1999 Country Reports on Human Rights Practices
Released by the Bureau of Democracy, Human Rights, and Labor
U.S. Department of State, February 25, 2000
PANAMA
Panama is a representative democracy with an elected executive composed of a president and two vice presidents, an elected 71-member legislature, and an appointed judiciary. In May voters elected President Mireya Moscoso, who replaced former President Ernesto Perez Balladares on September 1. Although the Constitution provides for an independent judiciary, the judicial system is subject to corruption and political manipulation.
Panama has had no military forces since 1989. In 1990 the Government created the Panamanian Public Forces, which consist of the Panamanian National Police (PNP), the National Maritime Service (SMN), the National Air Service (SAN), and the Institutional Protection Service (SPI). In 1994 a constitutional amendment formally prohibited the establishment of a permanent military, although it contains a provision for the temporary formation of a " special police force " to protect the borders in case of a " threat of external aggression. " The Ministry of Government and Justice oversees the PNP, SMN, and SAN, while the Ministry of the Presidency supervises the SPI. The PNP are responsible for law enforcement. The Judicial Technical Police (PTJ) perform criminal investigations in support of public prosecutors. The PTJ is a semiautonomous body with leadership appointed by the Supreme Court. Police forces respond to civilian authority, have civilian directors, and have internal review procedures to deal with police misconduct. There were reports of instances of abuse by some members of the security forces.
The service-oriented economy uses the U.S. dollar as currency, calling it the Balboa. Gross domestic product grew by 4.6 percent in 1998, but growth for 1999 was projected to be below 4 percent. The Ministry of Economy and Finance expects modestly higher growth in 2000 as the effects of economic liberalization and the Panama Canal transfer become evident. Poverty persists and income distribution remains extremely skewed, with large disparities between rich and poor. Unemployment is estimated at 13 percent.
The Government generally respected the human rights of its citizens; however, there continued to be serious problems in several areas. Police and prison guards on occasion used excessive force against detainees and prisoners, and on occasion police used force against protesters. Credible reports of corruption within both the PNP and PTJ contributed to some police dismissals. Despite some modest improvements, overall prison conditions remained harsh, with occasional outbreaks of internal prison violence. Prisoners were subject to arbitrary and prolonged pretrial detention. The judiciary was subject to political manipulation, and the criminal justice system was inefficient and often corrupt. The Government began implementation of a $27 million program to reduce case backlogs, inefficiency, and corruption in the judiciary. There were instances of illegal searches and political pressure on the media. Violence against women remained a serious problem, and discrimination against women persisted. Discrimination against indigenous people and blacks is a problem. Child labor also is a problem. Worker rights were limited in export processing zones. Trafficking in persons, particularly Asian immigrants, also was a problem.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom From:
a. Political and Other Extrajudicial Killing
There were no reports of political or other extrajudicial killings.
A Public Ministry investigation concluded in August 1998 that three PNP guards accused of the March 1997 beating death of detainee Jose Luis Alvarado at the Tinajitas prison should stand trial. The guards remain separated from the PNP pending the outcome of the trial, but as of year's end there had been no further action in this case.
There was no further action in the PNP investigation into the June 1997 shooting death of Ngobe-Bugle tribe member Juan Santos Chobra.
In September President Moscoso rescinded pardons granted by former President Perez Balladares for 33 former civilian and military collaborators of former ruler General Manuel Noriega, in order to allow the Government to continue prosecutions of officials for abuses committed during the dictatorship--from 1968 to 1989. One such official reportedly was involved in the execution of nine persons following a failed coup attempt against Noriega in 1989.
In September the authorities discovered an unmarked grave containing two bodies on the grounds of a former military base near Panama City. One of the bodies was believed to be that of Hector Gallego, a Colombian priest who disappeared in 1971 during the Torrijos dictatorship. In 1992 after the return of civilian rule, three former military officers were tried for his murder and given lengthy prison sentences. There was also speculation that the other body was that of Eber Quintanar, an accused guerrilla reportedly killed by the National Guard in 1969. After several DNA tests, investigators determined that the remains belonged to neither Gallego nor Quintanar. As of year's end, the identity of the corpses was still unknown. During the investigation, longstanding rumors of other gravesites scattered around the country reemerged in the press. Investigators initiated excavations at several sites but did not achieve any results by year's end.
b. Disappearance
There were no reports of politically motivated disappearances.
Guerrillas from the Revolutionary Armed Forces of Colombia (FARC) reportedly kidnaped persons in the Darien region along the border with Colombia. At year's end, they had abducted three persons and held them for ransom; there were reports that the FARC harassed citizens and even killed some persons, but there were no confirmed killings.
The Hector Gallego Committee for Disappeared Relatives maintains a list of 120 people who disappeared during the military dictatorships of 1968-89.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution prohibits the use of measures that could harm the physical, mental, or moral integrity of prisoners or detainees; however, while the public security forces generally performed in a professional and restrained manner, there were some reports of excessive use of force or inhuman punishment, particularly against prison inmates. There also were reports that police used physical violence and psychological threats to control detainees during the initial arrest, interrogation, and holding phases.
The legislation providing the legal basis for the PNP, promulgated in June 1997, includes specific guidelines for use of force, including deadly force; requires that police officers respect human rights; and prohibits instigation or tolerance of torture, cruelty, or other inhuman or degrading behavior. However, there is no follow-on training in the use of force provided to the PNP.
The PTJ and the PNP have offices of professional responsibility that act as internal affairs organs to hold officers accountable for their actions. Both have staffs of independent investigators as well as administrative authority to open internal investigations. In both organizations, a defined legal process is followed where, upon completion of the process, the respective director has the final authority to determine the disposition of each case. Penalties include reduction in rank, dismissal, and in severe cases, criminal prosecution. The PNP deputy director and secretary general address human rights issues that arise in the police force.
Corruption among police officers remained a problem, but in some cases, PNP and PTJ directors enforced disciplinary measures against officers shown to be involved in illicit activities. However, both organizations only react to egregious abuses, due to a lack of staff, independence, and institutional priority. Credible reports of corruption within both the PNP and PTJ contributed to some police dismissals.
According to residents of the Pueblo Nuevo neighborhood, in March police shot a minor who was lying on the ground in handcuffs. The authorities placed a sergeant and three officers on administrative duty while the PNP's Office of Professional Responsibility investigated, and sent the case to the PNP's disciplinary committee. At year's end, the investigation continued, and the officers remained on administrative duty.
In April the Office of Professional Responsibility stated that it was investigating 50 police officers for poor conduct, including the use of excessive force and violations of citizens' human rights. In addition to the Pueblo Nuevo shooting, the office sent the case of an alleged police attack on two sisters in San Miguelito to the Disciplinary Committee of the PNP.
There were several instances in which police responded with force to demonstrations. For example, in February and in August the police used tear gas and bird shot to disperse protesters (see Section 2.b.).
Police arrested and detained children for minor infractions during neighborhood sweeps (see Section 5).
The FARC guerrillas and the paramilitary forces of the United Self-Defense Forces of Colombia (AUC) share a long history of spillover of violence from Colombia into the border area on the Darien peninsula, including killings, kidnaping, robbery, and other forms of harassment of innocent bystanders. In November the AUC reportedly forced the evacuation of the San Blas town of La Bonga and burned it to the ground.
Prison conditions throughout the country remained harsh and a threat to prisoners' health and safety. Most prisons are dilapidated and overcrowded. Medical screening and care is inadequate, with tuberculosis and other communicable diseases common among the prison population. Frequent gang battles injured or killed numerous inmates. Many of the problems within the prisons stem not only from overcrowding but also from the lack of separation of inmates by classification according to the type or severity of the crime committed. Gang violence, insufficient budgets, and abuse by prison guards also are problems of the prison system.
The General Penitentiary Directorate (DGSP) largely depends on PNP officers, who are trained inadequately for prison duty, to supply its guard force. Civilian corrections officers or " custodians " handle inmates within La Joya, El Renacer, and the central women's prison (which uses only female guards). The DGSP has authority to discipline prison guards with criminal or civil sanctions.
President Perez Balladares' Minister of Government and Justice attempted to introduce some reforms of the penal system. He changed the prison management structure in June and replaced the Department of Corrections with the DGSP, but substantive reform was lacking. In September President Moscoso's Minister of Government and Justice, Winston Spadafora, promised to make prison reform a top priority. PNP Director Carlos Bares also promised reform, stating in September that prison guard responsibilities should fall to civilian corrections officers and not the PNP. However, at year's end, PNP members continued to provide perimeter security at the prisons. Prison directors supervise " custodians " who provide internal security.
Prison conditions on Coiba Island Penal Colony remained harsh and dangerous. In January 1998, a prison gang reportedly beheaded four of five prison escapees who belonged to a rival gang. The authorities accused 14 prisoners of participating in the killings, but these prisoners continued to maintain their innocence. The lone survivor and witness is in a maximum security cell. Both guards and prisoners have been implicated in the investigation into the other eight murders discovered in 1998, but the authorities had brought no one to trial by year's end. Although national prison authorities had planned to close Coiba, they continued to use the island prison colony to relieve overcrowding at the two largest prisons, La Joya and La Joyita. Prison officials also had attempted to establish order in the other prisons by moving dangerous prisoners to Coiba. However, after completion of two new compounds, La Joya became the primary maximum security facility and houses most prisoners accused of serious crimes. This enabled the authorities to use Coiba to hold prisoners accused of lesser crimes and to relieve overcrowding in the prisons of the central provinces (i.e., outside Panama City and Colon). The Government acknowledges that it must keep Coiba open, but it has not made adequate provisions for health, security, and other basic needs of prisoners there.
The authorities have not yet brought to trial many of the 361 prisoners on Coiba Island. Geographic isolation and lack of communications separated detainees from their attorneys and caused many to miss trials. Prisoners suffer from malnutrition and shortages of potable water, and medical care is practically nonexistent. Coiba has a civilian administrator, but its guard force still consists of police guards instead of civilian corrections officers. Escapes from Coiba reportedly are common.
According to unverified press reports, eight inmates at Coiba have AIDS. The prisoners told reporters that they are isolated in small cells and that medical attention is provided once a year. At La Joya prison, 22 inmates with AIDS went on a hunger strike in June to protest their lack of access to medical treatment and their need for special permits to receive medicine. La Joya has a planned capacity of 1,250, yet houses over 2,000 inmates.
Prison conditions in Colon province also are harsh. According to the Human Rights Commission of the Legislative Assembly, prisoners at the Women's Prison of Colon must contend with overcrowding, semidarkness day and night, constantly wet floors, and virtually no health care. The Commission also described the Public Prison of Colon as a " time bomb, " which fails to provide the most basic health needs. The prison frequently has no running water or functioning sewage system. In June approximately 150 inmates at the Colon women's prison refused to return to their cells in order to force a dialog with the Corrections Director and Minister of Government and Justice. The inmates complained about the food, the failure to release inmates who had served two-thirds of their sentences with good behavior, the lack of rehabilitation or skills programs, and the sudden absence of Prison Director Cristina Torres. Then-Corrections Director Maritza Grifo acknowledged the overcrowding problem; 576 inmates were housed in a facility for 325 persons, and 61 persons eligible for conditional release still were incarcerated. The inmates' protest ended without violence after officials promised to investigate the complaints. As of year's end, there had been no substantive reform of the prison.
Conditions at women's prisons in Panama City and Chiriqui province and at the Juvenile Detention Center were noticeably better than at adult male prisons. However, female prisoners, especially those in the primary detention area, reportedly suffered from overcrowding, poor medical care, and lack of basic supplies for personal hygiene. Juvenile Detention Centers throughout the country suffer from inadequate resources to provide for education or adequate supervision of children, many of whom spend a majority of their time in an empty cell.
The current prison system has over 8,600 prisoners with only 6,843 allotted positions. Prison administrators plan to close both the Colon Women's Prison and the Public Prison of Colon and shift those inmates to Nueva Esperanza prison. The new inmates are to be housed in separate sections of Nueva Esperanza, where construction was quite advanced at year's end, with some of the new cells already outfitted with bunks and toilets. However, inmates from the rapidly deteriorating Public Prison reportedly were apprehensive about being moved to Nueva Esperanza, where their access to the outdoors will be limited.
In July 1998, the authorities introduced organizational reforms of the prison system, including a conditional release program for inmates charged with minor offenses who have served a substantial part of their sentence. The new government continued to implement the conditional release program, and released some 60 inmates by year's end, with new rounds expected for early 2000. The release program has already helped relieve pressure on the country's overcrowded prisons. In June former National Penitentiary Director Enriqueta Davis filed an 80-page criminal complaint against then-Minister of Government and Justice Mariela Sagel. The complaint alleged that Sagel knew about prisoners buying furloughs, funds being mismanaged, and other abuses, yet refused to take action. Davis attributed other problems to the lack of modern administrative procedures. For example, because records are kept manually at each location, there is no central archive or census of inmates. The National Council for Private Enterprise (CONEP) publicly asked then-President Perez Balladares to look into Davis's allegations. CONEP expressed concern over the disappearance of materials and food that were destined for the penitentiary system. Several other reports of corruption and misallocation of prison resources appeared in the media throughout the year.
The Government generally allows prison visits by independent human rights monitors. However, the authorities arrange appointments ahead of time, and monitors generally speak to prisoners in the presence of guards or administrators. Prisoners may not feel comfortable speaking freely under such conditions, and they have expressed fear of retaliation if they complain. Officials from the Ombudsman's Office occasionally had trouble gaining immediate access to some prisons, but various procedural details were worked out and it appeared that the situation had improved by year's end.
d. Arbitrary Arrest, Detention, or Exile
The Constitution stipulates that arrests must be carried out with a warrant issued by the appropriate authorities, and the Government generally respected this provision; however, the authorities often violated the provision that suspects are to be brought promptly before a judge. Exceptions are permitted when an officer apprehends a person during the commission of a crime, or when disrespect by an individual towards an officer prevents the officer from carrying out his duty. The law requires the arresting officer to inform the detainee immediately of the reasons for arrest or detention and of the right to immediate legal counsel, to be provided to the indigent by the State.
The Constitution also provides for judicial review of the legality of detention and mandates the immediate release of any person detained or arrested illegally. The Constitution prohibits police from detaining suspects for more than 24 hours without bringing them before a competent judicial authority. In practice, the authorities often violated the 24-hour time limit by several days. Under law the preliminary investigation phase may last 8 days to 2 months, and the follow-on investigation phase another 2 to 4 months, depending on the number of suspects. The courts frequently grant extensions of these limits, leaving the accused in detention for a long period without having been charged formally.
Extended pretrial detention continued to be one of the most serious human rights problems, in part a consequence of the elaborate notification phase in criminal cases. Many legal authorities (including court officials) criticized judges for excessive use of this measure. According to government statistics, there were 4,687 pretrial detainees, who constituted about 59 percent of the prison population, down from 65 percent in 1998. The average period of pretrial custody was 16 months, and pretrial detention in excess of the maximum sentence for the alleged crime was common. A legal mechanism exists to hold the Government financially accountable in cases where a detainee spends more than 1 year in jail but subsequently has all charges dismissed at a preliminary hearing. The dismissal must be either because the act of which the detainee was accused is not ruled a crime or because there is no evidence to link the suspect to the crime. Although this redress procedure is not complicated, few former detainees have employed it.
Legal alternatives to prison exist but are not widely implemented. Options such as house arrest have been used in some cases involving the elderly or minors, but require that the defendants have access to and understanding of their legal options.
The Constitution prohibits exile; there were no reports of forced exile.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary; however, the judiciary is susceptible to corruption and outside influence, including from other branches of government.
The President appoints nine Supreme Court magistrates to 10-year terms, subject to Legislative Assembly confirmation. New allegations of executive tampering with the judiciary arose with the creation of the Fifth Chamber of the Supreme Court. In July the Assembly passed a law that created a fifth chamber, which allowed then-President Perez Balladares to appoint three additional Supreme Court Justices before leaving office. In October the Assembly approved a Moscoso administration proposal to repeal the law, eliminate the three additional magistrate positions, and abolish the Fifth Chamber.
The Supreme Court magistrates appoint appellate (Superior Tribunal) judges, who, in turn, appoint circuit and municipal court judges in their respective jurisdictions. Judicial appointments are supposed to be made under a merit-based system, but the top-down appointment system lends itself to political tinkering and undue interference by higher-level judges in lower-level cases in which they have no jurisdiction. The Attorney General, who heads the Public Ministry, appoints the superior and circuit-level prosecutors.
In December 1998, the Legislative Assembly passed a law that gave the Supreme Court the power to appoint the Director and Sub-Director of the PTJ for 7-year terms and requires Supreme Court approval for their removal. Previously, the Attorney General appointed these two officials. The law also gave these two officials the power to name other PTJ officials without consulting the Attorney General. Opposition and media critics charged that this law increased the influence of the Supreme Court over the criminal investigators, removed the generally positive oversight of the Attorney General, and made cooperation between prosecutors and the police much more difficult. Tensions between the Attorney General and the PTJ arose in July when PTJ officers and the Attorney General, accompanied by his PNP bodyguards, exchanged shouts with guns drawn before both sides finally backed down. The incident was followed by charges by both sides of abuse of authority.
At the local level, mayors appoint administrative judges who exercise jurisdiction over minor civil and criminal cases in which they may impose fines or sentences of up to 1 year. This system has serious shortcomings: Defendants lack adequate procedural safeguards; judges need not be (and normally are not) attorneys; and some engage in corrupt practices. In reality, appeal procedures are nonexistent. More affluent defendants tend to pay fines while poorer defendants go to jail, one of the chief factors leading to prison overcrowding.
In May 1998, the Inter-American Development Bank (IDB) loaned the Government $18.9 million to reform the judicial system. The loan is to be used at national and local levels to provide better conditions for the court system, including better information management, training for personnel, revision of judicial procedures, and construction of administrative offices for judges and prosecutors in two locations, San Miguelito and David. Program implementation began during the year, with funding allocated to temporary courts to clear backlogs, for training additional judges, and for working with the judicial college to create a curriculum that encourages the merit-based hiring and promotion of judges. In September the IDB began work on a database linking prison population data with prosecutors and the courts, which is intended to facilitate the systematic release of prisoners who have served time beyond their potential maximum sentence but still are awaiting trial.
The two commissions established during the Endara administration and resurrected by the Perez Balladares administration to evaluate the justice system never presented publicly any results of their work.
The Constitution provides that persons charged with crimes have the right to counsel, to be presumed innocent until proven guilty, to refrain from incriminating themselves or close relatives, and to be tried only once for a given offense. If not under pretrial detention, the accused may be present with counsel during the investigative phase of the proceeding. Judges can order the presence of pretrial detainees for the rendering or amplification of statements, or for confronting witnesses. Trials are conducted on the basis of evidence presented by the public prosecutor, and the accused person is not necessarily present. The Constitution and the Criminal Procedure Code provide for trial by jury at the defendant's election, but only in criminal cases where at least one of the charges is murder.
The Constitution obliges the Government to provide public defenders for the indigent. However, many public defenders are not appointed until after the investigative phase of the case, a serious disadvantage for the defendant since it is during this stage that the prosecutor produces and evaluates the bulk of the evidence and decides whether to recommend trial or the dismissal of charges. Public defenders' caseloads remained staggering, averaging 540 cases per attorney in 1998. Only 3 new public defenders have been hired since 1992, making a total of 38 nationwide, with a similar number of assistants. This heavy workload undermined the quality of representation, with many prisoners meeting their public defender for the first time on the day of trial.
The Legislative Assembly passed legislation in 1998, popularly known as the " Faundes Law, " which requires judges and other public officials to retire at age 75. The law was designed to remove former Supreme Court magistrate Jose Manuel Faundes after attempts to impeach him failed to muster the necessary two-thirds majority vote in the Assembly. The law required the 82-year-old Faundes to retire, making the impeachment proceedings moot. The National Bar Association challenged the constitutionality of the law's retroactive nature. However, in July the Supreme Court ruled that the law did not violate the Constitution.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution provides for the inviolability of the home, private papers, and telephonic communications, and the Government generally respected these rights; however, there were complaints that in some cases police failed to follow legal requirements and conducted unauthorized searches of private residences. The authorities may not enter private residences except with the owner's permission, or by written order from the appropriate authority for specific purposes. These may include entry to assist the victims of crime or disaster, or to conduct lawful health and safety inspections. The authorities may not examine private papers and correspondence, except as properly authorized by competent legal authority and in the presence of the owner, a family member, or two neighbors.
Although the Constitution prohibits all wiretapping, the Government maintains that wiretapping with judicial approval is legal, and that the Attorney General may authorize a wiretap when confronted with probable cause in a serious crime. Under the guidelines established by antinarcotics legislation passed in July 1994, the Public Ministry may engage in undercover operations, including " videotaping and recording of conversations and telephonic communications. " In March a dispute arose when critics charged Attorney General Sossa with illegally wiretapping a judge. The Attorney General countered that he was operating within his authority to pursue a criminal investigation. Although then-Chief Justice Arturo Hoyos publicly criticized Sossa, the Supreme Court has not issued a definitive ruling on whether wiretapping is constitutional and, if so, under what circumstances.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and of the press, and the Government generally respects these rights in practice.
There is an active and often adversarial press and a broad range of print and electronic media outlets, including foreign newspapers, radio and television broadcasts, and cable stations. Six national daily newspapers, 3 commercial television stations, 2 educational television stations, and approximately 100 radio stations provide a broad choice of informational sources; all are privately or institutionally owned. While many media outlets took identifiable editorial positions, the media carried a wide variety of political commentaries and other perspectives, both local and foreign. There is a noticeable concentration of control of television outlets in the hands of close relatives and associates of former President Perez Balladares.
In June the National Assembly passed a bill that made newspaper companies ineligible for radio and television concessions and vice versa. The bill was proposed after the La Prensa Corporation, the publisher of a newspaper of the same name, sought to acquire the Channel 8 frequency.
Panamanian and foreign journalists worked and traveled freely throughout the country. The Perez Balladares Government never fulfilled its informal promise to seek revocation of the 1978 law that requires directors and deputy directors of media outlets to be citizens. In June then-Minister of Government and Justice Mariela Sagel recommended the revival of the Noriega-era system of issuing journalist licenses to Panamanian citizens graduating from journalism schools. Working journalists and human rights groups criticized this suggestion, and it was dropped.
Under " gag laws " dating from the military dictatorship, the Government had legal authority to prosecute media owners and reporters for criminal libel and calumny. A special executive branch authority had discretionary powers to administer the libel laws, which provide for fines and up to 2 years in prison. Under the statute, opinions, comments, or criticism of government officials acting in their official capacity are exempted specifically from libel prosecution, but a section of the law allows for the immediate discipline of journalists who show " disrespect " for the office of certain government officials. In December President Moscoso ratified the National Assembly's decision to eliminate these gag laws. Although this action improved the legal status of the media, legal actions against many journalists remained pending at year's end.
Human Rights Ombudsman Italo Antinori criticized the Perez Balladares administration's use of libel laws to intimidate journalists who reported on government corruption. Approximately 85 journalists who had been charged with libel met with Antinori to describe the case they have submitted to the Inter-American Court of Human Rights. Other international free press and human rights bodies had criticized the continued use of the laws against journalists.
In 1998 then-PNP Director Jose Luis Sosa used the libel laws to bring charges against National University law professor (and now an adviser to the Moscoso administration) Miguel Bernal for statements about the decapitations of the prisoners on Coiba Island (see Section 1.c.). Bernal had said on television that " the only ones who have decapitated others in this country are the National Police and the National Guard of the now defunct Defense Forces. " Bernal clarified that he had not said that the PNP had carried out the decapitations at Coiba, rather that the PNP, through acts of omission, allowed the decapitations. Bernal, an advocate of prison reform, repeated his charges in follow-up interviews and opinion pieces. He claimed that the PNP Director's charges amounted to a limit on freedom of expression. There was a preliminary hearing on Sosa's charges against Bernal in November, but no trial date had been set by year's end.
