The state organized under the all-encompassing dominion of law --- the rule of law --- confers upon all citizens the certainty about the form in which the law will be executed, in such a way that each individual can foresee how the coercive force of the state will be used or what is prohibited, permitted or required to be done in different circumstance, for that person and for others. In this fashion the individual is cloaked in the certainty that the rights that the law consecrates for his or her benefit are effective and that the state, through its various organs, will respect those rights and will make other persons respect them, without permitting the authorities to fall into abuses or excesses of power.
But more than a protection against individuals, legal security is a guarantee of respect for the law by all the state authorities, in their every manifestation, because it, more than private persons, can and should fear the violation of the established legal order.
Thus the rule of law principally, according to García Pelayo, "expresses itself in a system of carefully circumscribed domains, in a fashion that every authority of organ can only act within the framework set up for it and in the case of excesses beyond those limits the individual is given legal recourses." In this way the citizen has the capacity to assert his or her rights against peers and also against the state. Legal security has come to be one of the law's goals, and consists in the sincere respect for legitimately acquired rights as well as the creation of entities and institutions dedicated to helping in the conservation of these rights, to see that these rights are not violated, degraded or inverted, and to allow the persons and diverse groups that make up society the assurance that their rights and guarantees are going to be respected.
When these rights are made vulnerable, violated or go unrecognized, we can say that we are in a climate of legal insecurity. Legal insecurity is a violation of the stability of institutions and the non-recognition of rights that have been proclaimed and acquired.
Well, then, up to what point can you have firm confidence in the effect of the law and its impartial and just administration, in an epoch of rapid and profound social transformations? Such times mean that it's necessary to maintain a concept of legal security that can give sufficient response to the changes of our times.
Legal insecurity is a feeling of instability, insecurity and disquiet and, whether it's desired or not, omits principles like the dominion of law, freedom and propriety and well as the good exercise of the jurisdictional function by the state, which at least theoretically is the maximum guarantor of the rights and privileges of every individual. Legal insecurity thus carries with it authoritarian principles, arbitrary actions, backsliding in the field of constitutional law, and deterioration of the state's legal institutions as to its norms, organization and correct application of the law. In sum, it's a total, voluntary and drastic omission of the law.
Legal insecurity is created when the security and stability of the institutions and effect of the law are attacked, or by abuse of authority of public servants in the application of the law, or when justice is delayed, or when there are judgments contrary to the law as in very personal and partial decisions that only benefit a few and attack the legal security of Panamanians.
Legal insecurity, apart from contributing to uncertainty, doubt and abeyance, reverberates in society's sense of respect, giving it a sense of clashing, controversy and contradiction that rule out the true stability and permanency of legal institutions.
When the institutions don't function as foreseen by modern constitutional principles and show themselves incapable of resolving the complex problems that the conduct of society pose, they are forced into a crisis situation. Some call it an institutional crisis, but it's more properly called a constitutional crisis.
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