In another 1998 case, a prosecutor acting on behalf of Attorney General Jose Antonio Sossa charged La Prensa journalists Gustavo Gorriti and Rolando Rodriguez with a " crime against the honor of the authorities " for defaming a government official and allegedly falsifying evidence. Gorriti and Rodriguez refused to reveal sources for a story they wrote in 1996, which alleged that the Attorney General accepted checks of dubious origin in his unsuccessful 1994 campaign for a seat in the Legislative Assembly. Subsequent press reports suggested that the story was erroneous. The charges remained pending at year's end, and the Attorney General sued the two journalists for $1 million. In December 1998, police officers attempted to escort journalist Herasto Reyes from his office at the La Prensa newspaper to a court appearance. Newsroom staffers prevented the police from taking Reyes into custody. Then-President Perez Balladares had filed libel charges against Reyes, after he published a story in August 1998 accusing the Perez Balladares administration of trying to cover up a government embezzlement scandal. The case was still pending at year's end.
The Electoral Tribunal must approve election polling results before publication. In April the Tribunal fined the newspaper Panama America $10,000 for failing to follow the approval procedure before printing Gallup poll results.
The press laws provide for the establishment of a censorship board. The board monitors radio transmissions and has the authority to fine stations that violate norms regarding vulgar and profane language.
The law provides for academic freedom, which generally was respected in both public and private universities. However, the Faundes Law forced the retirement of dozens of professors at the public universities.
After protesters turned to violence in December 1998 (see Section 2.b.), then-Governor of Panama Province Eduardo Herrera ordered the police to enter and temporarily close the University of Panama. In August then-President Perez Balladares issued a pardon for Herrera, who was accused of abuse of authority for violating the university's autonomy. President Moscoso rescinded that pardon in September.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for the right of peaceful assembly, and the Government generally respects this right in practice. No authorization is needed for outdoor assembly, although prior notification for administrative purposes is required. In 1998 the Legislative Assembly considered, but did not enact, legislation that would have tightened restrictions on public demonstrations.
Police response to public protests was mixed. Throughout much of the year, police showed restraint and professionalism while monitoring large protests by students, political activists, prisoners, and workers. In February residents of the San Joaquin area protested the power company's cutting off electricity to 400 families that had fallen behind on payments. The move touched off 2 days of protests, during which demonstrators barred a section of the highway leading to the airport. In response, the police used tear gas and bird shot and arrested about 30 persons. Paramedics attended residents affected by the gas and injured by the bird shot. Eventually the residents and the electric company reached an agreement. On August 31, the police used similar methods to disperse bus drivers who blocked traffic in Panama City, as well as at smaller protests throughout the year.
In December 1998, a mix of student and worker groups protesting the privatization of the state-owned water utility, the changing of the date to celebrate a national holiday, and fee changes at the university engaged in a week of protests and confrontations. The demonstrators used Molotov cocktails and hurled stones at police. The police response to the at-times violent protests included the use of bird shot, tear gas, and rubber bullets. There were reportedly dozens of beatings and instances of abusive treatment, particularly against those taken into custody (also see Section 2.a.).
The Constitution provides for the right of association, and the Government generally respects this right in practice. Citizens have the right to form associations and professional or civic groups. They may form and organize political parties freely, although new parties must meet strict membership and organizational standards in order to gain official recognition and participate in national campaigns.
c. Freedom of Religion
The Constitution, although recognizing Catholicism as " the religion of the majority of Panamanians, " provides for free exercise of all religious beliefs, provided that " Christian morality and public order " are respected. The Government imposes no limitations in practice, and there is a broad diversity of religions. The Constitution prohibits clerics from holding public office, except as related to social assistance, education, or scientific research.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government respects them in practice. The Government enforced exit permit requirements for foreigners who overstayed their initial visas. A 9:00 p.m. curfew for minors under 18 years of age in the Panama City and San Miguelito districts of Panama province, imposed in 1992, remained in effect. Police enforcement of the curfew was uneven, with strictest compliance focused on high-crime areas.
During the year, between 300 and 500 Colombians fled the violence in Colombia and entered the country by crossing the border. At year's end the refugees were still living in the Darien town of Jaque and refused to return to Colombia until the Colombian Government could guarantee their safety in Jurado municipality. The Government, along with local NGO's and the United Nations, provided the refugees with protection and humanitarian assistance. At year's end, the Ministry of Foreign Affairs had not taken an official stance on policy towards the Colombians.
The law has provisions for granting refugee status in accordance with the 1951 U. N. Convention Relating to the Status of Refugees and its 1967 Protocol. The Government generally cooperates with the office of the United Nations High Commissioner for Refugees and other humanitarian organizations in assisting refugees. The issue of first asylum did not arise during the year.
There were no reports of the forced return of persons to a country where they feared persecution. However, throughout the year, there were unconfirmed reports that the police along the border, on an ad hoc basis, required Colombians to return to Colombia.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens have this right and exercised it in the May general elections. The Constitution provides for a representative democracy with direct popular election by secret ballot of the President, two vice presidents, legislators, and local representatives every 5 years. While the Constitution provides for independent legislative and judicial branches, in practice the executive dominates. The independent Electoral Tribunal arranges and supervises elections. The Government respected the rights of its citizens to join any political party, propagate their views, and vote for candidates of their choice.
In the May 2 general elections, Arnulfista candidate Mireya Moscoso defeated Democratic Revolutionary Party (PRD) candidate Martin Torrijos and Christian Democratic Party candidate Alberto Vallarino, winning 44.8 percent of the popular vote. The PRD won 35 seats in the National Assembly; the Arnulfistas, 18; Solidarity, 4; the National Liberal Party, 2; MOLIRENA, 3; Democratic Change, 2; MORENA, 1; the Christian Democratic Party, 4; and the Civic Renewal Party, 2.
Domestic and international observers characterized the elections as generally free and fair; however, several local contests were marred by reports of vote buying and in extreme cases, voter intimidation. Legislative District 9-3, in Veraguas province, was criticized widely for such electoral interference.
There are no legal barriers to participation by women, members of minorities, or persons of indigenous descent, but they generally are underrepresented in government and politics. At year's end, women held 7 of 71 Legislative Assembly seats, and a woman served as its vice president. Women also held 3 of 13 cabinet positions. In May voters elected the first female President, and an indigenous person was elected President of the National Assembly. There are two female members of the Supreme Court, one of whom was elected Chief Justice in October.
The Government provides semiautonomous status to several indigenous groups in their homelands, including the Kuna, Ngobe-Bugle, Madugandi, and Embera-Wounaan reserves. The Kuna of San Blas have two representatives in the Legislative Assembly, proportionate to their share of the population. Locally, tribal chiefs govern each reserve; they meet in a general congress at regular intervals. Neither the Madugandi nor the Embera-Wounaan reserve has its own dedicated legislators, but each has a separate governor. The Government continued the process of demarcating electoral districts within a new reserve created for the Ngobe-Bugle. May elections allowed many Ngobe-Bugle to choose their own local representatives in these newly created electoral districts.
The law prohibits discrimination against any social, religious, or cultural group; however, naturalized citizens may not hold certain categories of elective office.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Human rights organizations, including both religious and secular groups, operated without government restrictions. These organizations carried out a full range of activities, including investigations and dissemination of their findings. Organizations generally had access to government officials while conducting investigations. Some organizations were particularly active in encouraging voter turnout for the May general elections and in assisting election observers.
The legislature created the office of Human Rights Ombudsman in December 1996, but initially did not provide funding, and the office did not open until January 1998, when it began to handle cases. In February 1998, the Supreme Court stripped the Ombudsman of his authority to investigate human rights violations involving the administration of justice.
Human Rights Ombudsman Italo Antinori, the first to fill the position, sparred with the Perez Balladares Government until it left office. The Ombudsman received 15 to 20 complaints daily. With the authority only to investigate and publicize, Antinori handled several high-profile cases, although he failed to develop close links with other domestic human rights organizations. This highly personalized approach may have limited the overall institutional development of the ombudsman's office. Nonetheless, the office handled some 4,000 complaints since its founding in 1998, and Antinori's activities were well-publicized in the press. The Ombudsman also conducted a high profile " get out the vote " campaign prior to the general elections, consisting of public information messages on radio and television.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution prohibits either special privileges or discrimination on the basis of race, birth status, social class, sex, religion, or political views. Nevertheless, societal prejudices persist, based primarily on social status. Cases of discrimination are difficult to prove, and legal remedies for victims are complicated, time-consuming, and costly.
Women
Domestic violence against women continued to be a serious problem. The Center for the Development of the Woman estimated that victims report as few as 20 percent of sexual assaults to judicial or law enforcement authorities. However, statistics indicate a greater willingness by women to report incidents of abuse. The PTJ registered 959 cases of domestic violence through August, compared with 582 through August 1998 and only 35 for all of 1997. The PTJ also registered 514 cases of rape and 135 cases of attempted rape. The Foundation for the Promotion of the Woman, among other women's advocacy groups and government agencies, operated programs to assist victims of abuse, and to educate women on their legal rights. The 1995 Family Code criminalized family violence, including psychological, physical, or sexual abuse, although convictions are rare unless a death occurs. A widely acknowledged characteristic of rape is that it frequently occurs in the home.
In addition to domestic violence, sexual harassment is a threat to the equal status of women in society. According to a report by the Latin American Committee for the Defense of Women, in 1995, the latest year statistics were available, about 70 percent of female government employees reported having endured sexual harassment in the workplace, 42 percent by their immediate supervisors and 18 percent by more senior supervisors. Since a bill to criminalize sexual harassment failed to pass the legislature in 1995, no further legislation has been introduced.
The 1995 Family Code recognizes joint or common property in marriages. However, insufficient resources hampered government efforts to enforce the code's provisions effectively.
The Constitution mandates equal pay for men and women in equivalent jobs, but wages paid to women are on average 20 percent lower and increase at a slower rate. Although statistics are lacking, there are credible reports of irregular hiring practices based upon age and " attractiveness. " In December 1998, the Legislative Assembly passed a law that reiterated protections laid out in the Constitution and prohibited all discrimination on the basis of sex.
A number of private women's rights groups, including groups for indigenous women, concentrate on disseminating information about women's rights, countering domestic abuse, enhancing employment and other skills, and pressing for legal reforms. The Foundation for the Promotion of the Woman stated that it provided legal assistance, counseling, and skills training to over 750 women during the year.
In January 1998, the Government created the Ministry of Women, Youth, Family, and Childhood, appointing Leonor Calderon as the Minister. Although the new Ministry is largely a consolidation of departments previously operating in other government ministries, its creation raised the profile of social issues.
Children
Minors (under 18 years of age) represent 48 percent of the population. The PTJ registered 171 cases of child abuse during the year. Education of children is compulsory through the equivalent of ninth grade. However, in remote areas children do not always attend school due to a lack of transportation, traditional attitudes, and insufficient government resources to enforce the requirement. The Government furnishes basic health care for children through local clinics run by the Ministry of Health. A central children's hospital in Panama City operates on government funds as well as private donations.
The Superior Tribunal for Minors and Superior Tribunal for Families are judicial authorities charged with overseeing the protection and care of minors. The Minister of Women, Youth, Family, and Childhood acts much like an ombudsman, and the office proposes and reviews laws and monitors government performance. Many children continue to suffer from malnutrition, neglect, and inadequate medical care. Malnourishment is lowest in urban areas and highest among rural indigenous groups. Child labor is a problem (see Section 6.d.).
Juvenile courts report a high incidence of juvenile delinquency in major urban areas. The authorities report an increase in crimes attributed to juvenile gangs, including drug trafficking, armed robberies, kidnapings, car thefts, and murders. In March the Minister of Women, Youth, Family, and Childhood charged the police with violating the human rights of minors by arresting and detaining them for minor infractions following periodic neighborhood sweeps.
People with Disabilities
The Workers with Disabilities Office of the Department of Labor and Social Welfare is responsible for government policy and support for citizens with disabilities and for placing qualified disabled workers with employers. The office was in charge of implementing a June 1993 executive order that provided employers with tax incentives for hiring the disabled but has had only minimal success. Although some public buildings and retail stores have access ramps for the disabled, no national law compels the installation of facilitated access features in public or private buildings. In July the Panama City government began enforcing municipal building codes passed in 1998 that require such access to be included in new construction.
Indigenous People
Indigenous people number approximately 194,000 (8 percent of the population) and have the same political and legal rights as other citizens. The Constitution protects the ethnic identity and native languages of indigenous people, requiring the Government to provide bilingual literacy programs in indigenous communities. Indigenous people have legal rights and take part in decisions affecting their lands, cultures, traditions, and the allocation of natural resources. The Family Code recognizes traditional indigenous cultural marriage rites as the equivalent of a civil ceremony. The Ministry of Government and Justice maintains a Directorate of Indigenous Policy. The Legislative Assembly also has an Indigenous Affairs Commission to address charges that the Government has neglected indigenous needs. Despite legal protection and formal equality, indigenous people generally endure relatively higher levels of poverty, disease, malnutrition, and illiteracy than the rest of the population. Discrimination against indigenous people, although generally not overt, is widespread.
Since rural indigenous populations infrequently master Spanish well enough to use appropriate legal terminology, they often have difficulty understanding their rights under the law and defending themselves in court. The indigenous population has grown increasingly vocal in requesting that the Government grant it more autonomy by creating more indigenous reserves or expanding existing ones. The Government continued the process of demarcating electoral districts within a new reserve created for the Ngobe-Bugle. May elections allowed many Ngobe-Bugle to choose their own local representatives in these newly created electoral districts. National/Racial/Ethnic Minorities
There is some evidence that a constitutional provision reserving retail trade to Panamanian citizens originally was directed at Chinese immigrants, but government officials have stated that it serves as a barrier to prevent foreign retail chains from operating in the country. The measure is not enforced in practice. Chinese, Middle Eastern, and Indian legal residents, as well as citizens of Chinese and Indian descent, operate much of the retail trade, particularly in urban areas. Leaders of the over 100,000-member East Asian and South Asian communities credibly claimed that Panamanian elites treat Panamanian-resident Chinese and Indians as well as citizens of Asian origin as second-class citizens.
Although such practices are illegal, clubs and restaurants often discriminate against blacks by denying them admission. After student protests at several nightclubs, Ombudsman Italo Antinori investigated and found racial discrimination at four nightclubs. Racial discrimination also is found in the workplace, particularly in jobs involving dealing with the public, where light-skinned persons are disproportionately represented.
Section 6 Worker Rights
a. The Right of Association
Private sector workers have the right to form and join unions of their choice, subject to registration by the Government. A labor code reform package signed in 1995 significantly increased workers' ability to establish unions. The reforms streamline the accreditation and registration process for unions, reduce the minimum size from 50 to 40 workers, and cut the Government's required response time on applications from 2 months to 15 days. In the event the Government does not respond within this time frame, the union automatically gains recognition and is accorded all rights and privileges under the law.
According to Ministry of Labor statistics, approximately 10 percent of the total employed labor force are organized. There are over 250 active unions, grouped under 7 confederations and 48 federations representing approximately 80,000 members in the private sector. Neither the Government nor the political parties control or financially support unions.
The 1994 Civil Service Law permits most government workers to form public employee associations and federations and establishes their right to represent members in collective bargaining with their respective agencies. It also provides civil servants (but not other government workers) with the right to strike, except for those in areas vital to public welfare and security, such as the police and health workers and those employed by the U.S. military forces and the Panama Canal Commission.
The Labor Code reforms addressed some longstanding concerns of the International Labor Organization (ILO). The code no longer makes labor leaders automatically ineligible to keep their union positions if they are fired from their jobs.
As is general practice in the country's public offices after elections, newly elected politicians and appointees began dismissing public workers immediately upon taking office to free up positions for loyal followers. The authorities discharged up to several thousand government employees by year's end. Public workers do not benefit from union protection, Labor Code standards, or minimum wage provisions. The Civil Service Law has proven insufficient to protect public workers. Under the law, public workers may be promoted into the civil service and thus enjoy some right to bargain collectively, strike, and evade summary dismissal. The Perez Balladares administration promoted some 10,000 public workers into the civil service during its final weeks in office, but the incoming Moscoso administration responded to this last minute influx by suspending the promotions of the new civil servants " for review. " Only a small percentage of the 150,000 public workers truly enjoy job security by virtue of their status as civil service employees.
The ILO's Committee of Experts has observed for some years that the prohibition of public servants' associations is inconsistent with obligations under ILO Convention 87 (The Right to Organize and Freedom of Association). The ILO made a second request that the Government amend labor laws with regard to public workers, but no changes had been made at year's end.
Union organizations at every level may and do affiliate with international bodies.
b. The Right to Organize and Bargain Collectively
The Labor Code provides most workers with the right to organize and bargain collectively, and unions exercise it widely. The law protects union workers from antiunion discrimination and requires employers to reinstate workers fired for union activities. The Ministry of Labor has mechanisms to resolve complaints against antiunion employers. The Civil Service Law allows most public employees to organize and bargain collectively and grants some of them a limited right to strike. While the right to strike applies to some 10,000 civil servants, it does not apply to the approximately 140,000 other government workers. The Labor Code establishes a conciliation board in the Ministry of Labor to resolve labor complaints and provides a procedure for arbitration. A March ruling by the Supreme Court declared unconstitutional Article 452 of the Labor Code, which obligated private sector strikers to submit to binding arbitration after a given period.
Employers commonly hire temporary workers to circumvent onerous labor code requirements for permanent workers; such temporary workers receive neither pensions nor other benefits. The practice of blank contracts is, according to union sources, becoming more widespread. Labor law addresses this problem by requiring all companies to submit copies of all labor contracts for permanent workers to the Labor Ministry and by requiring the Labor Ministry to conduct periodic inspections of companies' work forces and review all contracts to ensure that they are in order. The code also authorizes the Labor Ministry to levy fines against companies not in compliance with the law.
In January and February 1996, the Government issued cabinet decrees governing labor relations in export processing zones (EPZ's) as a means of attracting investment into areas vacated under the terms of the Panama Canal Treaty. The original decree limited a broad range of labor rights, including the right to strike and to bargain collectively. The second decree modified the first and restored most worker rights in EPZ's. However, it provides for collective bargaining with " representatives of employees " but makes no specific mention of trade unions; it requires mandatory arbitration of disputes; and it allows for the participation of an unrepresentative worker delegate in the tripartite (government, labor, and industry) arbitration commission.
A 1997 decree further modified the EPZ labor regulations, stipulating that a strike may be considered legal only after 36 workdays of conciliation are exhausted. If this requirement is not met, striking workers can be fined or fired. A 1998 ILO ruling noted that the 1997 regulations do not mention arbitration or specify procedures to resolve disputes in the courts. The ILO ruling stated that the Government should amend the EPZ labor regulations to conform with international norms, but the Government did not respond. Minimum wage provisions do not apply in the EPZ's.
c. Prohibition of Forced or Compulsory Labor
The Labor Code prohibits forced or compulsory labor, including that performed by children, and neither practice was reported.
d. Status of Child Labor Practices and Minimum Age for Employment
The Labor Code prohibits the employment of children under 14 years of age as well as of those under age 15 if the child has not completed primary school; children under age 16 cannot work overtime; those under age 18 cannot perform night work. Children between the ages of 12 and 15 may perform farm or domestic labor as long as the work is light and does not interfere with their schooling. The Ministry of Labor enforces these provisions in response to complaints and may order the termination of unauthorized employment. However, the Government acknowledges that it is unable to enforce other child labor provisions in rural areas, due to insufficient staff. The law prohibits forced or bonded labor by children, and the Government enforces this provision (see Section 6.c.).
The Permanent Committee Against Child Labor asserts that 11 percent of all children between the ages of 10 and 17 are working or actively are seeking employment. Most of these children, both rural and urban, are believed to be working at their parent's insistence. Some of these children may be providing a substantial part of their family income.
Child labor violations occur most frequently in rural areas during the harvest of sugar cane, coffee, and tomatoes. Farm owners usually pay according to the amount harvested, leading many persons to bring their young children to the fields to help with the harvest. In many small rural communities, the entire able-bodied population participates in a harvest, and parents are not willing to leave their children behind unattended. Many children also are involved extensively in subsistence agriculture.
Urban supermarkets employ an estimated 1,500 children, who work for tips bagging groceries. Some supermarket managers claim that these children are not employed by their firm, but these " baggers " often have schedules, uniforms, and must comply with company codes of conduct. In addition, many children work as domestic workers or sell items and wash cars in the streets.
The Government has not developed an effective strategy to address the problem of children working as street vendors and car washers, and has been unwilling to challenge the larger supermarket chains where large numbers of children work.
e. Acceptable Conditions of Work
The Labor Code establishes minimum wage rates for specific regions and for most categories of labor. The minimum wage ranges from $0.77 per hour to $1.33 per hour, depending on the sector. This wage is not sufficient to provide a decent standard of living for a worker and family. Most workers formally employed in urban areas earn the minimum wage or above. An estimated 39 percent of the population who work in the large informal sector earn far below the minimum wage. The Government does not enforce labor laws in most rural areas, where laborers earn $5 or $6 per day, with no benefits. In December a tripartite commission comprising representatives from government, the private sector, and labor convened to negotiate an increase in the minimum wage, which would go into effect in July 2000. If the commission fails to reach consensus, the President has the power to raise the minimum wage by decree.
Unions repeatedly have alleged that contractors operating in the Panama Canal area pay less than the required minimum wage. The Ministry of Labor does not enforce the minimum wage law adequately, due to insufficient personnel and financial resources.
The Labor Code establishes a standard workweek of 48 hours and provides for at least one 24-hour rest period weekly.
The Ministry of Labor is responsible for enforcing health and safety standards and generally does so. The standards are fairly broad and generally emphasize safety over long-term health hazards, according to organized labor sources. An occupational health section in the social security system is responsible for conducting periodic inspections of especially hazardous employment sites, such as those in the construction industry, as well as inspecting health and safety standards in response to union or worker requests. Worker complaints of health problems continued in the banana industry as well as in the cement and milling industries.
The law protects from dismissal workers who file requests for health and safety inspections. Workers also have the right to remove themselves from situations that present an immediate health or safety hazard without jeopardizing their employment. They generally are not allowed to do so if the threat is not immediate, but may request a health and safety inspection to determine the extent and nature of the hazard.
f. Trafficking in Persons
The law prohibits alien smuggling, but does not prohibit specifically trafficking in persons. However, the authorities held several persons in custody for trafficking; they awaited trial at year's end.
The country is a transit point for aliens, primarily from other countries in South America (particularly Colombia and Ecuador) seeking to reach the United States, some of whom are trafficked into indentured servitude. An estimated 30,000 aliens transit the country annually, generally posing as tourists. Their travel is facilitated by a network of alien smugglers, travel agents, hotels, and safe-houses. The majority of aliens transiting through Panama originate in South America but a significant and increasing number come from India and China. Panamanians themselves represent only a small percentage of illegal aliens transiting through Central America.
Anecdotal evidence indicates that illegal aliens transiting through Panama overland are subject to frequent hardship. They commonly are deprived of adequate food and shelter. Chinese aliens are particularly vulnerable to poor treatment. South Americans pay approximately $5,000 in their country of origin for the entire trip. For the Chinese, $5,000 constitutes only the down payment on a total fee that could reach $30,000. Once in the United States, many Chinese are coerced into working off their debt as indentured servants in the Chinese community.
Corruption, legal technicalities, and lack of resources and staff contribute to the Government's inability to combat the problem fully.
[end of document]
Chapter Eight
Justice:
From Plato to Rawls
I
f the concept of human rights is of relatively recent origin, just the opposite could be said about the concept of justice: it is a moral concept with a rich and long history, stretching back before the time of Plato and Aristotle and running as a constant threat from ancient thought to the twenty-first century. No one in the twentieth century has stated the importance of justice more eloquently than John Rawls in the famous opening paragraphs of his 1971 classic, A Theory of Justice:
Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests. The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising.
These propositions seem to express our intuitive conviction of the primacy of justice.
Justice, Rawls is telling us, is fundamental to social institutions and the laws that govern institutions and people.
But what, exactly, is justice? This is a long-debated question by philosophers and jurists and political leaders, and our consideration of justice will begin with a brief consideration of one of the earliest philosophical texts about justice: Plato’s Republic. After that we will look at one of the most recent theories of justice, but one that is extraordinarily powerful: John Rawls’ account in A Theory of Justice. (1972) Then we will turn to a consideration of types of justice, especially distributive justice and conclude with a discussion of just war theory.
Plato’s Account of Justice
Plato’s Republic is one of the classics of Western philosophy, and it constitutes a long meditation on the nature of justice. Indeed, after Plato’s death The Republic was often referred to by its secondary title, “On Justice.” Over the course of its ten books, it describes the ideal state, and that itself is the embodiment of justice. For Plato, justice is an unavoidably social and political concept, so a meditation on the nature of justice naturally becomes a meditation on the ideal society and state.
The Athenian Conception of Justice: Justice as Honesty in Word and Deed.
In Book One of The Republic, we see Plato survey several different and conflicting conceptions of justice. It is helpful to look at these, because they provide a set of models for everyday conceptions of justice in our own times. The conversation begins with Cephalus, an elder statesman in Athens and widely recognized as a just man, talking with Socrates, who has asked him what the greatest benefit of his wealth has been. Cephalus replies that, as he gets older, he thinks more about what will happen after death and gains hope from the knowledge that he has lived in justice and piety. This prompts Socrates to ask Cephalus what justice is, Cephalus replies that justice comes down to being truthful and paying your debts.
As will occur throughout The Republic, Socrates poses objections to the definition of justice. Imagine, Socrates says, that someone has stored his weapons with you. Later, the friend comes back “not in his right mind” and asks you to return the weapons to him. No one would fault us, Socrates says, from refusing to give the weapons back. But if this is so, “then speaking the truth and paying your debts is not a correct definition of justice.”
The Conventional View of Justice: Helping Friends and Harming Enemies
Cephalus gives up on defining justice, and turns the conversation over to Polemarchus, his son. Polemarchus states the conventional view of justice, namely, that justice consists in helping your friends and harming your enemies. In dealing with your enemies, your should return evil for evil, according to Polemarchus. This definition, Socrates suggests, might be useful in war, but it offers us little guidance in times of peace. Socrates then proceeds to twist Polemarchus’ ideas around to the point that Polemarchus seems to be saying that the just person is best at being unjust
The Cynical View of Justice: Might Makes Right
The next definition of justice considered by Socrates is advanced by Thrasymachus, who maintains that “justice is nothing else than the interest of the stronger.” This is a definition which continued to have adherents throughout the twentieth century, most notably in the school of Realpolitik. The only thing that makes any difference, this view of justice asserts, is power, and justice is whatever the powerful declare it to be.
There is obviously a certain amount of realism in this view: justice is rarely achieved without the support of the power structure, but it is only the cynic who agrees with Thrasymachus that justice is only the interest of the stronger. If that were the case, there never would be justification for criticizing the state for acting unjustly.
Plato’s View of Justice
It would be simple if Socrates then went on to tell us what justice really is, but this is not the way Socrates (and Plato) taught. Rather, we have to look at the entirety of The Republic to see what Plato really meant by justice, and even that is the source of much disagreement among scholars. Here I will offer simply one view of what Plato may have meant by justice.
Justice in The Republic is harmony, both internal and external. Internal harmony is a proper balance in the soul, and external harmony manifests itself in the state. The virtuous individual possesses inner harmony, a balance among the faculties of the soul. In order to live a good life, the virtuous individual must live in a just society. Thus inner and outer justice need one another: without just individuals, a just society is impossible; without a just society, the life of the just individual may not be a happy one.
Distributive Justice: John Rawls
John Rawls has had a profound impact on contemporary moral and political philosophy. His most important work, A Theory of Justice, was first published in 1971, but parts of it had already been in circulation in preliminary drafts and in journal articles for several years prior to that. After its publication, it established the conceptual landscape within which discussions of justice were to occur, at least in the English-speaking literature. You could agree with Rawls or you could disagree with him, but you couldn’t ignore him.
Rawls’ Moral Concerns
There is almost no trace of Rawls’ personal life and concerns in his published writings. Aside for thanking individuals for their comments and support, he says nothing personal. But in a helpful review essay devoted to several recent books by Rawls, the philosopher Thomas Nagel gives us some insight into the motivations underlying Rawls’ work.
According to Nagel, Rawls was always deeply concerned about the “injustices associated with race, class, religion, and war.” Slavery was the model of injustice for Rawls, and a good moral theory would not only condemn slavery, but would do so for the right reasons. He was an infantryman in World War II and was familiar with the horrors of war, horrors perpetrated by friends as well as foes. And he was deeply aware of how lucky he had been in many way, not the least of which was not to have fallen in combat. And he was acutely aware of the extent to which that luck was not deserved—it was simply luck. Throughout his work, Rawls remains highly sensitive to this issue of luck, and his goal is to create a society in which luck plays a minimal role in the rules that govern that society. Out of this comes Rawls’ deep egalitarianism, his desire to see everyone treated as fairly as possible. The Theory of Justice provides an account of what is involved in such fair treatment.
The Original Position: A Thought Experiment
Imagine you are put in the following situation. You are one of a group of people who have been assigned the task of devising the basic rules that will govern society and the interactions of individuals in society. Your job is to work with the other people in the group to devise this set of principles. Furthermore, you are representing someone else in doing this, as are all the other delegates. You are to act rationally, and all of you are to act in the best interests of the people you represent. There is just one catch: you are behind what Rawls calls the “veil of ignorance.”
The Social Contract
Up until Rawls introduces the notion of the veil of ignorance, his account forms a standard hypothetical contractarian approach, that is, he sees the foundation of morality in some kind of social contract, usually implicit rather than an actual contract agreed upon at some historical time. Perhaps the most well-known representative of this approach to social theory was Jean-Jacques Rousseau, whose book The Social Contract (1762) continues to be studied today.
The Veil of Ignorance
Rawls’ distinctive addition to the concept of the social contract was to ask the participants to imagine that they do not know any particulars about the person each of them was to represent. Thus, as a representative in the original position, I would be committed to acting rationally on behalf of the person I represent and to seeking to devised the best possible rules for that position. But since I am behind the veil of ignorance, I do not know anything in particular about the person I am representing. Is the person male or female, young or old, rich or poor. In what areas is the person talented: the arts, science, sports, human relations? In what country does the person live?
Imagining ourselves behind the veil of ignorance is a powerful psychological and conceptual tool for helping us to overcome the prejudices of everyday life. Think about gender. If we imagine ourselves to be acting in a rationally self-interested way, but not knowing whether we were representing a male or a female, we might well find ourselves revising some of the basic sex-based roles in our own society. Indeed, as we shall see in Chapter 10 when we discuss gender and moral theory, the political philosopher Susan Moller Okin uses precisely this line of reasoning to suggest that the benefits and burdens of family life fall differently and unfairly on the shoulders of men and women. Imagine being behind the veil of ignorance and asking what would the basic principles regulating family life should be. It is highly likely that we, not knowing whether we represented a male or a female, would argue in favor of a much more equitable division of labor than presently exists in our society.
Imagine that you are behind the veil of ignorance and do not know what country your principal lives in. How would this affect your views of international economic justice? Remember that you do not know whether you are representing someone from an affluent and comfortable country or someone from a famine-ridden, debt-plagued country. The challenge would be to devise principles of international economic justice that would be most fairest to all, no matter what their economic situation. Our views on world poverty might change significantly, no knowing whether we would have to explain our decision to a poor person or a wealthy one, to a resident of an impoverished country or an economic giant.
It is easy to see the Kantian dimension present in this notion of the veil of ignorance. Kant asks us to set aside our moral individuality and ask what any rational agent ought to do in a given situation. (This is the force of Kant’s imperative that we ought to be able to will the maxim of our actions for all rational beings.) By denying us knowledge of the specifics of our situation, and by asking us to represent in a rational and prudential way the best interests of that person concealed behind the veil of ignorance, Rawls forces us into a kind of neutrality that has a clearly Kantian flavor. Although we are self-interested in this context, we don’t have any specific knowledge of the particular self that would allow us to be partisan in standard ways. Deliberation in the original position behind the veil of ignorance should insure that no one’s interests are short-changed.
We can also see the way in which Rawls’ veil of ignorance helps to even our some of the effects, both positive and negative, of mere luck. We do not know whether or not we have been lucky enough to be very intelligent, to be very athletic, to be very gregarious, to be very rich, to be part of the ruling elite. The veil of ignorance flattens out some of those quirks of fate, and in so doing provides a more level playing field for the moral life.
Rawls’ Principles
Deliberating behind the veil of ignorance in the original position, what principles will we adopt for our society according to Rawls? He maintains that would reach agreement on two basic principles, one regarding basic rights and liberties and the other regarding the distribution of social and economic inequalities.
Basic Rights. In A Theory of Justice, Rawls maintains that “Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.”
The Difference Principle. “Social and economic inequalities are to satisfy two conditions:
(a) they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and
(b) they are to be to the greatest benefit of the least advantaged members of society.” (TJ, pp. 5-6; formatting added)
These two principles form the core of Rawls’ position, and they can both be seen as principles of distributive justice. The first principle, the basic rights principle, establishes how we should distribute liberties. Part (a) of the difference principle establishes how we should distribute opportunities. These two principles are indexical, that is, if there is a conflict, principle 1 overrides principle 2, and (a) overrides (b). Let’s look at some examples to see what Rawls means by these principles.
Consider the Difference Principle, part (a). (This example will be more concrete than Rawls would give, but it illustrates the point quite well.) We have laws regulating driving regarding speeding, stop lights, etc. If two people were speeding, and the police let one go because the speeder was the child of the chief of police, we would consider that unjust. If, however, the police did not stop a speeding ambulance because it was rushing someone to the hospital, that would not offend our Rawlsian sense of justice. The exception would be based on the position or office (ambulance driver), which is open to all, whereas this is not the case with the child of the chief of police.
The Difference Principle, part (b) might be used to justify attempts to level the playing field after inequalities due to racial discrimination. We might, for example, treat people differently because they had been severely deprived due to racial bigotry. Such differential treatment might involve additional tutoring, more active recruitment, and the like. The underlying justification of this, In Rawls’ eyes, is that these are the least advantaged members of society and differential treatment is justified in order to narrow the gap between the least advantaged and the majority of society.
Similar considerations might be used to justify the Americans with Disabilities Act. It is reasonable, within the light of the Difference Principle (b), to provide access ramps in public places for people with disabilities that require such ramps, to provide elevators in multistoried buildings, etc. Again, the key insight here is that differential treatment is justified precisely in the case of the least advantaged.
On the other hand, this principle would not justify large tax exemptions for the wealthy, precisely because this would not benefit the least advantaged but rather the most advantaged.
Distributive Justice: Non-Rawlsian Theories
Much of the work done in the last fifty years has centered on the theory of distributive justice, and Rawls’ A Theory of Justice is one answer to the question of distribute justice. It is not, however, the only one Let’s first look at two of the problems these theories of distributive justice are intended to address: the distribution of scarce goods and the distribution of inequalities. Then we will look at three additional theories—egalitarian, welfare, and libertarian or market-based approaches—that will round out our account of distributive theories of justice.
The Distribution of Scarce Goods
There are many things in society that are in comparatively short supply, where the need (or demand) exceeds the supply. Take, for example, the need for kidney transplants. The demand for kidneys far exceeds the supply. How can we best deal with this situation? Consider several possible approaches.
First, we could say that the kidneys should go to the medically most needy (i.e., those closest to death from kidney failure), perhaps further determined by the likelihood that the transplant will be successful. This is the Rawlsian approach. Second, we could say that everyone has an equal right to these resources and, where they are scarce, simply have a lottery. This would be an egalitarian approach. Third, we could say that the kidneys should go to those whose continued functioning would be most beneficial to society as a whole. This is the utilitarian or welfare approach. Thus religious or financial leaders, creative scientists and industrialists, and the like would be more likely to receive transplants than, say, vagrants or dishwashers or clerks in stores. Fourth, we could simply say that kidneys go to the highest bidders. After all, that’s what we do with many other commodities in our society. We can call this the market-based approach.
Presumably, when we ask questions such as these, we have in mind some principle of justice for apportioning those scarce goods. If might be a market principle, a principle of need, a principle of desert or merit, a consequentialist principle of benefit, or yet some other principle. The point here is simply that theories of distributive justice arise, at least in part, precisely out of the need to provide answers to questions such as these.
The Distribution of Inequalities
Inequalities abound in life. Some people are rich, some poor. Some are musically gifted, others are tone deaf. Some have photographic memories, others must work very hard to remember even a small portion of what they read. Some are held hostage by terrorists, others move about freely. Some people are physically attractive to many others, some are not. Some people come from homes in which they have every advantage, while others come from homes characterized by neglect and abuse. Some children are born into families of affluence in wealthy countries like the United States, while other children are born into conditions of starvation in Bangladesh and often do not survive to reach adulthood. Some people are genetically predisposed toward good health, while others suffer early attacks of cancer and other disorders despite living cautious lives.
Clearly we respond to some of these inequalities differently than others, and a theory of distributive justice is intended to help us distinguish among different kinds of inequalities and decide how to respond to each kind. There are some kinds of inequalities, such as musical ability or physical attractiveness, which do not call for any special response from us. Other types of inequalities, however, may place some moral demands on us.
Consider the response to the families of victims of the September 11th attacks in the United States. A fund was established to compensate families of victims, and it soon raised fundamental issues about compensatory justice. Should each family, whether rich or poor, be given the same amount of money for each family member lost in the attacks? Should families who lost family members who were the principal earners of income be compensated more than those families who lost non-working members of the family? (This is sometimes done in law suits for damages due to wrongful death.) Even more fundamentally, should these families be compensated when, for example, a family that had lost its breadwinner the day before in a mugging receives no compensation? What makes some families more deserving than others when they have had an equal loss?
Egalitarian Conceptions of Justice
Egalitarian conceptions of distributive justice maintain that everyone ought to be treated equally. An egalitarian distribution of income, for example, would require that all persons (or at least all workers) receive the same income. Sometimes this is justified on the basis of a claim that everyone deserves equal respect.
Obviously, an egalitarian conception of distribute justice would demand an economic structure much different from our own. Capitalism distributes income according to a market model, and typically in liberal democracies the government attempts to rectify the grossest injustices through taxation and consequent redistribution of some of the income through social welfare programs. However, the basic wage structure remains market-driven. For an egalitarian approach to distributive justice to be implemented, a very different and much more centralized economic system would have to be in place. Theoretically egalitarian system of distributive justice exist in some state-controlled economies such as Cuba, but the reality often falls far short of the ideal. In the Soviet Union, allegedly egalitarian distribution schemes were marred by flagrant patterns of exceptions for state and Communist Party officials. The result was egalitarianism for the poor and luxury for the powerful.
Welfare Conceptions of Distributive Justice
Utilitarian conceptions of justice stress the way in which the just distribution of resources is the one which produces the greatest overall amount of welfare or utility. While there is extensive debate about the precise definition of welfare or utility, as we have seen in Chapter 5 on utilitarianism, the basic insight here is simple and easy to state: a just distribution of goods and opportunities and liberties is the one that produces the greatest overall amount of welfare.
Welfare-based conceptions of distribute justice are open to some of the same difficulties we discussed in regard to utilitarianism in general. It seems, for example, to open the door to what we would usually consider unjust treatment of individuals in certain circumstances. It might justify racist or sexist treatment of minorities as just under certain empirical conditions. Rawls rejected the utilitarian account of justice because of cases such as these. Moreover, Rawls argued that even when the welfare or utilitarian conception of justice arrived at the right answer, it did so for the wrong reasons. Racial discrimination, for example, is not unjust because it is inefficient; it is unjust because it is inherently unfair and deprives some individuals of their basic rights unjustly.
Libertarian Conceptions of Distributive Justice
One of the most powerful challenges to Rawls’ account of distributive justice comes from libertarians, who advance a market-based theory of distributive justice Perhaps the best known of these challenges was Robert Nozick’s Anarchy, State and Utopia, which appeared in 1974, three years after Rawls first published A Theory of Justice.
For libertarians, ownership of property plays a central role. Inspired by the work of British philosophy John Locke (1632-1704), libertarians see ownership as the central right of human beings, beginning with ownership of one’s own body. The natural world is originally not owned by anyone, but by transforming it through work, individuals can make it their own. Is there any limit on how much of the natural world any one individual can acquire? Obviously, libertarians do not want to justify a world in which a few people could lay claim to vast portions of the world to the exclusion of everyone else, but it is also clear that they want to leave as much room as possible for people to approach this limit. Nozick argues that there is such a limit: individuals cannot lay claim to so much of the natural world that other people are thereby put in a worse position than when the land was un-owned.
Consider the days in which the United States had vast tracts of land, usually taken from the indigenous Americas who had been living there, that it offered to settlers. In these cases, the United States government chose a broadly egalitarian conception of distributive justice, distributing the land in limited parcels to all who staked a claim. If it had adopted a libertarian strategy, it would have permitted a few individuals to claim vast amounts of land up until the point at which doing so would put others in a worse condition.
Interestingly, this example raises another problem for libertarian accounts of distributive justice. What does the libertarian say about property that may at some earlier time have been acquired unjustly? Nozick admits that he needs some kind of principle of rectification of past injustices, but that principle has yet to be adequately formulated.
Because libertarians take ownership to be the fundamental right, they often see attempts by the state to deprive individuals of their ownership to be unjust. The most obvious example of this is taxation. Welfare theorists will often see a high rate of taxation as just as long as it serves to promote the welfare of all citizens, including those who are most disadvantaged. Libertarians, on the other hand, see much taxation as unjust, as the government taking something that rightfully belongs to one individual and giving it to someone else. Unless there is an extraordinarily serious justification for that kind of action, it is tantamount to theft. For libertarians, government should be minimal and taxes should be kept as low as possible. The principal role of government should be the protection of property rights. Not the taking of property.
So, too, libertarians see government regulation on the use of private property to be equally unacceptable. If I own a piece of property, I ought to be able to do what I want with it as long as I do not directly harm someone else. An interesting example of this occurred in the area of Lake Tahoe. Well-known for the color and clarity of its water, Lake Tahoe started to feel the effects of pollution in the 1980’s. Regulators decided that certain parcels of land could not be sold or built upon until an adequate solution to the pollution problem was reached. This did not apply to all pieces of land in the area, only those regulators earmarked as having a run-off to the lake. As a result, some individuals were unable to sell or use their land while their neighbors could do both—and despite not being able to sell or use their land, these individuals had to pay taxes on that property. This is precisely the kind of situation that libertarians find outrageous and unjust.
Justice and the Politics of Difference
Numerous critiques of standard accounts of distributive justice have appeared in recent years, and one of the most interesting and well-articulated of those critiques is Iris Marion Young’s Justice and the Politics of Difference (1990).
In contrast to the many theorists we have seen who take justice to be primarily about the distribution of goods and burdens in society, Young sees justice primarily in terms of the overcoming of oppression and domination, which are seen principally in terms of groups. In her analysis, Young distinguishes five faces of oppression: exploitation, marginalization, powerlessness, cultural imperialism and violence. When Young talks about justice, she is talking about the justice of social movements such as the civil rights movement, feminism, and other political movements of the sixties and beyond. Ideally, the just society would be one where there is no oppression or domination. This is more than, and different from, the proper distribution of goods and burdens in society, and Young pays particular attention to the ways in which decisions are made in society, to the societal division of labor, and to the way in which the culture perpetuates oppression. Her analysis of oppression is much more concrete, picking up the details and nuances of the lived experiences of oppression rather than the general theory. She wants us to see the specific ways in which people are oppressed because of their race, their gender, their sexual orientation. Understanding the concrete faces of oppression is an important step toward overcoming such oppression.
Young draws a key distinction between “theoretical claims” about justice and “situated claims.” Traditionally, discussions about justice have assumed a theoretical standpoint that promised objectivity and neutrality. Recall, for example, Rawls’ account of the original position and the veil of ignorance. By stripping the moral agent of all individuality by putting actual identity behind the veil of ignorance, Rawls’ theory lays claim to an impartiality that, in Young’s eyes, is misleading. She criticizes Rawls and others in this tradition, maintaining that it is, first, an impossibility and, second, a “fiction.” Impartiality cannot really be achieved. What happens instead is that individuals claiming such impartiality exclude all those characteristics that are different from their own and unwittingly treat their own limited viewpoint as the impartial standpoint from which all of morality can be judged. In doing so, so-called impartial theories often perpetuate the hierarchical power structure of society. Thus the apparently neutral standpoint is really a particular standpoint dressed up in the clothing of impartiality. What Young proposes instead is that our discussion of justice be grounded in an awareness of the specific social, political, and economic conditions of our society.
Young does not offer an alternative theory of justice, to be ranked alongside Rawls and others; rather, she offers particular studies of injustice and points to directions in specific cases for improving justice. (Indeed, she even characterizes her work as an anti-theory.) Consider the issue of affirmative action. Both defenders and critics of affirmative action see the issue primarily in terms of whether discrimination is ever justified. Young, on the other hand, argues that the primary issue is not discrimination but oppression. The fundamental question of justice, then, is what we can do to overcome oppression. Once the question has been posed in this way, affirmative action in Young’s eyes ceases to be objectionable. Indeed, we can discriminate among groups and treat them differently if the goal is to overcome oppression. The problem, she maintains, is not discrimination but oppression.
Criminal Justice
We have been examining competing approaches to justice in the preceding sections, but there is another issue of justice that those discussions often neglect: the justice that we seek when someone has broken the law, has committed a crime. Let’s briefly consider this issue and the competing accounts of justice that have been advanced in response to wrongdoing.
Retributive Justice
The dominant justification of punishment in the United States appears to be the appeal to retributive justice. At its core, the notion of retributive justice usually depends on some version of the lex talionis, the law of “an eye for an eye, a tooth for a tooth.” This is retributive justice: if someone has hurt me, that person will be hurt in return in the same way. Often, this notion of retributive justice is used to justify the death penalty: an eye for an eye, a death for a death.
Despite the fact that the lex talionis has some initial plausibility in a small range of cases, we in fact can see that there are many cases where this literal interpretation of the lex talionis makes no sense at all. How, for example, are we to punish those who hijack airplanes? We can’t very well hijack their planes, since they do not have any. What about arsonists? Do we set their homes on fire? Or rapists? Do we rape them in return? Or burglars? Do we steal their money and possessions when they are asleep?
While some would probably advocate those extreme responses, most of us would admit that the literal interpretation of the lex talionis is insufficient for two reasons. First, there are many types of crimes for which it makes no sense that we would try to do the same thing to the perpetrator. The more plausible interpretation of this principle is a metaphorical one that says something like this: the more serious the crime, the more serious the punishment.
But even this will not suffice. We need to recognize that, in the most serious of cases, we may restrain ourselves from extreme punishment because the act of punishing diminishes us. Take rape as an example. To rape a rapist as punishment would be to demean ourselves, the punishers. So, too, we do not torture the sadistic murderer, even though on the basis of some principle of proportionally we believe the murderer deserves to suffer as much as his victims. Again, we restrain ourselves because we would be debasing ourselves to carry out the punishment.
Interestingly, recognizing these two limitations on the lex talionis helps us to find a middle ground in regard to the death penalty. Proponents of the death penalty, if one accepts this principle, are justified in claming that certain criminals have done such horrendous things that they deserve to do. Opponents of the death penalty can admit this, while at the same time arguing that, even if some criminals deserve to die, we do not deserve to kill them. The issue is the effect of the punishment on the punishers.
Those who hold a strictly retributivist account of justice are open to some objections. How should we treat the person who has done something horrible in his youth, subsequently led an exemplary life, and then in old age is apprehended for that crime committed long ago? Retributivists are committed to saying that the magnitude of the crime remains the same, whether committed yesterday or fifty years ago. Other, more forward-looking accounts of punishment would be less likely to punish to the full measure of the law.
Compensatory Justice
When American citizens of Japanese ancestry were sent to detention camps in California during World War II simply because of their ancestry, and when they were deprived of their property as part of this process, they were treated unjustly. It was an injustice because they were deprived of their constitutional rights, rights that are at the very core of our constitution and guaranteed to all citizens. When the treatment of Americans of Japanese descent was done by the government (in contrast to acts of injustice done by individuals), it was an injustice done in our name. As a result, it is argued, we as a country owe them something to compensate for the injustice committed against them.
The notion of compensatory justice provides an interesting alternative to retributive justice. In both accounts, the injured party (or family or descendents) has a claim against the wrongdoer. In retributive justice, the injured party “cashes in” this claim by asking for the wrongdoer to suffer in some way proportional to the offense. In compensatory justice, on the other hand, the injured party cashes in the claim by asking the wrongdoer to make up for the injury.
The notion of compensation, however, depends on a principle of equivalency—that money, for example, can compensate for suffering. It works well in those instances where people have suffered monetary damage, but in other cases it is less appropriate.
Restorative Justice
Although retributive justice has occupied central stage in the Anglo-American legal system, it is not the only conception of justice possible. Indeed, critics of retributivism often point to its potential harshness, especially to those cases in which retributive punishment seems to do more harm than good.
A number of countries, just emerging from harsh and oppressive regimes, have struggled with the limits of retributive justice and, in the process, have fashioned a conception of restorative justice that serves as an important counterbalance to traditional retributivist theory. This was certainly true in a number of Latin American countries such as Chile, which emerged from a long period of harsh rule by Augusto Pinochet and his government. A similar situation existed in South Africa, where decades of apartheid and oppression by the white minority government had resulted in countless injustices against black and mixed-race South Africans.
Countries with such a history face a difficult choice when they finally throw off their oppressive regimes. Once the oppressors have been removed from power, the new government can try to bring past offenders to justice for their past wrongdoings. Retributive justice certainly would support such a course of action, but there are distinct costs associated with pursuing retributive justice in such contexts. First, the extent and intensity of trials for past injustices could easily create deep divisions in society, intensifying the level of hatred between past and present regimes. Such trials, far from healing a society, may actually make it more divided. Such animosity and division, many feel, is a moral evil to be avoided if possible. Second, there are often pragmatic considerations that come into play as well. It is not unusual for the new government to need the expertise of the previous regime in the day-to-day business of running the country. If a large number of those who occupied key positions in that earlier government are in jail, then the possibility that they could participate in the rebuilding of the country is eliminated. Despite such moral and pragmatic considerations, most people feel that horrible injustices have been perpetrated and they are convinced that it would be wrong simply to let people go unpunished. The idea that the guilty should not only go unpunished, but could go simply go about their lives as though they had not done those terrible deeds deeply offends our sense of justice. Thus it would seem that such countries face an insurmountable dilemma.
South Africa and several Latin American countries have explored a third possibility that lies somewhere between retribution and amnesia. Truth and justice commissions have been established in a number of countries whose aim is not to punish, but to set the record straight about what happened during the years of oppression. Thus these commissions aim at justice as reconciliation, but they are clear that reconciliation cannot be founded on lies. Thus the truth about those days must be established before reconciliation is possible.
These commissions do not require repentance on the part of those who come forward, nor do they impose punishments. The principal reason for restricting the commissions in this fashion is that otherwise perpetrators would simply not come forward. But critics of these courts of reconciliation have argued that this is simply not enough. They argue that justice has not been done as long as there is no punishment, and especially if there is neither punishment nor retribution.
Justice as Hozho
The theme of balance and harmony has run throughout a number of our discussions of justice, beginning with Plato’s Republic and the harmony of the soul. Restorative justice often seeks to re-establish a harmony in society, and at times counties forgo harsher paths to justice for the goal of harmony.
The notion of justice as harmony also lies at the heart of the Navajo conception of justice, as we indicated in Chapter Three. The Honourable Robert Yazzie, the Chief Justice of the Navajo Nation, describes the traditional Navajo conception of justice and the ceremonies that accompany it: “Our traditional Navajo justice ceremony is called Hozhooji Naat'aanii. Many Navajo words have no corresponding term in English, so I will say that it is a term which refers to talking and planning to restore damaged relationships, guided by a person with wisdom who helps plan things to regain K'e (respect).”
This is a forward-looking notion of justice, far from the strict retributivism of a philosopher such as Immanuel Kant. Moreover, in sharp contrast to standard Western approaches to justice, it involves healing ceremonies and the spiritual rehabilitation of the offender. Finally, this is a highly participatory process, involving all affected parties.
Global Justice
Considerations of justice have traditionally been situated within a community, whether this be a local community, a state, or a nation. There is, however, an increasing awareness of global justice, an awareness that may well characterized the twenty-first century.
The term “global justice” is ambiguous. It may, on the one hand, refer to seeking just solutions to problems that are global in nature. On the other hand, it may refer to a global conception of justice, that is, a theory of justice that cuts across national and regional and cultural boundaries. These two senses of justice are related, with global problems serving as the driving force for the development of a global conception of justice. Here we shall examine several areas in which issues of global justice arise. First, we will consider the issue of justice in war, which typically involves trans-national considerations of justice. Second, we will turn to a consideration of the environment as an example of a global problem that in turn gave rise to the field of environmental justice. Third,
we will then conclude with a discussion for the prospects for a global theory of justice.
Justice, War, and Peace
Medieval Christian theologians and philosophers (there often wasn’t a clear division in those days) were quite concerned with the application of the concept of justice to conflicts. The most influential of these was Thomas Aquinas, whose account of just war set the stage for most subsequent discussions of this issue. Much more recently, Michael Walzer’s Just and Unjust Wars (1977) has become the definitive work on this issue. These issues have been a matter of deep concern not just to political philosophers, but also the military and political leaders who must sometimes make decisions about whether to commit their nation to war or not. The premise on which this entire discussion rests is a simple one: war is a terrible, terrible evil, and there must be much in its favor before it becomes justified.
Aquinas and many others distinguish two distinct areas where the concept of justice can be applied to issues of war: the just conditions for entering into a war (called Jus ad bellum, “justice toward war”), including the question of just cause of war; and the just conditions for conducting a war (Jus in bellum, “justice in war”). Let’s look at each of these.
Jus ad bellum: When is it just to enter into a war? Just war theorists from Aquinas to Walzer list a number of conditions. Let’s look briefly at each of these conditions.
The first of these is that there must be a just cause, and this usually means that you have been attacked. Typically, starting a war is never just. Second, you must have the right intention. This condition excludes such actions as going to war to expand your territories or influence; it does permit going to war to stop aggression. It is very important for a country to have a clear idea of what it is trying to accomplish by going to war. Is it simply to stop the aggression?
Third, the war must be publicly declared by a lawful authority such as a head of state. Part of the rationale for this requirement is to prevent segments of a country (such as the military) from committing the nation to conflict without an adequate decision-making process. It also prevents pursuing wars in secret without the consent of the whole nation.
Fourth, war must be the last resort. If it is possible to achieve your just ends of other means such as blockades or diplomatic pressures, then it is unjust to resort to war.
Fifth, there must be some probability of success before you are justified in going to war. Here the rationale is simple: war is such an evil that it ought not to be undertaken if there is not some chance of bringing about a significant good.
Sixth and finally, there must be proportionality between the possible benefits of war and the amount of pain and suffering and death that the war will cause.
If all of these conditions are met, then entering into a war is just.
Jus in bellum: The Just Conduct of War. Once a country has entered into a war justly, there still remain important moral considerations about how the war may be conducted. Let’s look at the conditions typically outlined as the conditions necessary for the just conduct of war. There are three such conditions.
First, we must always conduct war in such a way that we discriminate between combatants and civilians. This is one of the most basic rules for conducting a war properly. Civilians cannot be targeted for attack, nor can they be used as human shields to deter enemy attacks. Most just war theorists interpret this condition in such a way as to permit unavoidable collateral civilian casualties, although exactly where the line is to be drawn here becomes an contentious issue.
Consider an example. In attacking an enemy, there is the least chance of civilian casualties if the attack is conducted by ground soldiers. If low-level air attacks are used, the chances of civilian casualties increases but casualties to one’s own forces go down. If high-level air power is used, the chances of civilian casualties become even greater and the safety of one’s own forces increases greatly. The question that then arises is this: in the conduct of war, to what extent is a country justified in trading off increased civilian casualties for increased safety of its own military personnel?
Second, there must be a principle of proportionality in the conduct of war. Countries should only use as much force as is necessary for the achievement of their just goals. This excludes massive attacks when the legitimate goals of the conflict are minor. Often, when this is ignored, we see local conflicts grow into much larger wars simply by their own momentum.
Third and finally, just wars must be conducted in a way that uses no means that are evil in themselves. In recent decades, there has been a consensus developing among most nations that biological warfare agents such as smallpox and anthrax are forbidden because they are means that are evil in themselves. In the Balkans, we saw rape used as a means of war, intended to destroy family and civic structures and thereby destroy the enemy, and such means clearly fall into the category of means that are evil in themselves: there are no circumstances in which their use is permissible. Many would include torture among those means that are evil in themselves.
These conditions of a just war have been shaped over the years to fit the traditional model of large nation states. In the late twentieth and the beginning of the twenty-first century, we have seen situations arise which this doctrine of just war was not originally designed to cover. Let’s briefly consider two of those here.
Humanitarian interventions. It’s clear that just war theory specifies the conditions under which a nation can respond to an attack. But what do powerful nations do when they see grave injustices, such as genocide, occurring in other countries? It seems to violate our basic sense of justice and decency simply to stand by and allow such things to happen, despite the fact that the attacks are not against our own nation. Typically, diplomatic and economic pressure are the first lines of offense here, but in some situations they have relatively little impact on the situation. Non-military interventions may sometimes make a difference, but at least in some cases nothing short of military intervention offers the hope of protecting the innocent in such situations.
Are nations who are not directly attacked ever justified in intervening militarily for humanitarian reasons to prevent the loss of civilian lives? Does this count as a “just cause” for entering an armed conflict? The answer that has emerged in the West is an affirmative one: sometimes third-party military intervention for humanitarian intervention may be justified in order to save the lives of innocent people. Typically, this is done under the sanction of some multinational organization such as the UN or NATO, in part to prevent it from degenerating into some kind of nationalistic campaign. Within this context, all the conditions for just war will continue to apply.
Terrorist threats. Traditionally, war has taken place between nation states. What happens when a nation is attacked by an entity that is not a state? Consider the Taliban attacks against the United States. No nation declared war against the United States, and many would say that if the United States were to declare war on the Taliban, this would in effect raise the Taliban’s level of status to that of a nation state.
So, too, terrorists typically do not distinguish between military and civilian targets. Indeed, they often prefer to attack civilian targets. They are easier to attack with fewer casualties, and attacks against civilian targets can often bring terror to the entire population. One of the principal objections to terrorism, from the standpoint of just war theory, is that it often ignores the crucial distinction between combatants and civilians. Not only does it target civilians, but terrorists often themselves hide out among civilian populations and, because they do not fight in uniform, the line between civilians and terrorists is often blurred.
Jus post bellum: A Just Peace. Although typically the discussion of justice and war has been limited to jus ad bellum and jus in bellum, the classical sources also contain a discussion of a third type of justice: justice in peace. According to Brian Orend, there are five conditions for a just peace: just cause for termination; right intention; public declaration and legitimate authority; discrimination; and proportionality. A just cause for peace exists when the rights that were originally violated are now restored. The right intention excludes motives of revenge against the defeated, and both victors and vanquished must be subjected to the same laws. This precludes, for example, holding the defeated accountable for war crimes but not doing the same thing for yourself and your allies. Whatever punishment is exacted must discriminate appropriately between general citizens and military personnel and, within the military, between those responsible for prosecuting the war and those not in leadership positions. Finally, a just peace is marked by proportionality, where punishments exacted are proportional to the severity of the offense.
One of the most intriguing aspects of the notion of a just peace is that it can guide the conduct of a war. Faced with difficult decisions, national leaders can ask themselves which alternative will increase the possibility of just peace at the end of the conflict. In the American Civil War, we saw the way in which certain actions, such as Sherman’s march through South Carolina, left a bitter legacy that endangered the prospects of a just peace, On the other hand, the leadership that Abraham Lincoln showed, including his generous terms of surrender, promoted the possibility of a just peace. Wise leaders are able to conduct war in a way that maximizes the possibility of creating a just and lasting peace.
War is not the only problem that crosses national borders and raises issues about justice beyond borders. Let’s turn to a consideration of other global problems and issues of global justice.
Global Problems
One of the principal factors contributing to the emergence of a global conception of justice is the emergence of ethical issues with a global dimension as well as an increasing awareness of the global nature of many existing ethical problems.
The Environment. Consider the emerging field of environmental justice, a field well grounded in an awareness of the global nature of both ethical problems and their solutions. Increasingly, philosophers and others working in this area have pointed to the way in which problems such as famine and atmospheric and water pollution transcend national boundaries in several ways. We can see this clearly in many cases of environmental pollution. Small, developing countries may feel the effects of large, highly industrialized countries in at least two ways. First, they may experience the effects of such pollution directly through, for example, reduced air and water quality that is directly traceable back to developed countries as its point of origin. Second, and more frequently, they may experience the polluting effects of foreign-owned industry in their own country, since highly industrialized countries often locate factories in developing nations in order to avoid the more stringent labor and environmental regulations they encounter at home.
Just as there is a growing awareness that many problems are global, so too there is a growing consensus that the solution to those problems is global as well. No single country can solve, for example, the problem of atmospheric pollution, even for itself, because no one owns or controls the atmosphere. Individual countries can, of course, reduce atmospheric pollution that originates within their own borders, and this may make a significant difference in their air quality. However, they are still subject to the effects of pollution emitted into the atmosphere by other countries, and there is simply no way that they can solve this problem in isolation.
Nor is the effect of atmospheric conditions limited to the quality of the air we breathe. Atmospheric conditions can have profound effects on farming, and this in turn can have a major impact of food production. If severe climate changes (such as holes in the ozone layer) result in global warming, this can have very negative effects on crop production, which can precipitate famines in certain regions of the globe. Once again, we note that a country may well act responsibly within its own borders and nonetheless suffer the impact of environmentally irresponsible actions taken by those outside its borders. In cases such as these, no solution is possible as long as one stays within the national borders. The question of justice as fairness then emerges quite clearly: is it just, is it fair for some nations (and their populations) to suffer the harmful consequences of actions taken by other nations, especially when those actions are performed with knowing disregard of their negative consequences on other countries?
Economic Exploitation. Many products today are manufactured in a way that crosses national boundaries. An car advertised as “made in America” might have been assembled here, but many of the part of the car could have been manufactured around the world. Moreover, many of the consumer goods sold in the United States are made outside the country. In some cases, United States-based manufacturers have moved their factories to other countries, where labor is cheaper, environmental and safety restrictions are more lax, and natural resources are more easily and cheaply available.
To what extent do considerations of economic justice extend beyond national boundaries? It is clear that some large international companies use labor and resources from developing countries in ways that many social theorists label as exploitation. Take the example of Nike. They have been accused by critics of exploiting labor in China, Vietnam, and other countries; they are accused of low salaries (20 cents an hour in Indonesia, according to a CBS News story), poor working conditions, and (at least in the past) employing very young workers. At the same time, critics point out, Nike shoes sell at very high prices and its President has become the fifth wealthiest person in the United States. Nike counters that its wage structure matches local wages, and this raises precisely the question at the heart of this section: how can we achieve economic justice in a world marked by radical economic disparities? These are truly global problems, not confined to a single country or region. To deal with them, we need a global account of justice.
Global Theory
Retributive Justice. One of the earliest attempts to develop and implement a global notion of retributive justice occurred after World War II with the Nuremberg trials. During World War II, Germans under the leadership of Adolph Hitler set about to systematically eradicate Jews, gypsies, and homosexuals, as well as to enslave other groups (such as the Poles) as less than human. The staggering atrocities committed by the Germans at concentration and death camps such as Auschwitz and Dachau were on a scale seldom seen before.
The Nuremberg trials asserted a global conception of justice, at least in the very minimal sense of declaring that certain kinds of flagrantly egregious behavior violated even the minimum standards of justice. Yet Nuremberg and other such trials have often been plagued by the fact that they have only been established after the crimes have taken place, and in the eyes of some this has been a mark against their legitimacy. Laws, critics argue, cannot be passed retroactively, and they argue that it is unjust to hold someone accountable to laws that were not on the books when the alleged offenses occurred.
The International Criminal Court, which was established by the Rome Statute in 2002 and scheduled to become operational in 2003, has been ratified by over sixty nations and promises “to prosecute people accused of genocide, crimes against humanity and war crimes.” This is a restricted jurisdiction, since many crimes do not fall under these three headings, but it is precisely the jurisdiction that Nuremberg and other war crimes tribunals lacked. It remains to be seen whether countries (including the United States) will be willing to give up some claims of national sovereignty in order to support such a world court of criminal justice.
Distributive Justice. Environmental theorists are leading the way in the development of a theory of global distribute justice. This is an extraordinarily important area, but one in which much work remains to be done. Typically, discussions of distribute justice have tended to occur within the context of nations, for there is rarely any transnational apparatus for controlling the distribution of resources and opportunities. Individual countries, for example, may redistribute wealth through taxes and other means, but there is no international organization with comparable worldwide authority.
Economists and others are actively engaged in the process of developing a global theory of distributive justice. One of the foremost figures in this area has been Amartya Sen, the Nobel Prize-winning Indian economist who has devoted his life to understanding and articulating the demands of justice and equality within a global economic context.
Issues of global distributive justice emerge in many contexts. Perhaps the most notable of these has been in regard to world hunger. The vast disparity that exists between the affluence of highly industrialized nations and the poverty and hunger of many developing nations raises fundamental issues of justice. Is it fair that so few would have so much, while so many exist in abject poverty?
Consider a second example of this issue: the rise of HIV and AIDS and the price of medicine to combat them. In July, 2002 a United Nations report predicted that AIDS would claim 65 million lives by the year 2020, triple the number who have already died. By then, the death toll from AIDS will rival the death toll from all the wars of the twentieth century combined. Political leaders in affected countries have argued against traditional patent regulations that prevent them from producing anti-AIDS medications, and they maintain that argue that it is unjust for such companies to charge such high prices that countries often cannot afford to provide medicines to much of their population.
Two of the most prominent attempts to articulate global theories of justice come from rights-based theories and from utilitarianism. Henry Shue, for example, has argued in Basic Rights that everyone has certain positive rights, including the right to subsistence. Peter Singer, on the other hand, has forcefully articulated the utilitarian case for a global theory of economic justice, especially in regard to the issue of world hunger.
Conclusion
The concept of justice is one of the most fundamental concepts in the moral life. Little children appeal to it (“it’s not fair that she gets two pieces of cake”) just as critics of multinational corporations make use of it (“Paying workers twenty cents an hour is unjust!”). We find ourselves facing two distinct kinds of questions. The first concerns precisely what we mean by justice, and here philosophers and social scientists economists can cooperate in articulating the precise meaning of justice. The second concern the implementation of justice, how we make the world a just place to live. This is an issue that concerns everyone: politicians, religious leaders, and everyday citizens. As we shall see in our concluding chapter, the implementation of just social and economic and political structures is the foundation of a lasting world peace.
Bibliographical Essay
For web-based resources on justice, see the page of Justice on Ethics Updates: http://ethics.sandiego.edu/theories/justice/. This includes original texts, articles, and videos of contemporary philosophers discussing the issue of justice.
The literature on justice is vast, stretching back to Plato’s dialogues to the latest post-modernist critiques of justice. Here are some of the highlights.
Anthologies include Morality and Social Justice: Point – Counterpoint, edited by Carol C. Gould, James P. Sterba, William Gaston, Milton Fiske. Tibor R. Machan, Robert Solomon, Alison M. Jaggar (Lanham: Rowman and Littlefield, 1994) Robert C. Solomon and Mark C. Murphy, What Is Justice?, 2nd ed. (New York: Oxford University Press, 1999); Jonathan Westphal, ed., Justice (Indianapolis: Hackett, 1996); The Just Society, edited by Ellen Frankel Paul, Fred Miller, Jr., and Jeffrey Paul (Needham Heights: Cambridge University Press, 1995); Milton Fisk, Justice (Atlantic Highlands: Humanities Press, 1993); Will Kymlicka, ed., Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens (Newbury Park: Sage. 1992); Klaus R. Scherer, ed., Justice: Interdisciplinary Perspectives (New York: Cambridge University Press, 1992); James P. Sterba, ed., Justice: Alternative Political Perspectives, 3rd ed. (Belmont: Wadsworth Publishing Company, 1998). For an excellent overview of theories of justice (to which I am indebted in this presentation), see Julian Lamont, “Distributive Justice,” Stanford Encyclopedia of Philosophy: http://plato.stanford.edu/entries/justice-distributive/.
John Rawls’ conception of justice dominates the literature. See his A Theory of Justice, revised edition (Cambridge: Harvard University Press, 1999), originally published in 1973; Political Liberalism (New York: Columbia University Press, 1996); The Law of People (Cambridge: Harvard University Press, 2001); Collected Papers, edited by Samuel Freeman (Cambridge: Harvard University Press, 1999); Lectures on the History of Moral Philosophy, edited by Barbara Herman (Cambridge: Harvard University Press, 2000).
John Rawls, Justice as Fairness: A Restatement, edited by Erin Kelly (Cambridge: Harvard University Press, 2001). For critiques, see
Samuel R. Freeman, ed., The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2002); Reading Rawls: Critical Studies on Rawls' 'A Theory of Justice', edited by Norman Daniels (Palo Alto: Stanford University Press, 1990); Tomas Pögge, Realizing Rawls (Ithaca: Cornell University Press, 1990); Robert B. Talisse, On Rawls (Pacific Grove: Duxbury, 2000); Andrews Reath, Christine M. Korsgaard, and Barbara Herman, eds., Reclaiming the History of Ethics: Essays for John Rawls (Cambridge: Cambridge University Press, 1997); Chandran Kukathas, Rawls: “A Theory of Justice” and Its Critics (Stanford: Stanford University Press, 1990); Robert Paul Wolff, Understanding Rawls: A Reconstruction and Critique of a Theory of Justice (Princeton: Princeton University Press, 1971); and Thomas Nagel, “The rigorous compassion of John Rawls. Justice, Justice, Shalt Thou Pursue,” The New Republic (1999), available on-line at http://www.tnr.com/archive/1099/102599/nagel102599.html.
Among the many other excellent books on justice, see Onora O’Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000) for a tightly-argued case for seeing justice in cosmopolitan terms, and especially for her discussion of transnational economic justice; Brian Berry, Justice as Impartiality (New York: Oxford University Press, 1996) and his Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge: Harvard University Press, 2001); James P. Sterba, Justice for Here and Now (Cambridge: Cambridge University Press, 1998) for both applications of the concept and an attempt to reconcile apparently conflicting accounts of justice; Robert C. Solomon, A Passion for Justice (Lanham: Rowman and Littlefield, 1995) for a nuanced treatment of the affective dimension of justice; Patrick Riley, Leibniz' Universal Jurisprudence: Justice as the Charity of the Wise (Cambridge: Harvard University Press, 1996), for a notion of justice based on wisdom and love instead of the standard contractarian account; Geoffrey Cupit’s Justice as Fittingness (New York: Oxford, 1996) who argues that injustice is a form of unfitting treatment; James S. Fishkin, The Dialogue of Justice. Toward a Self-Reflective Society (New Haven: Yale University Press, 1993); Jeffrey Reiman, Justice and Modern Moral Philosophy (New Haven: Yale University Press, 1990); John E. Roemer, Theories of Distributive Justice (Cambridge: Harvard University Press, 1996.
On Kant and justice, see Thomas E. Hill, Jr. Respect, Pluralism and Justice: Kantian Perspectives (New York: Oxford University Press, 2000); .Allen D. Rosen, Kant’s Theory of Justice (Ithaca: Cornell University Press, 1993), as well as the work of Onora O’Neill cited above..
. On the libertarian conception of justice, see especially Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1977); Loren E. Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987); and G. A. Cohen, Self-Ownership, Freedom, and Equality (New York: Cambridge University Press, 1995).
On pluralist conceptions of justice, see Jon Elster, Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens (Newbury Park: Sage Publishers, 1992); Georgia Warnke, Justice and Interpretation (Cambridge: MIT Press, 1993) discusses the hermeneutical turn in theories of justice; Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1990); David Miller and Michael Walzer, Pluralism, Justice, and Equality (New York: Oxford University Press, 1995); Michael J. Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge: Cambridge University Press, 1996); William A. Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge: Cambridge University Press, 2002).
The literature on race and justice is extensive. See especially Bernard Boxill, Blacks and Social Justice, Revised Edition (Lanham: Rowman and Littlefield, 1992); Gertrude Ezorsky, Racism and Justice: The Case for Affirmative Action (Ithaca: Cornell University Press, 1991). On reparations, see When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice (New York:: New York University Press, 1998)
On just war theory, see the excellent overview by Brian D. Orend, "War ,“ in the Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/war/). Michael Walzer’s Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd ed. (New York: Basic Books, 1979) remains the classic text, while Jean B. Elstain’s Just War Theory (New York: New York University Press, 1994) is an excellent anthology. On Walzer, see Brian Orend, Michael Walzer on War and Justice (Montreal: McGill-Queens University Press, 2001); also see his War and International Justice : A Kantian Perspective (Waterloo: Wilfrid Laurier University Press, 2001).
On retributive justice, see Robert M. Baird and Stuart E. Rosenbaum, Punishment and the Death Penalty: The Current Debate (Buffalo: Prometheus Books, 1995); Michael Davis, To Make the Punishment Fit the Crime: Essays in the Theory of Criminal Justice (Boulder: Westview Press, 1992); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 6th ed. (Boston: Allyn & Bacon, 2000).
On environmental justice, see K. S. Shrader-Frechette. Environmental Justice: Creating Equity, Reclaiming Democracy (New York: Oxford University Press, 2002); Luke W. Cole and Sheila Foster, From the Ground up: Environmental Racism and the Rise of the Environmental Justice Movement (New York: New York University Press, 2000); David Schlosberg, Environmental Justice and the New Pluralism: The Challenge of Difference for Environmentalism (New York: Oxford University Press, 1999); Andrew Dobson, Justice and the Environment: Conceptions of Environmental Sustainability and Dimensions of Social Justice (New York: Oxford University Press, 1999); Peter S. Wenz Environmental Justice (Albany: State University of New York Press, 1998); Benjamin J. Richardson, ed., Environmental Justice (New York: Kluwer Academic Publishers, 1999);
On international justice, see Robin Attfield and Barry Wilkins, eds., International Justice and the Third World (New York: Routledge, 1992); On international economic justice, see Amaryta Sen, On Ethics and Economics (Oxford: Blackwell Publishers, 1989) and Inequality Reexamined (Cambridge: Harvard University Press, 1995) and, most recently, Development as Freedom (Garden City: Anchor Books, 2000).
Discussion Questions
1. Review the just conditions for entering into a war. Which of those have been met in the United States’ war on terrorism? Which have not been met? To what extent is this a just war?
2. Imagine that you are the CEO of a major U.S. company with manufacturing plants around the world. You have been accused of employing people in other countries at wages below the subsistence level. What would you do?
3. Consider your response to Question #33 in our initial survey: “Justice consists of treating everybody exactly the same.” In what kinds of situations, if any, would justice demand treating people differently?
4. Recall your response to Question #34: “A just society is one in which everyone has the maximal amount of liberty.” When is the government justified in restricting liberty? What is the justification for such restrictions? How would a libertarian and a liberal differ on this issue?
5. Our world today is characterized by vast economic differences between rich countries and poor countries. Are these differences injustices? Why or why not? How should we respond to them?
6. When, if ever, are we justified in intervening to prevent injustices beyond our national borders? If, for example, genocide is occurring in another country, to what extent do other nations have an obligation to intervene in such situations?
7. In the movie “Twelve Angry Men,” we see a nuanced portrait of different conceptions of justice. Drawing on the ideas in this chapter, describe the different conceptions of justice that various jurors exemplify.
8. In the movie, “Long Night’s Journey into Day,” directed by Frances Reid and Deborah Hoffmann, we see a portrait of justice in South Africa. What does the film tell us about restorative justice? How does it affect your understanding of this concept?
2. Equal Protection before the law
1. Is there any discrimination against immigrant workers in your country? How is it manifested? Are there any laws to punish such acts?
2. Is there any discrimination against emigrant workers from your country in the countries of employment or the countries of transit? How is it manifested?
3. Are there cases in your country of illegal immigrant workers who have less favorable working conditions than those of your citizens and are these persons exploited or performing forced labor? If so, could you give any cases? Are there mechanisms or procedures to make sure that such situations do not occur? What are they?
4. Are immigrant workers, especially undocumented or irregular workers, employed at wages below the minimum wage in effect for citizens of your country? If so, could you give the reasons for this and the consequences?
5. Do you know whether any emigrant workers from your country are employed in the countries of transit or employment under working or wage conditions that are below the minimum applied or paid to the citizens of those countries? If so, could you indicate the country or countries where this occurs, the reasons and the consequences?
6. Does your country have any type of inspection or criminal, civil or other type of penalties to prevent employers from hiring irregular migrant workers?
Brazil
1. See answer of question 1 concerning xenophobia.
2. In general, Brazilians adapt easily to the culture and style of life in the countries to which they go, assimilating well into the local society.
In some cases, the type of work they do (which is normally avoided by the local population) and their status as illegal aliens in certain countries may cause some problems and difficulties fitting in, but there have been no cases of systematic discrimination against them because they are Brazilians.
3. As explained in item 17 above, less favorable treatment will take place to the extent that the migrant worker not legally in the country is subjected to discriminatory practices in the informal labor market (low wages and excessive hours), which are applicable not only to all foreigners but to informal workers in general, including Brazilians.
4. Answered above (Nº 3).
5. With regard to those who are illegal, there are no official data on salary levels or labor guarantees to which they may be entitled, although it is known that they usually take up informal jobs or accept what is considered unhealthy work. Those who work legally are generally contracted in accordance with local labor laws.
Some occasional problems have been reported. This is the case of Brazilian workers in Japan, who do not experience wage discrimination, but have problems concerning respect for their labor rights because of the special relationship they have with the employing agencies. Normally the workers are not contracted directly by the companies, but by employment agencies that do not always act properly and do not usually respect the labor rights guaranteed under Japanese law.
6. The Law Governing Foreigners (No. 6,815/80) specifies the rights and duties of the alien, as indicated below, and if employers fail to observe the law they can be assessed heavy fines. There are several other resolutions of the National Immigration Council that govern the granting of visas to aliens summoned to work in Brazil for pay.
Article 97. Aliens are permitted to engage in remunerative activity and enroll in an institution of learning subject to the restrictions established in this law and its regulations.
Article 98. Aliens who are in Brazil on tourist, transit, or temporary student visas, and dependents of persons with any temporary visa, are not permitted to engage in gainful employment. The holder of a temporary visa for correspondents of foreign newspapers, magazines, radio, television, or wire services may not receive remuneration from a Brazilian source.
Article 99. An alien with a temporary visa is prohibited from establishing his or her own business, or serving as an administrator, manager, or director of a corporation, or registering to exercise one of the regulated professions.
Sole Paragraph. Bearers of temporary visas who are professionals contracted by a private entity or a federal, state, or municipal agency are permitted to register for the temporary exercise of a regulated profession.
Article 100. Aliens admitted temporarily under contract may only exercise the activity with the contracting party at the time the visa was granted, unless otherwise authorized by express permission of the Ministry of Justice, upon recommendation of the Ministry of Labor.
Article 125, section VII. It is against the law to hire or use the services of an illegal alien or one who is precluded from engaging in gainful employment. The penalty for each alien is a fine of 30 times the reference index.
Canada
1. Please refer to answer 1 concerning xenophobia.
2. Not available.
3. The Canada Labour Code is the federal employment standards legislation applicable to types of employment that fall under federal jurisdiction. The Code applies to specific industries and sectors falling within the exclusive legislative authority of the federal government. Each province or territory has similar employment standards legislation.
Employment standards cover such topics as the minimum age of employment, minimum wages, equal pay, parental leave, other leave, hours of work and overtime pay, weekly rest-day, annual vacations with pay, general holidays with pay, notice of termination of employment, and recovery of unpaid wages. Minimum wages vary in each province.
Canadian labour laws would generally apply to all temporary foreign workers working in Canada. As well, all companies operating in Canada are subject to these laws.
4. In Canada, all immigrants are documented. However, it goes without saying that there are illegal movements of workers in almost all countries and the chances that such workers would be paid less than minimum wage or less than the going rate for whatever service they provide is appreciably higher.
5. Not known.
6. In an effort to discourage the hiring of illegals Canada has made it an offense under the Immigration Act, punishable by imprisonment or a fine or both, to employ a person who is not a citizen, permanent resident or does not possess the proper work authorization (section 96 of the Immigration Act).
Subsections 96(1) and (2) provide as follows:
96(1) Unauthorized Employment of Visitors and Others - Every person who knowingly engages in any employment any person, other than a Canadian citizen or permanent resident, who is not authorized under this Act to engage in that employment is guilty of an offence and is liable
(a) on conviction of indictment, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding two years or to both; or
(b) on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.
96(2) Deemed Knowledge - For the purposes of subsection (1), a person knowingly engages in any employment a person who is not authorized to engage in that employment where, by the exercise of reasonable diligence, he would have known that he person was not so authorized.
Periodic inspection are carried out by immigrant officers suspecting employers of violating the Immigration Act.
Colombia
1. No. Nonetheless, domestic legislation does establish mechanisms to protect nationals, as is evident in Article 74 of the Labor Code. “All concern with more than 10 employees shall assure that no less than ninety percent (90%) of unskilled workers and no less than eighty percent (80%) of skilled, specialized, managerial or positions-of-trust personnel are Colombian citizens.”
Article 100 of the Constitution stipulates that “Foreigners shall enjoy all civil rights enjoyed by Colombian citizens. For the maintenance of public order, however, the law may place special conditions on such rights or suspend the exercise of certain of them by foreigners.”
These regulations, in conformity with Articles 10 and 143 of the Substantive Labor Code and Article 179 of Decree 1275/70, place certain conditions on the hiring of foreign workers, but in no way permit discrimination against them.
These regulations safeguard workers and punish discriminatory behavior aimed against them.
Neither the Ministry of Labor nor the Office of the Assistant Secretary for Consular Affairs and Colombian Communities Abroad (Ministry of Foreign Affairs) has received complaints about discrimination against migrant workers in Colombia.
2. Yes, there are examples of discrimination. One example is the violation of labor and social security standards when a worker is undocumented. Another is the problems that arise when a person has to renew his/her visa and documents have disappeared or been lost.
3. The DAS has no knowledge of this happening. Moreover, the National Office for the Receipt and Processing of Complaints of the Ombudsman’s Office (Defensoría del Pueblo) has never registered comments or complaints from illegal foreign workers regarding less favorable treatment.
4. The level of remuneration of irregular migrant workers is unknown.
5. Yes, in most States of employment.
6. Yes, there are control mechanisms and/or criminal, civil and other kinds of sanctions to discourage employers from hiring irregular migrant workers.
The International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families stipulates:
Article25 Migrant workers shall enjoy treatment not less favorable than that which applies to nationals of the State of employment in respect of remuneration and:
a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms;
b) Other terms of employment, that is to say, minimum age of employment, restriction on home work and any other matters which, according to national law and practice, are considered a term of employment.
It shall not be lawful to derogate in private contracts of employment from the principle of equality of treatment referred to in paragraph 1 of the present article.
Article 54. Without prejudice to the terms of their authorization of residence or their permission to work and the rights provided for in articles 25 and 27 of the present Convention, migrant workers shall enjoy equality of treatment with nationals of the State of employment in respect of:
a) Protection against dismissal;
b) Unemployment benefits;
c) Access to public work schemes intended to combat unemployment;
d) Access to alternative employment in the event of loss of work or termination of other remunerated activity, subject to article 52 of the present Convention.
If a migrant worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State of employment, on terms provided for in article 18, paragraph 1, of the present Convention.
Article 68. States Parties, including States of transit, shall collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation. The measures to be taken to this end within the jurisdiction of each State concerned shall include:
a) Appropriate measures against the dissemination of misleading information relating to emigration and immigration;
b) Measures to detect and eradicate illegal or clandestine movements of migrant workers and members of their families and to impose effective sanctions on persons, groups or entities which organize, operate or assist in organizing or operating such movements;
c) Measures to impose effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers or members of their families in an irregular situation.
The States of employment shall take all adequate and effective measures to eliminate employment in their territory of migrant workers in an irregular situation, including, whenever appropriate, sanctions on employers of such workers. The rights of migrant workers vis-a-vis their employer arising from employment shall not be impaired by these measures.
The Constitution contains a provision on the right to work, applicable in conformity with Article 100 of the same document to foreigners, and in this case to migrant workers. Article 25 states: “Work is a right and a social duty, and in all its forms enjoys the protection of the State. All persons have the right to a job in fair and dignified conditions.”
Article 290 of the Criminal Code provides for punishment of any violation of the right to work.
Decree 2371 of 1996 “laying out provisions for the granting of visas, control of foreigners and immigration” stipulates: Article 191. The Director of Immigration (Extranjería) and the Section Directors of the Administrative Department of Security (DAS), and the heads of the Investigative Division, the Migration Unit of Eldorado Airport and the Division of Migration and Documentation, as well as the heads of Operational Posts may impose the sanctions herein described by reasoned decision. An administrative appeal may be lodged with execution suspended during the appeal… 3: Fines of 1 to 12 times the legal minimum monthly wage for each foreign worker can be imposed on the legal person, individual or public entity that contracts or gives employment to a foreigner without complying with all legal requirements, or who does not inform DAS that they have contracted or dismissed a foreigner within the 30 calendar days following such action.
Chile
1. Chile has incorporated a philosophy of non-discrimination into its legal and social systems, as outlined below.
a. The principle of equal protection of the law, understood as equal treatment both in terms of the letter of the law and its application, is embodied in domestic legislation (Article 19, paragraph 2 of the Constitution) and in international law binding on Chile (Article 7 of the Universal Declaration of Human Rights, Article 26 of the International Covenant on Civil and Political Rights and Article 24 of the San Jose Pact).
b. The principle of equal treatment without discrimination is embodied in domestic legislation (Article 19, paragraph 2 of the Constitution) and in international law binding on Chile (Article 1 of the San Jose Pact).
c. Both domestic and international law prohibit discrimination based on certain factors.
In this regard, Convention Nº 111 on Employment and Discrimination and Article 2 of the Labor Code of Chile must be mentioned. They both list factors that shall not be the basis of discrimination, such as race, color, sex, political opinion, national or social origin and religion.
The Constitution establishes the principles of equality and non-discrimination in two different manners:
- The obligation not to discriminate is extended from the State to individuals by Article 19, No. 16 of the Constitution.
- And by stating that the only valid criterion for hiring is the qualifications and skills of the individual seeking employment, the Constitution reinforces non-discrimination.
Taking the above as a starting point, we can examine Chile’s legal system (including its international law components) to see how equality and discrimination are approached. Two fundamental conclusions are readily apparent:
On the one hand, there is a personal right emanating from the constitutional guarantee that no one shall be discriminated against. This right means that one should receive from the State the same treatment and respect that is due to all persons.
Any conduct that can be defined as discriminatory goes against the law and is illegal to the extent that it negates or contravenes the right not to be discriminated against.
On the other hand, the Constitution allows the legislature to establish exceptions to absolute equality between nationals and foreigners. Such exceptions are found exclusively in the provisions of Articles 19 and 20 of the Labor Code:
Article 19. At least 85% of the workers in the service of a single employer shall be of Chilean nationality.
Article 20. For the purpose of calculating the percentage mentioned in the previous article, the following rules shall apply:
The number of workers in the service of a single employer shall be calculated as a national total and not broken down by regional or branch office;
Specialized technical positions that cannot be filled by Chilean nationals shall be excluded from the calculation;
Any foreigner whose spouse or children are Chilean nationals, or who is the widow/widower of a Chilean national, shall be considered as a Chilean national;
Any foreigner who has resided in Chile for more than five years, chance absences excluded, shall be considered as a Chilean national.
Thus, a migrant worker as defined in the introduction to this questionnaire enjoys the right of non-discrimination for nationality or for any other reason not connected to the qualifications and skills needed to perform a specific job, the only exceptions being those contained in the Labor Code.
2. This answer was not responded 3. From a strictly legal point of view, migrant workers do not receive less favorable treatment than nationals do, as both are regulated by the same legislation. This emanates from the principles of equal protection of the law, as provided for in Article 19, paragraph 2 of the Constitution, and of non-discrimination in the workplace, as embodied in Article 19, paragraph 16 of the same text.
Migrant workers considered to be in an irregular situation because they haven’t complied with immigration regulations still come under the Labor Code, as all work-related matters in Chile are regulated by it except for the exceptions expressly mentioned in law. Since legality of stay is not a requirement for employment and there is no express exclusion of illegal migrants, it must be concluded that they fall under the same regulations as all other workers in Chile.
Law enforcement regarding either irregular or legal foreign workers can be divided into two areas:
a) The Interior Ministry oversees enforcement of the entry, stay and exit requirements stipulated in immigration regulations.. It investigates potential infractions by workers or employers and has the authority to impose sanctions.
b) The National Labor Office oversees enforcement of job-related questions treated in the Labor Code, such as specific regulations governing contracts, work day, remuneration and termination of employment, and also has the authority to impose sanctions for violation.
4. This answer was not responded.
5. This answer was nor responded.
6. Neither labor law in general nor the Labor Code itself provides for sanctions against an employer that hires an irregular migrant worker.
Elsewhere, however, sanctions for such behavior are provided for. The regulations on immigration contained in DL No. 1094 of 1975 state:
Article 74. Employment shall not be given to foreigners that cannot prove that they are residing or staying in the country legally or that they are duly authorized to work.
Anyone employing or otherwise occupying a foreigner or foreigners must inform the Interior Ministry in Santiago and the regional authority or Provincial Governor, as appropriate, in writing of any circumstance that alters or modifies their residence status within 15 days of that occurring. If the Interior Ministry orders the expulsion of said foreigner(s), he must also cover any expenses related to the expulsion.
Article 75. Ministry of Labor and Social Welfare authorities discovering any infraction regarding the hiring of foreigners must inform the Interior Ministry or the regional authority or Provincial Governor, as appropriate, of said infraction. If it is determined that there was forgery or fraud in the contractual procedure that led to the granting of a visa, the foreign worker can be expelled from the country, without precluding indictment in the criminal courts of the country.
Any employer or person in charge of hiring who misrepresents facts when signing a contract with a foreign worker with the aim of obtaining residence permission for him shall be levied with a fine equal to 1 to 50 times his monthly salary. A repeat offense is punishable by the minimum time stipulated for medium-term imprisonment and a fine. Moreover, the offender must pay for the foreign worker’s passage out of the country.
When State or municipal bodies or services hire foreign workers without proper authorization, the Interior Ministry must request the proper authority to undertake the corresponding administrative court procedures. Any public employees found to be guilty of an infraction can be fined an amount equal to 1 to 15 days of wages. A repeat offense is punishable with dismissal.
In addition, Articles 152 and 154 of the Immigration Regulation, Decree Nº 597 of 1984 of the Ministry of Labor and Social Welfare state:
Article 152. A foreigner must prove that he is a resident or otherwise legally in the country and that he is duly authorized and accredited to work before a potential employer can offer him a job.
It shall be the responsibility of the employer or any other person upon whom the foreigner is dependent to inform the competent authority, in writing and within 15 days, of any circumstance that alters or modifies the foreigners status as a resident.
If infraction of these regulations leads to expulsion from the country, the individual, company or institution employing the foreigner shall be responsible for covering the costs of his exiting the country.
Article 154. Any foreigner who uses forgery or fraud to obtain a work contract shall be subject to expulsion from the country, without precluding any criminal penalties that may apply.
Any employer or person in charge of hiring that commits such an offense shall be subject to a fine of between 0.22 and 11.14 the minimum income level. A repeat offense shall be punishable by the minimum time stipulated for medium-term imprisonment, any corresponding fine and the obligation to pay for the foreign worker’s passage out of the country.
Enforcement and application of administrative sanctions corresponds to the Interior Ministry or to the regional authority or provincial Governor, as appropriate and according to the pertinent regulations.
Dominica
1. (A) No, (B) Yes.
2. We are unable to furnish you with response to this questions.
3. No.
4. No.
5. We are unable to furnish you with response to this questions.
6. Yes.
Ecuador
1. There have been no such cases. There is no legislation except for the general legislation already mentioned.
2. Yes, mainly in Spain where Ecuadoreans have recently been treated in an inhuman fashion and have been mistreated and denied entry upon arrival.
The same situation exists in Central America, countries through which Ecuadoreans have to transit to reach the United States.
3. No incidents of this type are known.
There are no enforcement measures.
4. This may happen when the worker is in an illegal situation. Legal protections are weakened precisely by the irregular situation of the foreign worker, who would be hampered in making any legal claims.
5. Yes, there are workers in Spain and the United States.
Causes: They are in the country illegally and do not possess proper documentation.
Consequences: They live in degrading circumstances. They are mistreated and have no job security. Illegal immigration is growing due to the attractiveness of cheap labor.
Such conditions are accepted because even the low wages they earn in the countries in question are higher that what they could earn in Ecuador.
6. Yes, in the Immigration Law – Article 37; Section 3 (Offenses, Penalties and Infringement).
Grenada
1. No (ii) Not applicable (iii) Judicial System
2. No.
3. No (ii) Not (iii): Judicial System
4. No.
5. Not known.
6. Yes.
Guatemala
1. In Guatemala there is no discrimination against migrant workers. Guatemala’s Constitution and Labor Code outlaw all forms of discrimination, as was explained in out response to question 17.
2. Irregular and undocumented Guatemalan migrant workers in the United States are paid less than US nationals are. Moreover, Guatemalan migrant workers do not enjoy the same employment opportunities as US nationals do, and have even been denied access to social services and deported to their country of origin often under degrading circumstances.
According to a 1996 study done in Mexico by Carlos Cáceres Ruiz under the title “Contractors and Documented Temporary Farm Workers: Guatemala and Mexico,” there is discrimination in Mexico, as can be seen in the working conditions of Guatemalan women in Chiapas. In 1992, there were 8,420 Guatemalan women working as migrant farm workers in Chiapas. All were documented, but they still were not paid the minimum wage set by the state of Chiapas. Promises made to then, such as adequate meals and transportation, went unfulfilled.
3. In Guatemala itself there have been no complaints filed concerning illegal migrant workers being treated differently than Guatemalan workers, or of forced labor or exploitation. Article 4 of the Constitution states: “ In Guatemala all human beings are free and equal in regard to their rights and human dignity. Men and women, whatever their marital status, enjoy equal opportunity and responsibility. Nobody is to be subjected to slavery or to any other condition that impinges on human dignity…”
Work is a right recognized by the Constitution and the right to freely choose one’s livelihood is a basic social right underpinning labor law. On 10 November 1959, Guatemala ratified International Labor Convention No. 105 of the International Labor Organization on the Abolition of Forced Labor. Thus, illegal migrant workers have the right to equal opportunity in offering their services.
The Labor Inspection Office of the Ministry of Labor and Social Welfare is in charge of overseeing compliance with labor law. It does so through a body of Labor Inspectors, who undertake legal proceeding against employers before the Labor and Social Welfare Courts when uncovering a violation of labor regulations.
4. Guatemalan labor law protects the constitutional and inalienable rights of workers. Thus migrant workers have the right to the work benefits provided for under the Labor Code. The Ministry of Labor and Social Welfare has never registered a documented complaint or verified lack of compliance with minimum wage scales in the case of migrant workers.
5. See answers to questions 1 an2 of xenophobia. 6. Article 80 of the Law on Migration and Immigration states: Without precluding the application of sanctions provided for by labor law, employers who hire foreigners without following the laws of the country shall be punished according to the provisions of paragraph 3 of Article 72 of the Law on Migration. Article 72 of that law states:
Without precluding other penalties provided for in this law, the law of the land and international conventions, any violation of this law and associated regulations shall result in the following penalties:
1. For foreigners:
a. A fine of from 50 to 1,000 quetzals.
b. Expulsion from the country.
2. For civil servants, Immigration authorities and other State employees:
a. Verbal or written warning, as appropriate.
b. Suspension for up to 30 days.
c. Loss of employment.
3. For all Guatemalan nationals not included in the preceding section:A fine of from 25 to 500 quetzals.
Honduras
1. No.
2. Discrimination against Honduran workers in other countries, such as the United States, takes the following forms:
Unfair competition
Violation of human rights
Mistreatment at the hands of authorities and employers
Exploitation
Level of remuneration affected by their status as migrant workers
Work carried out without accrual of social security benefits
Inhuman working conditions
Violation of their rights as migrant workers
Violations of the Universal Declaration on Human Rights
3. No.
4. No.
5. In States of transit in general and specifically in Mexico, migrant workers must perform tasks for less than a survival wage as they make they way to the United States. Such exploitation occurs not only in States of transit, but also in the United States, where their rights as workers are violated and they perform the most arduous tasks for less than the minimum wage set under US labor law. Advantage is taken of their irregular situation and documentation, and they are often defined by a document that says “migrant” and not treated with the decency that any human being deserves.
6. Yes. The main task of the General Office on Population and Immigration Policy is to eradicate clandestine immigration and regularize the documentation of foreigners currently in an irregular situation.
Mexico
1. The government of Mexico can affirm that there has never been and today there is no racism, xenophobia or any other kind of discriminatory treatment of foreigners in our country.
The migration policy of the government of Mexico is based on the recognition that our country is a place of origin, destination and transit of major migratory movements. Mexican policy is thus consistent with the complexity of such flows and their structural underpinnings. Moreover, one of the main pillars of our policy is the commitment of all Mexican authorities to respect the human rights of migrants at all times.
Mexico has gained international recognition for its longstanding policy of offering refuge and asylum. Of note in this area is the implementation of the Migratory Stabilization Program undertaken in August 1996. This program granted Guatemalan refugees that had entered Mexico in the 1980’s the chance of formally immigrating if they intended to settle permanently in the country. They could thus acquire immigrant status and the associated right of applying for a Mexican naturalization card. The same program also gives Guatemalans who want to return their country the chance to regularize their situation in Mexico by acquiring non-immigrant status.
If any discriminatory practice were to occur, domestic legislation and international treaties are in place to punish it. Mexico has signed various international conventions, including the International Convention on the Elimination of All Forms of Racial Discrimination (in effect since 20 March 1975), the International Convention on the Prevention and Punishment of the Crime of Apartheid (in effect since 3 April 1980) and the International Convention on the Elimination of All Forms of Discrimination Against Women (in effect since 3 September 1981).
Moreover, any kind of discrimination against workers, be they migrants or not, is expressly prohibited by the provisions of Article 123, section VII, of the Constitution of the United Mexican States.
Article 123. Everyone has the right to dignified and socially useful employment. To this end and according to law, efforts will be made to promote the creation of jobs and the social organization of work. The National Congress, without contravening the following principles, shall pass labor legislation to regulate:
A. For workers, day laborers, employees, servants, artisans and in general for all employment contracts:
I…
VII. Equal pay for equal work, regardless of the sex or nationality of the person in question.
The Federal Labor Law goes on to stipulate that:
Article 56. Conditions attached to employment cannot be less than those set by this law. They must be proportionate to the service offered and include equal pay for equal work. No differences on the basis of race, nationality, sex, age, religious belief or political doctrine shall be established, except in ways expressly permitted by this Law.
It can thus be seen that migrant workers in Mexico are treated exactly as Mexican nationals are in regard to work.
Mexican legislation provides for sanctions for any violation of the labor rights of workers in general, including any discrimination that may be suffered at the hands of employers. Title XVI (Responsibilities and Sanctions) of the Federal Labor Law states:
Article 992. Any violation of labor regulations committed by employers or workers shall be punished in accordance with the provisions of this Title, independently of any responsibility they may have for failing to meet their obligations.
The amount of any fines established in this Title shall be calculated on the basis of the daily amount of the minimum wage in effect in the place and at the time that a violation occurs.
2. It is sad to note that Mexicans that have emigrated to the United States of America at times do suffer from xenophobic, racist and discriminatory acts at the hands of US authorities and various groups.
The National Human Rights Commission has studied and documented the situation of Mexican migrant workers in its “Report on Violations of the Human Rights of Mexican Migrant Workers as They Travel Toward the Northern Border, Cross It and Enter the Southern Border Zone of the United States.” This study covers the years from 1988 to 1990 and mentions progress made during the first half of 1991.
This was followed by the “Second Report on Violations of the Human Rights of Mexican Migrant Workers as They Travel Toward the Northern Border, Cross It and Enter the Southern Border Zone of the United States,” covering 1991 to 1993 and incorporating events of 1994.
3. As has been mentioned in other responses, in Mexico migrant workers are not in any way treated differently than Mexican workers. Moreover, working conditions are the same for both groups. For example, the length of the working day and wages must be the same for nationals and foreigners. In this regard, Article 123 of the Constitution, the true cornerstone the employer/employee relationship in Mexico, states in section VII that there must be “Equal pay for equal work, regardless of the sex or nationality of the person in question.” Complementing this, Article 56 of the Federal Labor Law stipulates that, “Conditions attached to employment cannot be less than those set by this law. They must be proportionate to the service offered and include equal pay for equal work. No differences on the basis of race, nationality, sex, age, religious belief or political doctrine shall be established, except in ways expressly permitted by this Law.”
If a migrant worker at any time were to feel that his/her rights were being violated because of nationality, he/she can bring the case before a Federal or State Conciliation and Arbitration Board, which are the competent bodies to hear labor disputes.
The situation of migrant farm workers is tied to respect for their human and labor rights. Mexico has a legal and institutional framework that recognizes those rights and oversees respect for them. Various institutions have roles in this system. On the labor side these include: The Federal Department of Labor and Social Welfare; the State Departments of Labor; and the State Conciliation and Arbitration Boards. Other bodies whose activities are not specifically labor-oriented, but that are responsible for related areas include the National Migration Institute, the Department of Health, the Department of Social Development and the Department of Education.
Mexico recognizes the right of migrants to have access to essential services such as health and education. And it also recognizes their right to other services, such as legal aid and the social services offered by various governmental offices in general.
In the main, it is the State that is responsible for these rights. However, it has been seen in practice that other actors also have roles to play. On many occasions the consulates of the countries of origin of migrant workers have effectively contributed to the conciliation and resolution of work-related disputes.
In recent years Mexico has made major strides in opening lines of communication with the two countries with which it shares borders. In 1986, the Mexico-Guatemala Binational Committee was created. Its Subcommittee on Migrant Affairs brings together institutions working in various aspects of this field in the two countries.
4. Both the Constitution and domestic legislation prohibit the hiring of migrant workers at less than the general minimum wage in effect in the geographic area in question. Nevertheless, there have been cases of irregular and undocumented migrants being paid less by employers taking advantage of their vulnerability.
The Federal Labor Code provides for stiff sanctions for such offenses.
Article 104. An employer of any industrial, agricultural, mining, commercial or service concern that pays one or more workers a quantity of money inferior to the general minimum wage, or that has provided a payment slip showing an amount of money superior to the amount actually paid, shall be punished by:
I. Six months to 3 years imprisonment and a fine of up to 50 times the general minimum wage, as provided for in Article 992, when unpaid wages do not exceed the amount of a month’s salary at the general minimum wage in effect in the geographic area in question.
II. Six months to 3 years imprisonment and a fine of up to 100 times the general minimum wage, as provided for in Article 992, when unpaid wages exceed the amount of a month’s salary at the general minimum wage in effect in the geographic area in question, but are less than the equivalent of 3 months of salary.
III. Six months to 4 years imprisonment and a fine of up to 200 times the general minimum wage, as provided for in Article 992, when unpaid wages exceed the equivalent of 3 months of salary at the general minimum wages in effect in the geographic area in question.
The above-mentioned fines shall be doubled for any repeat offense.
Moreover, payment of less than the legally stipulated minimum wage is defined as a criminal offense in Articles 386 and 387 of the Criminal Code, both for the Distrito Federal (DF) and the country as a whole.
Article 386. An individual who deceives another person or takes advantage of his deficient knowledge to illegally take possession of a thing or to make undue profit shall be guilty of fraud.
Fraud shall be punished by:
I. Three days to 6 months imprisonment or a 30 to 180 day fine, when the value of the fraudulent gain does not exceed 10 times the salary;
II. Six months to 3 years imprisonment and a fine of 10 to 100 times the salary, when the value of the fraudulent gain exceeds 10 times, but does not exceed 500 times the salary;
III. Three to 12 years imprisonment and up to 120 times the salary, when the value of the fraudulent gain exceeds 500 times the salary.
Article 387. The same penalties mentioned in the preceding article will be applied:
III…
XVII. To a person who takes advantage of the deficient knowledge or the tenuous economic situation of a worker in his/her employ to pay less than the legally stipulated amount for the work performed, or to demand receipts or proof of payment of any kind that vouch for a larger sum than was actually paid.
5. In the United States, Mexican migrant workers are often contracted under conditions different from those of nationals and for less than the minimum wage.
Examples of Mexican workers employed in the United States under worse conditions and lower wages than those applied to US nationals have come to light, including in the apple industry of Washington State and in the bee keeping industry of Maine.
6. The National Migration Institute (Secretaría de Gobernación) can impose administrative sanctions on employers that hire irregular or undocumented workers. Article 74 of the LGP states, “Work shall not be offered to foreigners who have not first proven that they are in the country legally and are authorized to work.” Article 140 of the same text states that any transgression is punishable by a fine that can be commuted for up to 36 hours of administrative detention.
The Federal Work Inspection Office has competence in this area. When carrying out any general inspection, they will also check to see if any foreigners are in the employ of the company being inspected. If there are, the owner or his representative is asked to produce the migration forms that shows that the workers are in the country legally and are authorized to work.
The inspector will note in his report whether or not he was shown the documents requested. If documents are presented, he will take note of the kind of documentation shown him.
The inspector will also check to see that all provisions on foreign workers stipulated in the Federal Labor Code are being met.
The next stage is analysis and qualification of the inspection report. The Federal Work Inspection Office and the Federal Labor Delegations, without making any assumption on the legality or validity of the documents presented to the inspector, officially notify the National Migration Institute. They inform it of the existence of any foreign workers and attach a copy of the pertinent report. The National Migration Institute will then decide if it should take any action within its sphere of competence.
If any potential violation of the provisions of the Federal Labor Code on the hiring of foreigners is detected, the case will be passed on to the authorities legally responsible for sanctioning such behavior. That body will then undertake administrative proceedings against the employer within the framework of the Federal Labor Code, the Federal Law on Administrative Proceeding and the General Regulations for Inspection and Application of Sanctions for Violations of Labor Law, and apply sanction as appropriate.
Saint Lucia
1. Not applicable.
2. Not applicable.
3. Not applicable.
4. Not applicable.
5. Not applicable.
6. Immigration Ordinance Act 2,5000.00 penalty.
Trinidad and Tobago
1. There is no discrimination against immigrant workers in this country.
2. There is no discrimination against emigrant workers from this country in the countries of employment.
3. There are no cases of illegal immigrant workers who have less favourable working conditions than those of our citizens and those persons are not exploited nor perform forced labour. There are mechanisms and procedures to ensure that such situations do not occur.
4. Not known.
5. Not known.
6. This country has inspection and penalties to prevent employers from hiring irregular migrant workers.
United States
1. Of the anti-discrimination laws mentioned in the answer to Question # 17 (1 about xenophobia), one specifically protects non US. citizens who are authorized to work --the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S. C. 1324b. The law was enacted in response to concerns that employers, faced with new employee verification procedures imposed by IRCA, would refuse to hire people who look or sound "foreign." The law prohibits citizenship status and national origin discrimination with respect to hiring, firing or referral or recruitment for a fee. The law also prohibits unfair documentary practices with respect to employment eligibility verification. All U.S. citizens, nationals and work‑authorized immigrants are protected from national origin discrimination and unfair documentary practices. U.S. citizens and nationals, permanent residents, asylees, refugees and temporary residents are protected from citizenship status discrimination. Employers that violate the law are subject to civil penalties (ranging from $110 to $11,200 per violation) and the payment of full back pay to victims.
The United States Department of Justice, Civil Rights Division, Of fice of Special Counsel for Immigration‑Related Unfair Employment Practices (OSC), investigates and prosecutes charges of immigration‑related unfair employment practices in an effort to ensure that work authorized individuals are not discriminated against by employers. Examples of cases brought by OSC include:
- An airline that refused to hire non‑citizens for pilot positions,
- Airlines that refused to hire asylees or refugees for airline attendant positions,
- A manufacturing corporation that refused to hire an applicant born in Puerto Rico because she was unable to present a green card,
- An electric power company that refused to hire an asylee because his work authorization contained a future expiration date,
- Companies that apply employment verification requirements more harshly on one ethnic group or on individuals perceived to be unauthorized aliens.
2. Please refer to response in 2 above of xenopbobia.
3. The Department of Labor is responsible for enforcing the nation's laws protecting workers from abusive labor conditions. These laws apply to both native and migrant workers, and both regular and irregular migrants. The issue of whether a worker is legally in this country is not a part of the Labor Department's mandate, and therefore, the DOL does not attempt to ascertain the immigration status of workers. Nonetheless, we do know that undocumented workers fill many low wage jobs in this country, and that many of these workers are too often employed in violation of labor standards. One of the primary criteria used by the DOL in targeting its enforcement resources is the presence of immigrant workers in the work force. For instance, the industries currently being targeted for examination by the DOL are residential health care, garment production, and agriculture all industries with a substantial percentage of immigrant workers.
The Department of Labor engages in a proactive, nationwide program of education and outreach combined with enforcement (including the imposition of sanctions and initiation of judicial proceedings), in an effort to educate both workers and employers as to their rights and obligations under the law.
4. Undocumented or irregular migrant workers are entitled to the same labor protections as U.S. nationals. Data by legal status are not available because the United States does not differentiate between documented and undocumented workers in our enforcement of minimum wage laws. In FY '98, the Department of Labor conducted over 18,000 investigations in the seven low wage industries targeted for enforcement emphasis (agriculture, garment manufacturing, restaurants, health care, hotels and motels, janitorial services, and guard services). These low wage industry investigations disclosed a total of $40,000,000 in unpaid wages owed to over 80,400 workers. Many businesses in the low wage industries are known to be heavily dependent upon undocumented workers.
5. It is unlikely that many American workers are employed in such conditions abroad. No specific information is available.
6. Under U.S. immigration and labor laws, there are significant legal and financial penalties for employers who knowingly hire illegal, or irregular, migrant workers. All new employees for any position within the United States are required by immigration and labor law to show valid proof of authorized employment in the United States. This is done through proper citizenship, legal alien, visa, or authorized employment identification. Employers are to complete and maintain on file a valid "I‑9" form for each individual employee certifying the employee's eligibility to work in the United States. The Immigration and Naturalization Service (INS) conducts inspections of employer records to determine whether an employer has complied with his or her obligation to verify that a job applicant may lawfully be employed. This inspection process is referred to as "employment eligibility verification." If the inspection reveals that an employer violated the INA, the INS has the authority to impose civil penalties or initiate criminal proceedings.
The Department of Labor also has a limited role in the employment eligibility verification process. When conducting a non‑complaint based investigation, DOL investigators conduct a concurrent review of an employer's records to determine whether the employer is complying with the employment eligibility verification requirements. The findings of these reviews are forwarded to INS for any appropriate further action. DOL does not conduct employment eligibility verification investigations when the investigation was initiated by a complaint.
Venezuela
1. No. There is no discrimination against foreigners in Venezuela, as can be seen from the pertinent legislation, which safeguards inhabitants of all nationalities. The Constitution of Venezuela provides for equality of rights and duties for nationals and foreigners, except for any limitations expressly made by the Constitution or legislation (Article 45). Thus there is no legal discrimination against foreign workers and they have the right to work and obtain a job that will give them a decent and dignified living in Venezuela.
Nevertheless, there are certain limitations on the right to work of foreigners, as we will now explain.
The Labor Law stipulates that in all companies, concerns, establishments and workplaces covered by the law, 90% of jobs shall be reserved for Venezuelans and 10% for foreigners in urban areas, with these figures changing to 80% and 20% respectively in rural areas (Article 27). The Ministry of Labor may grant temporary waivers to these rules for technical reasons (Article 28). The law also states that heads of industrial relations or personnel departments, captains of ships or airplanes, and foremen or their equivalent must be Venezuelan nationals.
2. No.
3. No. Venezuelan law provides for the equal treatment of national and foreign workers, except for certain exceptions stipulated by law. Article 26 of the Organic Labor Law states, “There shall be no work-related discrimination based on age, sex, race, marital status, religion, political belief or social condition…”.
Thus, an illegal migrant worker enjoys the same rights and duties as national and legal foreign workers in regard to wages and working conditions, as established in the Organic Labor Law and the Organic Law on Working Conditions and Work Environment. But illegal migrants do not enjoy social security, housing or unemployment benefits, and are not covered by the right to unionize.
Furthermore, Article 30 of the Law Adopting the Andean Labor Migration Instrument (Decision 116) states that member countries have the obligation to establish penalties for recruiters, middle-men and employers involved in the hiring of undocumented migrants once the instrument has entered into force.
Venezuela has not complied with that requirement, as it has not yet incorporated penalties into its domestic legislation. There are, however, sanctions that can be applied for other acts related to the hiring of illegal migrant workers. These include violations of industrial safety and health regulations and the wrongful hiring of women or children, which are covered by the Organic Labor Law. Corruption of minors, inducement to begging and other acts are covered by the Criminal Code.
The Labor Inspection Division of the Ministry of Labor makes regular visits to companies to check compliance with the law. The Labor Migration Office provides legal advice to both companies and migrant workers.
4. No. A look at current law shows that migrant workers, including undocumented and irregular migrants, enjoy the same work-related rights and duties as Venezuelan nationals, except for certain exceptions provided for by the Constitution and domestic legislation. Thus, a migrant worker cannot receive a wage inferior to that established by the Executive. Equal treatment is provided for by Article 10 of the Organic Labor Law, which states: “The provisions of this law are in the public domain and applicable nationally. They shall apply to Venezuelans and foreigners for work done or contracted in the country and cannot be renounced or modified by agreement between private parties…”
5. We have no knowledge of this.
6. Article 30 of the Law Adopting the Andean Labor Migration Instrument (Decision 116) states that member countries have the obligation to establish penalties for recruiters, middle-men and employers involved in the hiring of undocumented migrants once the instrument has entered into force.
Venezuela has not yet complied with that requirement, as it has not yet incorporated penalties into its domestic legislation. There are, however, sanctions that can be applied for other acts related to the hiring of illegal migrant workers. These include violations of industrial safety and health regulations and the wrongful hiring of women or children, which are covered by the Organic Labor Law. Corruption of minors, inducement to begging and other acts are covered by the Criminal Code.
The Draft Organic Law on Migration and Regularization of Foreigners currently being studied by the Ministry of Justice and other ministries includes an article (currently No. 44) that states: “Any employer that hires illegal foreigners to work for him shall be fined the equivalent of 80 tax units.”
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3. Ilegal traffic of migrant workers
1. Are there private agencies or individuals working in your country engaged in hiring migrant workers for forwarding to other countries? If so, are there any laws regulating such agencies or individuals? Could you describe those laws?
2. Do you know if there is any illegal or clandestine traffic of irregular migrant workers in your country, either by individuals, corporations or national or foreign organizations that conduct such activities? If so, how did these persons or organizations work to develop the illegal or clandestine traffic of migrant workers?
3. Has your country taken measures to prevent, eliminate or punish legally (civil or criminal) any persons, organizations or companies that organize, assist, participate or work in the illegal or clandestine traffic of migrant workers? If so, could you describe what these measures or penalties consist of? Could you reveal any court or administrative proceedings carried out for this purpose?
Brazil
1. There are no data on the subject, nor any laws governing it. What is known, according to complaints received, is that the operation of these agencies is always monitored. Until very recently, the practice of recruiting workers to send them to other countries was not common in Brazil. However, with the increased flow of Brazilians to Japan, several agencies sprang up to establish contact between migrant workers and the Japanese agency responsible for placing them in that country’s labor market.
2. There have been numerous complaints in Brazil in the media, including television, concerning exploitation of immigrant workers (illegal aliens), generally by their own bosses. They are often threatened with being turned over to the Federal Police to be deported. This is the case, for example, of the Chinese and Bolivian workers in clothing factories in Sao Paulo. However, the amnesty was approved by the government in order to permit these people to legalize their immigration status and escape this type of exploitation.
3. The Law Governing Foreigners, in Article 125, Section VII, provides that it is against the law to hire or use the services of an illegal alien or one who is precluded from engaging in gainful employment. The penalty is a fine, and if the violator is an alien, expulsion. The same article, in section XII, provides that it is a crime to smuggle in an alien or hide one. The penalty is prison for one to three years, and if the violator is an alien, expulsion.
Canada
1. Yes. Recruitment agencies exist which are sometimes recruiting staff for position outside Canada.
If so, are there any laws regulating such agencies or individuals? Could you describe those laws?
All federal and provincial labour laws as well as other applicable Canadian and provincial Human Rights Acts will apply to these agencies and individuals.
2. Migrant smuggling rings (mostly involving movement of migrants into the United States) are uncovered from time to time. Release of information concerning the working methods of such criminal organizations could prejudice law enforcement activity.
3. Recognizing the need to deter alien smuggling or complicity in alien smuggling activity Canada has made such activities offenses punishable by imprisonment and/or fines (sections 94.1, 94.2, and 94.4 of the Immigration Act).
Sections 94.1, 94.2, and 94.4 are set out below:
94.1 Organizing Entry into Canada - Every person who knowingly organizes, induces, aids or abets or attempts to organize, induce, aid or abet the coming into Canada of a person who is not in possession of a valid and subsisting visa, passport or travel document where one is required by this Act or the regulations is guilty of an offence and liable
(a) on conviction on indictment, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding five years, or to both; or
(b) on summary conviction, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding one year, or to both.
94.2 Idem - Every person who knowingly organizes, induces, aids or abets or attempts to organize, induce aid or abet the coming into Canada of a group of ten or more persons who are not in possession of valid and subsisting visas, passports or travel documents where such visas, passports or travel documents are required by the Act of the regulations is guilty of an offence and is liable on conviction on indictment to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding ten years, or to both.
94.4 Disembarking of Persons at Sea - Every person who, being the master or a member of the crew of a vehicle used for transportation by sea, disembarks or allows the disembarkation of, or attempts to allow the disembarkation of, a person or group of persons to come into Canada in contravention of this Act or the regulation is guilty of an offence and is liable on conviction or indictment to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding ten years, or to both.
It should be noted that although it is common to speak of aiding and abetting, the two concepts are not the same and either activity constitutes a sufficient basis for liability. Abetting is defined as instigating, promoting or procuring a crime to be committed, while aiding means assisting or helping without the necessarily encouraging or instigating the act.
The Immigration Act also provides for the seizure of a vehicle used in connection with the commission of an offence under sections 94.1, 94.2 or 94.4 (subsection 102.01(1) of the Immigration Act). There is also provision for the seizure of anything that will afford evidence of an offence committed under sections 94.1, 94.2 or 94.4 (subsection 102.01(1) of the Immigration Act).
Subsections 102.01 (1) and (2) are set out below:
102.01(1) Seizure of Vehicle - An immigration officer or a peace officer may, where the officer believes on reasonable grounds that a vehicle was used in any manner in connection with the commission of an offence under section 94.1, 94.2 or 94.4, seize the vehicle as forfeit.
102.01(2) Seizure of Evidence - An immigration officer or a peace officer may, where the officer believed on reasonable grounds that an offence has been committed under section 94.1, 94.2 or 94.4, seize any thing that the office believes on reasonable grounds will afford evidence in respect of the contravention.
In terms of more general provisions, paragraph 94(1) (m) of the Immigration Act provides that every person is guilty of an offence who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene any provision of the Act or regulations. Every person who is guilty of an offence under subsection 94(1) is liable on conviction on indictment to a fine not exceeding five thousand dollars or to imprisonment for a term of not exceeding two years or to both, or on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or both (Subsection 94(2) of the Immigration Act).
It should be noted that given these provisions in the Immigration Act, the Criminal Code of Canada does not contain any provisions dealing with trafficking or smuggling of aliens. Canada is currently an active participant in negotiations for an Optional Protocol on Migrant Smuggling, supplementary to the Draft UN Convention on Transnational Organized Crime.
Colombia
1. According with the archives of the Administrative Departament of Security (Departamento Administrativo de Seguridad) -DAS- the existence of these kinds of agencies is unknown. The same was said by the Labour Ministery.
2. According to the DAS there are no such studies.
3. It was not answered.
Dominica
1. We are unable to furnish you with response to this question.
2. No.
3. No.
Ecuador
1. There have been cases in which these kind of agencies act illegally.
Regarding the legislation, in the Migrant Law, article 37, there are crimes, felonies and penalties; although it is considered to be soft and the justice administration system has made its application difficult.
1. Yes, there is illegal traffic.
They act recruiting poor people, who are aware that the situation is illegal but accept to be transported especially to the United States, in an illegal and subhuman way, paying great sums of money knowing that they can or cannot get to their destiny, or even die in the way, without caring, they get the required money getting in debt, selling what they have, to give to the migrant dealers, apparently they leave the country in a legal way, with all their papers in order, to go to the Centro American countries from where they go to the United States, their destiny, going through many irregularities and difficulties, like getting false visas.
The illegal migrant dealers are clandestine centers, well organized with contacts and properties in the transit countries.
3. There are general laws for the moment, not regulated and its consideration is based on the seriousness or on the particular situation in which it has been violated.
Grenada
1. No.
2. Not kown.
3. No.
Guatemala
1. Guatemalan legislation prohibits the exercise of private placement agencies, as stipulated in article 5 of the Government Agreement from December 23, 1957, relating to the creation of the Department of National Employment Service and the International Labor Convention, number 96 on "Agencias de Retribuidas de Colocación," ratified by Guatemala. Nevertheless, article 34 of the Labor Code regulates the role of a recruiting or business agent, cited in response number 15 to the present questionnaire.
2. We have a study titled "Trafficking of Migrants, Case Study: Guatemala," prepared by the General Directorate of Migration of Guatemala [Dirección General de Migración de Guatemala] and the International Migrant Organization, with the financial support of the Government of Canada, carried out in August 1998. The report established that a clear and unanimous definition with respect to the trafficking of migrants does not exist; in this particular instance, this phenomena was analyzed under the perspective and definitions used by the IMO, which involve four characteristics:
a. a trafficker or one who facilitates crossing the border.
b. the payment to a trafficker by the migrant or someone in their name.
c. this activity is illegal, or consists of various illegal acts in order to be fulfilled.
d. there exists the migrant's act of voluntarily resorting to the trafficker.
Under the previous context, Guatemala consists of a country of transit, destination, discharge and return of trafficked migrants. The problem is even more complicated in the case of Central American migrants who can come to Guatemala and remain there for a certain period of time in total conformity with migrant laws in force among Central American countries, but they subsequently become undocumented migrants in an irregular situation. A large part of them enter through contact with international networks or individual traffickers in order to reach their final destination.
Throughout the territory of Guatemala, a diversity of regional migrants and those from outside the region are trafficked, guided by organized traffickers, for the purpose of entering the United States, Canada and a lesser number to Mexico. A large quantity of migrants that opt for illegal visas are involved with organizations or individual traffickers who offer them entry to their countries of destination in an irregular/undocumented manner for a fee. Additionally, the trafficking problem is tied to other crimes, such as drug trafficking and prostitution, which can seriously compromise the rights and dignity of the trafficked migrants, to the extent of risking their own lives.
3. The same factors that complicate attempts to detain migrants arise regarding the detention of the traffickers. As part of the policy enforced by the State of Guatemala through the General Directorate of Migration [Dirección General de Migración], there is coordination from the National Civil Police, with whom they share information which permits the neutralization of migrant trafficking activities. The level of specialization reached by the organizations and individuals that participate in this form of trafficking, and the insufficient resources on the part of the government authorities, especially with respect to the data base which provides timely information, together with the fact that the migrants will not identify the traffickers, makes it almost impossible to detain them and identify their characteristics.
Another important aspect worth mentioning is that within the legal framework of the State of Guatemala, the Code on Criminal Procedure as well as the Law of Migration and Foreigners [Ley de Migración y Extranjería], the trafficking of migrants is not typified as a crime. Nevertheless, a new law of migration is under study by the Congress of the Republic, a law which was structured in order to offer substantial juridical support to combat the trafficking of undocumented persons. The lack of such legislation prevents the sanction or detention of those persons identified as traffickers of migrants. Additionally, in the case of trafficking foreigners, expulsion is exercised only when it is proven that the person in the particular case did not comply with the existing norms within the Law of Migration and Foreigners [Ley de Migración y Extranjería].
The Law of Migration and Foreigners [Ley de Migración y Extranjería] establishes two manners for exercising the control of entry of migrants: turning them away at the border and expulsion. Additionally, the use of false documents and entry through facilitators' posts are sanctioned through the cancellation of their status as migrants, payment of a fine and the expulsion to their national territory.
In general, noncompliance with whichever norm established in the Law of Migration and Foreigners [Ley de Migración y Extranjería] will be sanctioned against the foreigner through the cancellation of their status, payment of a fine and expulsion. In the case of a national, pecuniary punishments are imposed, and, in the case of an agent or official, the punishment is a verbal or written admonition, suspension of their post and destitution. Companies and businesses which transport migrants by airplanes, boats or across rivers, which carry migrants who do not have the current migrant documentation in force, who facilitate their crossing should pay fines from 500 to 1000 quetzales (approximately US$85 to $170) without prejudice to the non admittance of the foreigner and the business' obligation to return the foreigner to their place of origin. The resolutions of the Directorate of Migrations may be challenged by the remedies provided in the law for Contetious Administrative Proceedings (Ley de lo Contencioso Administrativo( these remedies are (Recurso de Revocatoria, Recurso de Reposición, y Recurso de Aclaración y Ampliación.
In Guatemala, migrant authorities are faced with the serious problem of having the law complied with, which is tied to the lack of resources of all types (technological, human, capacity, etc.), which includes the inability to make use of the necessary number of functionaries for the purpose of providing adequate control and supervision of migration investigations.
Honduras
1. There are no private or governmental agencies. With respect to individuals, there are the so-called “coyotes” who guide them to the United States, and many of them make agreements to take them to centers of work in parts of the United States.
2. There are networks of traffickers of persons, commonly called “coyotes,” which, for considerable sums of money, take them to a destination (most commonly the United States).
3. Yes. In 1994, the State of Honduras was one of the first countries in the Central American region to criminalize the trafficking of persons, having reformed Article 195 of the Criminal Code by means of Legislative Decree Nº 120-94, which has been applied as a corrective measure against various foreigners and nationals engaged in this illicit work.
Mexico
1. In Mexico there exist some private or particular agencies dedicated to the recruitment of migrant workers. Nevertheless, the Secretariat of Labor and Social Security [Secretaría del Trabajo y Previsión Social], through the General Director of Employment, is the agency of the Federal Government which regularly conducts such recruitment, the grounds for which are found within the Federal Labor Law.
Article 135 of the Regulation of the General Population Law [Reglamento de la Ley General de Población] establishes that "collective contracting agencies for the migration of Mexican workers can only be established in a country previously authorized by the Secretariat, without prejudice to the compliance with that established through other applicable legal ordinances."
2. On some occasions, Mexican authorities have detected prosecutors as well as groups and organizations that are dedicated to the illegal trafficking of migrant workers, especially at the southern border of Mexico. These people or groups generally operate through clandestine offices that advertise through various means of communication, such as the local daily newspapers, and through their own undocumented migrant workers. Unfortunately, when those persons find out that the authorities have detected them, they quickly disappear.
From Mexico to the United State, particular individuals who traffic migrants are known as "polleros" or "coyotes," and they are the ones from which the migrants have to solicit services in exchange for payment in order successfully cross the border into the United States as a result of the actual policies of North American immigration that have caused migrants to attempt to cross the border through risky places.
Based on the testimonies received by the National Commission for Human Rights, evidence has been collected concerning the manner in which they operate:
- The migrants can be contacted by the "polleros" from their point of origin or bordering States.
- They are able to get the migrants across the border at locations close to urban areas or far from them.
- The "polleros" are near the point of being drugged when they cross the border, they make the migrants cross at different stages. Some migrants will be taken to a certain point where others pick them up. They agree to a price which must be paid in advance and subsequently the traffickers rob the migrants, stealing everything they brought with them to take across the border.
- When they cross the river, the desert or the mountains, and as they generally travel in groups, individuals who physically do not have the strength to cross are abandoned on the road by the traffickers. This places the physical integrity and lives of the migrants at risk.
- In other cases, they offer them false papers in exchange for a certain price; in these types of arrangments they are sometimes accompanied and in other cases they let them cross alone.
For example, some organizations discovered, through different means of communication, the illegal trafficking and exploitation of deaf persons during July 1997. These deaf individuals were tricked when they were offered a trip to the United States and were later forced to sell trinkets in the streets of Chicago, New York, Los Angeles and other cities within the country in exchange for miserable wages and terrible living conditions.
The trafficker instructs the undocumented persons not to bring charges against them if they should be detained. This makes it even more difficult to provide facts against them.
Undocumented persons, when they are detained for the first time, do not make accusations against the "pollero," be it for reasons of being afraid of losing their contact which helps them with their subsequent attempts to gain entry or for fear of being assaulted or attacked by them when they try to return to Mexico. Additionally, when they are detained in the process of illegally crossing, the proof gathered against the trafficker is usually weak and consequently the fine or sanction that could be applied against them for violating that established in article 138 of the General Population Law [Ley General de Población] is significantly diminished.
3. The Government of Mexico has worked to enrich its migrant policies with concrete actions which express their humanitarian character. In that sense, reforms and additions were made to the General Population Law [Ley General de Población], the principle legal instrument in the area of migration (under the Political Constitution of the United States of Mexico), which grant the highest level of protection to the human rights of migrants, gives the highest juridical security within the processing of migration proceedings, favor family integration, and strictly combat the crimes tied to the trafficking of human beings.
Within the framework of these reforms are included one concerning the sanctioning of the acts related to the trafficking of undocumented persons. The crime of trafficking of persons was originally sanctioned with a sentence of 2 to 10 years in prison; in reality, the penalty for this crime is 6 to 12 years of prison without parole since it is considered a serious crime. Additionally, the reform contemplates a serious punishment (9 to 18 years of prison) for those who participate in the commission of the crime and are public servants, and when they put the life and health of the migrants at risk or they involve minors. Furthermore, the crime of trafficking of persons was included in the Federal Law against Organized Crime [Ley Federal contra la Delincuencia Organizada].
On the other hand, Mexico has promoted the Regional Conference on Migration [Conferencia Regional sobre Migración], also known as Grupo Puebla, which brings together the vice ministers of the governments of Canada, the United States, Central America and Mexico. To date, three regional conferences have taken place; the First Regional Conference on Migration took place March 1996, in Puebla, Mexico; the Second took place March 1997, in Panama; and the Third recently took place February 1998, in Ottawa, Canada. In relation to the topic of this Report, within the Plan of Action suggested in the Second Conference, one of the principle objectives raised was to carry out activities for the purpose of preventing and combating the trafficking of migrants. As a result, the Seminar on the Trafficking of Migrants was held in Managua, Nicaragua, in January 1998. During this seminar, agreements originated such as that of including the crime of trafficking of migrants within the criminal legislation of all the countries of the region (not applicable to Mexico because this crime is already typified); institutionalizing the regional mechanism of the regular exchange of information concerning activities linked to the crime of trafficking persons, and promoting international cooperation through technical and financial assistance among the countries of the region.
Saint Lucia
1. Not applicable.
2. Not applicable.
3. Arrest and deport offender back to country.
Trinidad and Tobago
1. There are private agencies and individuals in this country engaged in hiring migrant workers for forwarding to other countries. There are laws regulating such agencies and individuals.
2. There is no illegal nor clandestine traffic of irregular migrant workers in this country.
3. Not applicable.
United States
1. Yes, there are private agencies and individuals involved in hiring migrant workers in the United States for work in other countries. Aforementioned immigration and labor laws govern situations within the United States. As stated previously, the United States does not monitor or regulate out‑migration.
2. Owing to the nature and availability of agricultural work in the United States, the Immigration and Naturalization Service has uncovered numerous schemes by unscrupulous employers to use illegal, or irregular, migrant workers to their benefit. Moreover, undocumented workers are attracted to agricultural work because of relatively low skill requirements and remote rural locations.
Nearly every day, U.S. Immigration investigators uncover organized illegal migrant trafficking schemes in all parts of the United States. Individuals and organizations carry out organized migrant trafficking. Recruitment of illegal migrant participants is often done by other illegal migrants within their U.S. or foreign communities. Some organized migrant smuggling units even advertise their services in foreign countries.
3. The United States is always actively involved in preventing illegal migration of all types. Extensive use is made of the wide variety of legal tools available to combat illegal migrant trafficking. Some specific criminal charges that invoke significant financial and legal penalties are: Bringing/Harboring certain aliens for financial gain (8 USC 1324), and Aiding/Assisting certain aliens for financial gain (8 USC 1320. In addition, often some general criminal violations are charged to increase the possible penalties. These include Aiding and abetting (18 USC 2), Accessory after the fact (18 USC 3), Concealment (18 USC I, Conspiracy (18 USC 371), and a variety of other criminal violations depending on the situation. The United States actively pursues alien smugglers and employers who knowingly hire undocumented workers, and both are subject to a variety of criminal or civil penalties under U.S. law. Any person convicted of alien smuggling can be fined, imprisoned from five to 20 years, or, when the smuggling results in death, be sentenced to capital punishment or a life sentence. In December 1998, the United States broke up the largest alien smuggling operation in U.S. history, arresting and indicting more than 20 people. Their prosecution continues.
Venezuela
1. There are no private agencies or individuals engages in the recruitment of migrant workers workers to be sent to other states.
Regarding private agencies that locate people, there is no internal law that regulates it, except for the Organic Labor Law. Nonetheless, the “Ley Aprobatoria del Instrumento Andino de Migracion Laboral” establishes penalties for the recruiters and intermediaries of illegal immigrant workers and for Venezuelan employers.
1. The National Government has no knowledge of networks dedicated to the illegal or clandestine trafficking of migrant workers in an irregular way. Although it is true that these kind of situations have existed in the past, these kind of irregularities did not occur on a large scale and today the irregular workers enter the country by their own means.
2. The Venezuelan State, through the “Instrumento Andino de Migracion Laboral (Decision 116)” has committed itself to establish sanctions, in order to prevent, eliminate and/or legally punish those people and organizations that operate in the illegal or clandestine trafficking of migrant workers; nonetheless, this committment has not yet been fulfilled because the corresponding penalties to these organizations have not been incorporated in the national legal system.
Nevertheless, there are penalties established in laws that are being studied, namely, the “Ley Organica de Migracion y Regulacion de Extranjeros”, article 45, and the “Ley Organica contra la Delicuencia Organizada” that in article 3(8,9 and 10) establishes: “The following offenses are considered as permaining to organized crimes: illicit trafficking of foreigners and the trafficking of person”. “Whoever illegally trafficks with foreigners who want to be admitted in Venezuela, violating rules or falsifying the admission documents established in the “Ley de Extranjeros y su Reglamento” or in the regulations that are issued by the Executive power, or obtain their entrance through promise of or payment or of any other profit for the public officer in charge, will be punished by a sentence between 4 to 6 years of prison”.
Currently, we only have the Criminal Code and the “Ley Organica de Salvaguarda del Patrimonio Publico.”
4. Violence, abuses against migrant workers
1. Have there been any cases in your country in the last ten years where immigrant workers or their family members have been the targets of violence, abuse or mistreatment, either by employers or other persons, groups or organizations? What are the inspection and penalty mechanisms to prevent and condemn such violence and abuse? How many court or administrative proceedings have been started for this reason? Could you discuss any?
2. Have there been any cases in your country in the last ten years of abuse of authority, violence, torture or death of immigrant workers and their family members as a consequence of the activities of the police or migration officials? Have any court or administrative proceedings been started or completed in this area, and what have the results been?
3. Do you have any background information on cases in which migrant workers from your country or members of their families have been the targets of violence, abuse, mistreatment, torture or death either by employers, groups or organizations, immigration police or other state employees in the countries of employment or transit? Could you give any cases?
Brazil
1. Answered in previous questions and in the next one. Even though there is no quantitative data it can be affirmed that nearly 50.000 foreigners will benefit by the recent amnesty decree, which process is still pending.
2. There is no information concerning this issue. Nevertheless, there have been complaints, although not very frequent, of exploitation from police officers who asked for money for not promoting deportation of clandestine agents.
3. There is no information on this issue.
a. Stay in the national territory after the authorized deadline stated by the federal police.
b. Practice against the Foreigners Law.
c. Commission of crimes, being the last a cause of expulsion.
Canada
1. Yes. Please refer to question 14, 17 and 21 for details on the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and the Canadian Labour Code. Under the Criminal Code of Canada, criminal acts will be prosecuted regardless of the status of the victim. No statistics are kept concerning the immigration status of victims of crime.
2. With regard to temporary workers such cases are not known.
3. Not known.
Colombia
1. The “Dirección Nacional de Atención y Trámite de quejas de la defensoría del pueblo” does not have in its files any register of cases or complaints filed by foreign illegal workers about violence, abuse or mistreatment, or that they received a less favorable treatment than national workers.
2. According to “DAS” and the “Defensoría del Pueblo”, there have been no cases.
3. Yes, there are records of violence, abuse, mistreatment, torture and/or death of Colombian workers. Nevertheless it is not easy to mention particular cases in this kind of interrogation.
Dominica
1. No.
2. We are unable to furnish you with responses to this questions.
3. No.
Ecuador
1. There have not been any similar cases as described in the question.
2. There is not.
3. Yes there have been abuse, violence and mistreatment cases, in transit countries, in which Ecuadorian immigrants have been detained my the Migratory Police and incomunicated for long periods and then deported.
Grenada
1. No (ii) nothing (iii) the Judicial System (iv) Nothing
2. No (ii) Nothing (iii) Not applicable.
3. Nothing.
Guatemala
1. The competent authorities do not poses a record for these kind of cases. Nevertheless, when one of these situations arises, it is the Inspection of Labor [Inspección de Trabajo], subject to the Ministry of Labor and Social Services, which is competent to verify these types of facts, starting with making a complaint against the employer before the respective labor and social service judges in order to iniciate the corresponding judicial punishment.
2. Statistical records concerning these issues are not available.
3. The consulting bodies (Public Ministry, Ombudsman for Human Rights and Judicial branch) indicated that they do not have a record concerning a situation of this type. The Ministry of Labor and Social Security also does not poses official information concerning some of the extremes expressed in this question.
Honduras
1. As in every part of the world, many times immigrant’s rights are violated by some persons, enterprises or authorities; in Honduras the “Direccion General de poblacion y Politica Migratoria” has no case in file, but information about this matter can be requested to the “Comisionado Nacional para los Derechos Humanos” in Honduras or to the “Fiscalia de Proteccion de los Derechos Humanos “ dependant of the “Ministerio Publico.”
2. No.
3. The “Direccion General de Poblacion y Policia Migratoria” has not registered specific cases, but the fourth statistic analysis about deported hondurians from the United States, shows that 12.26% of the people deported between january, 1997 and february 28, 1998 complained about mistreatment, abuse and violence in the capture and transportation to the prisons.
More information regarding violation of the immigrants rights, can be requested to the “Casa del Migrante” in Tijuana, Mexico, where there are thousands of registered and documented cases under the name of “Testimonios de violacion a los Derechos Humanos de los Migrantes.”
México
1. The acts of abuses, violations or maltreatment committed against any person constitute illicit acts which are typified as crimes in the existing Penal Code and within each of the Federal Entities, according to which if an immigrant worker or their family members receive this form of treatment from their employer, group or any other person, they have the ability to turn to the Prosecutor General of the State, in which the illicit act was committed, in order to demand the punishment of the accused. They can also demand the corresponding reparations for damages, which originated in the commission of the crime, owed to them.
The National Commission of Human Rights worked on the Report on the Violation of Human Rights of Immigrants, Frontera Sur, published in 1996 and reprinted in 1997, in which the situation concerning immigrants that enter through the southern border of Mexico was analyzed. The Report also directed suggestions to a number of authorities to make the protection of the fundamental rights of immigrants within their jurisdiction more efficient, without giving importance to their status as migrants. To this date, many of the suggestions have been attended to.
2. Of the total complaints received by the National Commission of Human Rights, there have been some in which complainants have been migrants --not necessarily a migrant worker--, and the following types of facts, presumably violations of human rights, have been generated:
- irregular condition of security,
- request for penitentiary transfer,
- request for early release,
- arbitrary arrest,
- false accusations,
- abuse by authorities,
- unjust charge of contributions and taxes,
- torture,
- violations of due process of law,
- violation of the rights of the imprisoned,
- intimidation,
- delay in the prosecution of cases,
- nonconformity with administrative resolutions,
- robbery,
- procedural delays,
- deportation,
- crime of violation,
- extortion,
- homicide,
- undue holding of personal property
- denial of regulating the status of migrant,
- left in a state of incommunicado,
- bribery,
- request for medical attention,
- denial of justice,
- denial of right to petition,
- request for amnesty,
- injuries,
- nonconformity with sentences, findings or resolutions,
- violations of the right to freedom of expression, and
- medical negligence.
Because of the frequency with which these violations are brought to our attention, it is impossible to precisely say how many there are. One must also take into consideration the vulnerability of these migrant workers, and the fact that the violations they are the victims of are not always reported or, if they are reported, there are times when the proceedings are interrupted, be they administrative, civil or criminal. Such proceedings are interrupted due to the fact that the migrants are in a particular place for only a temporary period of time, which makes it difficult to locate them once they have moved.
One of the positive aspects for when there has been a violation of human rights against migrant workers is the ability to make a complaint. The cases reported by government offices do not always contain the total number of such cases; nevertheless, it permits the state to appreciate and determine the issues that it can begin to handle and fight against. Furthermore, in accordance with the competence of the National Commission of Human Rights, mechanisms for the promotion, diffusion, protection and proposals from the Mexican Government can be identified and established with respect to giving the greatest amount of attention to this problem.
From January to December, 1997, 56 complaints were filed before the National Commission in which the persons injured were nationals of this country or from Central and South American countries. These victims also alleged human rights violations committed by Mexican authorities, causing injury to Central and South American citizens who entered national territory undocumented or, even though they applied for it, their status as migrants was not regularized; of these, 25 resulted in facts that this National Organization was unable to recognize in accordance with the authority established in their regulations.
In the case of a violation of human rights, the person who makes the complaint at no moment goes unprotected due to the fact that the complaint can be brought by anyone, not necessarily the victim, through whichever means, even by phone, 24 hours a day, 365 days a year. Additionally, in emergency situations, the cases receive immediate attention from the employees of the National Commission.
When a complaint is presented concerning a human rights violation against an individual or when it is opened by the National Commission, at its own initiative, an investigation of the facts that motivated the case is carried out and a resolution with respect to the same is produced, which in accordance with the law could result in a Recommendation, a document of "No Responsibility," or in a complaint by means of settlement or solution procedures during the necessary proceedings, in addition to the procedures established in article 123 of the Regulations of the National Commission.
3. There is knowledge of the abuses and maltreatment committed against Mexican workers in the United States of America, as well as in particular cases within the apple industry in the State of Washington, and in the avocado industry in the State of Maine, both within the United States.
Saint Lucia
1. Not applicable.
2. Not applicable.
3. Not applicable.
Trinidad and Tobago
1. There have been no cases in this country in the last ten years where immigrant workers or their family members had been targets of violence, abuse or mistreatment, neither by employers nor other persons, groups or organizations.
2. There have been no cases in this country in the last ten years of abuse of authority, violence, torture or death of immigrant workers nor their family members as a consequence of the activities of the police or immigrant officials.
3. Not known.
United States
1. Yes, unfortunately, cases involving serious abuse of migrant workers do occur. These cases, as noted above (#17), may take many forms. Organized hate groups that may be involved in such acts include Neo‑Nazi Skinheads, the Aryan Nation, the Ku Klux Klan, various militias, the National Alliance, and the White Aryan Resistance. Employers and smuggling operations may also be involved in such cases. When investigations uncover such abuse, federal agencies vigorously pursue efforts to bring the offending party to justice and to make the victim(s) whole. INS involvement is mostly limited to undocumented illegal workers. Unscrupulous employers have engaged undocumented workers for the period of time necessary to harvest their crop. They then contact the INS to report that there are people working without authorization to avoid paying migrant salaries.
Federal statutes criminalize various forms of worker exploitation: Involuntary Servitude and other federal criminal civil rights violations; Collection of Extension of Credit by Extortionate Means; Alien Smuggling or Harboring; Fair Labor Standards Act violations; and Seasonal Worker Protection Act violations. Trial lawyers from the Criminal Section of the Civil Rights Division and the various United States Attorneys' Offices routinely prosecute these matters. While we do not have specific figures on the number of court or administrative proceedings that have been initiated because of these sorts of abuses, the following examples indicate the kinds of abuses that have been uncovered and pursued:
- In 1995, federal authorities investigated and prosecuted a matter involving the smuggling of over 70 Thai women and men into the United States who were enslaved In El Monte, California for up to seven years. These individuals were held in a guarded compound and forced to work. The sweatshop owners were prosecuted for violations of Involuntary Servitude, Conspiracy, and Immigration laws.
- In 1997, three men serving as crew leaders at a labor camp in South Carolina pled guilty to recruiting and forcing migrant laborers to work against their will. The leaders of this enterprise pled guilty to a number of Civil Rights, Extortion, Immigration and Labor charges, and were sentenced to 15 years incarceration.
- In May of 1997, after an extensive investigation conducted jointly with the DOJ/1NS, Miguel Angel Floresplead guilty in South Carolina to 1 count of conspiracy, 7 counts of smuggling undocumented aliens, 6 counts of indentured servitude, 6 counts of extortion, and 2 counts of violating labor statutes. Mr. Flores received a significant prison sentence for his criminal misconduct. Subsequently, several of his co‑conspirators were also found guilty of criminal offenses and sentenced to prison. In another case, again following a joint DOL‑DOJ/INS investigation, 3 men were convicted on charges of conspiracy, smuggling and harboring undocumented workers, and violating labor law protections. The 3 men, Ricardo Correa, Ramiro Garcia‑Hernandez, and Silvano Garcia‑Hernandez, recruited the workers at the Mexican border, and drove the workers to the State of Idaho to work for them.
- In 1998, 18 defendants pled guilty to slavery conspiracy charges based on a scheme in which they held dozens of hearing impaired Mexican nationals in slavery, forcing them to peddle trinkets on the streets of New York, Los Angeles, and Chicago. The ringleader of this conspiracy was sentenced to serve 14 years incarceration and, along with her co‑defendants, was ordered to pay over $2.5 million in restitution.
2. Other similar examples exist of federal criminal civil rights and labor standards investigations uncovering serious abuses and leading to criminal prosecutions and convictions.
The U.S. Department of Justice has prosecuted matters involving the use of excessive force by law enforcement officers against migrant worker, and other undocumented, victims. For example, in 1998, five former United States Marine Corps Military Police officers pled guilty to civil rights conspiracy and conspiracy to commit false statements charges for their role in the beating of migrant farm workers after an extensive federal investigation. On August 1, 1994, the defendants, armed United States Marine Military Police SWAT Team members, attacked a migrant farm worker settlement in close proximity to Camp Pendleton, California. During the attack, an elderly Mexican worker was thrown to the ground, handcuffed and beaten unconscious. The wife of another worker was thrown to the ground when she attempted to assist her husband. The Criminal Section of the Civil Rights Division, and United States Attomey's Office in San Diego, prosecuted this and a related matter in which a co‑defendant, another former Marine M.P., was convicted after trial of his role in the beating. In addition, please see responses to questions #17 and #30.
On November 20, 1994 the United States ratified (thereby bringing into full force within the U.S.) the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
3. Please refer to response in #18 above (2 about xenophobia)
Venezuela
1. No. The National Constitution of Venezuela (Chapter III, art. 60) states individual rights in equal conditions for national and foreigners, which should be protected by the competent authorities, in order to avoid and condemn violent acts and abuses against nationals and foreigners.
2. No. There are no statistics or numbers that indicate authorities’ abuses, violence, torture and/or death of immigrant workers or their family members in Venezuela.
3. No.
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5. Massive Expulsion, proceeding of expulsion
1. Can any determined group of immigrant workers and their family members be expelled as a group from your country?
2. What is the competent authority to determine whether an immigrant worker and members of his family can be expelled from your country? Is it the same authority for both regular and irregular immigrant workers?
a) Can an immigrant worker and his family members who are expelled from your country go to a country other than his country of origin?
b) What is the administrative or court procedure to expel an immigrant worker and his family members from your country? Are there different procedures for regular immigrant workers and irregular immigrant workers?
c) Do both regular and irregular immigrant workers have court remedies to apply for or seek a review of the measure? If so, could you indicate what these actions are and describe them?
d) When such a review is pending, is the immigrant worker expelled or can he remain in your country until the review is finally resolved?
e) In what language are immigrant workers informed of the decisions of administrative or court authorities?
3. If an immigrant worker and his family members are expelled under the terms of a resolution from an administrative authority and the resolution is later nullified, does that person have a right to any compensation? If so, can you describe the procedure followed to obtain such compensation?
4. After an expulsion resolution is issued, how much time is given to the immigrant worker and his family members to leave the country? What information is taken into account to determine how much time they have before they must leave your country?
5. If an immigrant worker is expelled or deported, whether he is regular or irregular, what happens to any pending matters related to him, an example being any wages owed to him?
Brazil
1. To determine the expulsion of an alien who is lawfully or unlawfully in the country. It is applied to an alien who in any manner poses a threat to national security, political or social order, public morals or the national economy, or whose actions are contrary to the national interest. It is also applied to those who used fraud to enter or remain in Brazil, or who entered the national territory in violation of the law, if they have not left within the prescribed time and their deportation is not desirable; and to those who are engaged in vagrancy or begging or disregard the prohibition established expressly in the Law Governing Foreigners (Article 66 of Law No. 6,815/80, as amended by Law No. 6,965 of December 1981).
a. Yes. Expulsion is the compulsory removal to the country of origin or another country of the alien’s choice that will admit him or her. Three separate instruments involve the forced removal of aliens from national territory: deportation, expulsion, and extradition. The sole paragraph of Article 58 of Law No. 6,815/80, concerning deportation, provides that “deportation shall be to the country of which the alien is a citizen or from which he or she has come, or to another country that agrees to admit him or her.”
b. Expulsion is an act to defend the state, involving the removal of an alien considered detrimental to the national interest. Normally, and almost invariably, it is applied to an alien who is convicted of a crime. He or she is deported after serving the sentence. The proceeding begins with a hearing, at which the alien has full right to counsel. The expelled alien may not reenter Brazil. Return is a crime under Article 338 of the Penal Code. It should be noted that aliens are not expelled if they have a Brazilian child in their custody, who is financially dependent upon them, or if they have had a Brazilian spouse for more than five years.
c. The law contemplates the possibility of canceling the expulsion process if it is incorrectly applied or if there is new evidence to warrant reconsideration of the case. It is always an administrative proceeding. The alien, like a Brazilian, is entitled to a full defense and to make counter motions. He or she may file suit to overturn or reverse the proceeding. The principle of counter motions is an integral part of the expulsion investigation. Article 95 of Law Nº 6,815/80 provides that “aliens resident in Brazil are entitled to all the rights afforded to Brazilians under the Constitution and applicable law.”
d. If the alien was already expelled, he or she must remain out of the country and his or her attorney can pursue the case. If he or she has not been expelled, the decision is stayed pending final adjudication.
e. In Portuguese, presuming that the person has a basic understanding of the language. If not, there is an attempt to communicate in Spanish or English, the most common foreign languages in Brazil. If it is necessary, voluntary interpreters from the respective diplomatic or consular mission may be used. If they are not available, the person must rely on the good will of third parties, such as nongovernmental organizations that aid immigrants.
2. As mentioned in item 34-c, the right of all persons to have access to the courts is guaranteed. If the alien believes that the order for expulsion was unjust or arbitrary, after the expulsion was cancelled he or she may sue for material and moral damages. The final decision is up to the courts.
3. There is no set time. As soon as the case is decided by the court, the alien is expelled, by presidential decree. When the decree is published in the Official Gazette, the Federal Police Department of the Ministry of Justice sends to the Ministry of Foreign Affairs (Directorate of Consular and Legal Affairs and Assistance for Brazilians Abroad) the detailed expulsion order. The Federal Police then takes the necessary steps to carry out the deportation as rapidly as possible and takes the alien to the airport or border post.
4. Nothing prevents an alien from executing a power of attorney to have someone follow the proceedings in Brazil. The Law guarantees payment of wages for legal work. There is no way to guarantee payment of wages from illegal exercise of a profession.
5. Item 32 enumerates the causes that give rise to deportation or expulsion of aliens. In Brazil, access to legal aid is free and a constitutional principle regulated by law. Legal aid is provided to persons who lack the financial resources to pay court costs and lawyer’s fees, determined on the basis of a socio-economic profile of the individual. In theory, the public defender is available to persons who earn less than five times the minimum wage and lack substantial assets.
Canada
1. No.
2. At ports of entry and inland offices, senior immigration officers are authorized to issue departure orders and exclusion orders of most persons in violation of the Immigration Act.
Other persons whose cases have not been resolved by a senior immigration officer, or who are not allowed to enter Canada or who, after entering Canada, are alleged to be in violation of the Immigration Act or Regulations, have the right to be heard at an immigration inquiry. Adjudicators from the Adjudication Division of the Immigration and Refugee Board preside over these inquiries. These adjudicators are individuals specially trained in immigration law and related elements of civil, criminal and administrative law. Adjudicators have the powers of a Commissioner under Part 1 of the Inquiries Act.
Those facing an immigration inquiry have the right to be represented by the counsel of their choice at their own expense and the right to be heard in their own language, through an interpreter, at no expense. The right to counsel is dealt in section 30 of the Immigration Act and in sections 27 to 39 of the Immigration Regulations.
a. This may depend on circumstances such as documentation, country of last permanent residence, willingness of country of origin to take back the concerned individual(s).
Subsections 52(1), (2) and (3) of the Immigration Act provide as follows:
52 (1) Voluntary Departure - Unless otherwise directed by the Minister, a person against whom an exclusion order or a deportation order is made may be allowed to leave Canada voluntarily and to select the country for which that person wishes to depart.
52 (2) Place to Which Removed - Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to:
(a) the country from which that person came to Canada;
(b) the country in which that person last permanently resided before he came to Canada;
(c) the country of which that person is a national or citizen; or
(d) the country of that person's birth.
52 (3) Idem - Where a person is to be removed from Canada and no country referred to in subsection (2) is willing to receive him, the person, with the approval of the Minister, or the Minister, may select any other country that is willing to receive that person within a reasonable time as the country to which that person shall be removed.
b. Canada does not expel immigrants or temporary workers legally in the country (in regular status). The procedure for persons illegally in Canada (not in regular status) are as follows:
The Adjudication Division of the Immigration and Refugee Board, conducts immigration inquiries and detention reviews initiated by senior immigration officers for certain persons believed to be inadmissible to, or removable from, Canada in the Immigration Act. Adjudicator's power include the following:
- Departure order - A removal order made against a person who has violated the Immigration Act or Regulations. It requires that the individual obtain a Certificate of Departure and to leave Canada within a period of time specified in the Immigration Regulations. If the person does not leave the country within that time, the departure order automatically becomes a deportation order.
- Deportation order - Directs the removal of a person from Canada who either inadmissible or has violated the Immigration Act and Regulations. A person who is the subject of a deportation order will be removed from the country and may not return without the consent of the Minister of Citizenship and Immigration.
- Exclusion order - Requires a person to be removed from Canada. After an exclusion order has been carried out, the person cannot return to the country for at least one year after the departure date without the consent of the Minister. If the person wishes to return to Canada during this period, he or she must initiate a request for the Minister's consent at a visa office abroad.
- Inclusion of family members - After each dependant has been heard at an inquiry, an adjudicator may include dependent family members in a removal order unless they are Canadian Citizens or permanent residents aged 19 or over. Dependent family members included in a removal order do not require the Minister's consent to return to Canada.
As indicated earlier, Section 30 of the Immigration Act recognizes that persons facing an immigration inquiry are entitled to be represented by counsel if they desire, but that shall be at the person’s own expense. However, representation by counsel may be funded through legal aid.
c. Judicial review of decisions under the Immigration Act is available, with leave, before the Federal Court Trial Division pursuant to s. 82.1 of the Immigration Act. In the immigration context, the Court's stated test for granting leave i snot rigorous --an applicant need only show that there is a "fairly arguable case" or a "serious question to be determined" for leave to be granted.
d. The person can remain in Canada pending review.
e. Please refer to beginning of this question.
3. Section 52.1 of the Immigration Act provides as follows: Return to Canada - Where a removal order, other than a removal order that may be appealed to the Appeal Division, has been made against a person and the person is removed from or otherwise leaves Canada, the person may, at the expense of the Minister, return to Canada, if the person is subsequently successful in having the removal order set aside.
4. In general, the Immigration Act, stipulated that removal orders must be executed "as soon as reasonably practicable". However, the Immigration Act also provides that "no removal order becomes invalid by reason of any lapse of time between its making and execution".
Generally, a removal order will be executed within few weeks of its making and persons will normally be allowed a reasonable period of time to arrange their affairs in Canada before execution of the order.
5. The reference to "any pending matters relating to him" is too vague for a response. If it is intended to refer to legal actions, there is nothing to preclude an individual from continuing or bringing a civil action in a Canadian court.
Colombia
1. Immigrant workers could be expelled if they are illegal or if they commit acts which contravene national laws.
Expulsion in Colombia is ordered on a case by case basis according to facts previously established, and these facts can be classified as acts that put the security of the State in danger or as an accessory punishment to a crime which is ordered through a final sentence; it is not applied in a collective manner.
Article 22(1) of the International Convention on the Protection of the Rights of All Migrant Workers and the Members of Their Families provides that: "Migrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually." Paragraph 2 states: "Migrant workers and members of their families may be expelled from the territory of a State Party only in pursuance of a decision taken by the competent authority in accordance with law."
2. The only competent authority to order an expulsion in Colombia is the Administrative Department of Security [Departamento Administrativo de Seguridad], on its own initiative or in conformity with an order from a judge of the Republic, within a final sentence, as an accessory punishment.
a. Article 22(7) of the Convention previously mentioned states that: "Without prejudice to the execution of a decision of expulsion, a migrant worker or a member of his or her family who is subject to such a decision may seek entry into a State other than his or her State of origin."
In the same respect, article 23 provides that: "Migrant workers and members of their families shall have the right to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin or of a State representing the interests of that State whenever the rights recognized in the present Convention are impaired. In particular, in case of expulsion, the person concerned shall be informed of this right without delay and the authorities of the expelling State shall facilitate the exercise of such right."
In conformity with the currently existing norms, whoever shall be the subject of deportation or expulsion can seek entry into the State of their last place of residence or to a State where they are welcomed.
b. The expulsion is imposed by means of a resolution with reasoning against which proceed that remedies of reinstatement and appeal established in the Administrative Law Code. There is one exception which is the expulsion as an accessory punishment imposed in a final sentence, fulfilled through an interlocutory order.
Article 197 of Decree Law 2371, dated 1996, "through which orders are issued concerning expedited visas, the control of foreigners, and other issues concerning immigration matters," established the procedure which is to be followed for the expulsion of foreigners.
The Directorate of Foreigners of the Administrative Department of Security [Dirección de Extranjería del Departamento Administrativo de Seguridad], DAS, without detriment to the sanctions that are applicable, could order, by means of a resolution, the expulsion from the national territory of the foreigner that has committed any of the acts mentioned below.
Having been sentenced to prison, a sentence which did not contemplate the accessory punishment of expulsion from the national territory.
Intervene in or carry out acts committed against the existence and security of the State which disturb public order.
Having committed conduct that, in the opinion of the migrant authorities, qualifies the foreigner as dangerous to national security or social order.
Dedicate themselves to the selling or trafficking of illegal drugs, pandering and, in general, participating in antisocial behavior.
Illegally traffic in arms, or elements that are of private use for the Armed Forces.
Return to the country prior to the time decided in the deportation resolution.
Having been convicted for common crimes abroad and not being able to be tried before a court in the country.
Facilitate the entry of foreigners with false promises of obtaining contracts, being supplied with visas or entry documents, or being granted permanent residence.
Paragraph. One can appeal the administrative act, which imposed the expulsion, by means of the remedies available at the governmental level, which would grant a temporary stay unless there are important security reasons that would oppose such an act.
Article 199. The foreigner affected by means of expulsion can only return to the country with a visa authorized by the Ministry of Foreign Relations, having passed a period of no less than five (5) years, designated in the administrative act that enforces or executes it.
c. As a guarantee, once the remedies brought against the resolution concerning expulsion have been resolved, the governmental remedies exhausted, an administrative act can be filed within the jurisdiction of the Administrative Courts [Contencioso Administrativo].
Article 22, paragraph 4, of the Convention provides that: "Except where a final decision is pronounced by a judicial authority, the person concerned shall have the right to submit the reason he or she should not be expelled and to have his or her case reviewed by the competent authority, unless compelling reasons of national security require otherwise. Pending such review, the person concerned shall have the right to seek a stay of the decision of expulsion."
In that respect, the sited Decree Law 2371 of 1996, in paragraph 191, provides the following: "One can appeal the administrative act, which imposed the measure of expulsion, by means of the remedies available at the governmental level, which would grant a temporary stay unless there are important security reasons that would oppose such an act."
Article 198 states that: "When the expulsion is decided as an accessory punishment by means of a final sentence, the Director of Foreigners [Director de Extranjería], the Directors of Sections [Directores Seccionales] and the Chiefs of Operative Posts of the Administrative Department of Security [Jefes de Puestos Operativos del Departamento Administrativo de Seguridad], DAS, by means of an interlocutory order, would comply with the expulsion of the foreigner and would make the respective notifications to the Minister of Foreign Relations and to the judicial office which ruled on the order."
d. The remedies that proceed the deportation resolution and appeal are considered in effect suspended for the purpose of permitting the foreigner to wait for the final decision within the country.
e. The principal language used is Spanish. The foreigner is notified of all administrative or judicial acts in the language mentioned, unless the help of an interpreter is necessary, in which case assistance is requested from the diplomatic mission of the country from which the individual is a national.
3. No. There do not exist any mechanisms for compensation.
4. The average period is 30 days from the date of the final decision.
5. The DAS has explained that if the migrant authorities are aware of the situation, the established period can be extended until the administrative situation is resolved, granting them a document which permits them to remain in the country without risk.
In spite of that, in the case of the deportation of legal workers, the rights they have acquired are respected and the employer is responsible for answering for those rights.
Dominica
1. No.
2. a. We regret that we are not able to answer your question.
b. No.
c. Yes
d. No.
e. No.
3. We regret that we are not able to answer your question.
4. We regret that we are not able to answer your question.
5. We regret that we are not able to answer your question.
Ecuador
1. Yes, they can be expelled if they are illegal or if they incurred in a deportation cause.
2. The “Intendente de Policia” is the only authority who knows about deportation.
a. Yes they can do it to the place where they came from or of the last embarkation.
b. There is a unique procedure and the competent authority to resolve is the “Señor Intendente de Policia”.
c. Yes they have, everybody is entitled to the right of to defend themselves and prove their statements during and in the same procedure that is known by the “Intendente”
d. Yes, he stays in the country.
e. It is communicated in Spanish, and in their own language, for most of the times the embassies and diplomatic missions are asked for help.
3. There is no such right recognized in the law.
4. The custom obliges them to leave the country immediately, there is no time established by law.
5. In accordance to the Labor Law, they are acquired rights and must be recognized, although there is some lack of legislation.
Grenada
1. No.
2. Departament of Imigrations (ii) Yes.
a. Yes.
b. Civil Court Action (ii) No.
c. Yes (ii) judicial system.
d. Yes.
e. English.
3. Yes (ii) determined by the Court.
4. Determined by the Court.
5. Treated previous to the expulsion.
Guatemala
1. In Guatemala there do not exist criminal penalties against the collective deportation of "migrant workers." What does occur with a certain frequency are cases of the deportation of groups of illegal immigrants which have been detained by the national authorities upon request by the migrant authorities, almost always at the moment upon entry to the country. In these cases, even though the law orders that they receive individual treatment through coordination among the competent Guatemalan authorities, the diplomatic representatives of a group of illegals, and international organizations within the country, they continue to deport these individuals collectively.
2. The administration of the records, control and documentation of the movement of migrants corresponds to the Ministry of Governance [Ministerio de Gobernación], in accordance with that established in article 36, letter K, of the "Ley del Organismo Ejecutivo." According to article 2 of the Law of Migration and Foreigners [Ley de Migración y Extranjería], the General Directorate of Migration [Dirección General de Migración] is responsible for complying with the law, as well as all the dispositions related to matters concerning migrants and the control of foreigners. The General Directorate of Migration [Dirección General de Migración] is a branch of the Ministry of Governance [Ministerio de Gobernación].
a. Article 88 of the Law of Migration and Foreigners [Ley de Migración y Extranjería] establishes the following with respect to the destination of those expelled: "The expelled foreigner will leave with his destination being the country from which he came from, his country of origin, or whichever country the foreigner chooses and that authorizes his entry."
b. If the Inspection of Workers [Inspección de Trabajo] proves the undocumented status of a migrant worker, the case will be sent to the General Directorate of Migration [Dirección General de Migración] so that they may proceed to initiate the expulsion process.
The procedures that must be followed are the following:
The General Directorate of Migration [Dirección General de Migración] requests the consulate of the country from which the undocumented migrant worker is a national to grant a temporary identification document for the purpose of travel.
Subsequently, the General Directorate of Migration [Dirección General de Migración] grants safe-conduct to leave the national territory.
In the case of Central Americans, the General Directorate of Migration [Dirección General de Migración] proceeds to take them by land to the border with a Central American country. In cases involving other countries in which the above mechanism can not be utilized, they coordinate with international organizations so that they cover the cost of an airplane ticket to the country from where the migrant worker is a national.
In the case of documented migrant workers, they can only be expelled if they commit a violation of certain articles of the Law of Migration and Foreigners [Ley de Migración y Extranjería]. Nevertheless, their expulsion should be carried out according to the procedure established en article 89 of the Law of Migration and Foreigners [Ley de Migración y Extranjería], which states: "The order of expulsion should be notified to the person effected, within twenty-four hours following their release, who will have a period of no more than eight days, beginning from the moment he was properly notified, to leave the national territory."
c. The applicable legal provisions are cited bellow:
The Political Constitution of the Republic of Guatemala, article 29, establishes that: "Free access to courts and State institutions: Every person has free access to the courts, institutions and offices of the State, for the purpose of exercising their legal actions and to have their rights respected in conformity with the Law. Foreigners can only turn to diplomatic channels in the case of a denial of justice."
Article 41 of the Law of Migration and Foreigners [Ley de Migración y Extranjería]: "Foreigners are granted the right to liberty, equality and personal security, their honor and possessions, in accordance with constitutional principles, subject to the exceptions established by law."
Article 42 of the Law of Migration and Foreigners [Ley de Migración y Extranjería]: "Every foreigner has the duty to obey and respect the laws, institutions and authorities of the Republic, and should be subject to the decisions and sentences made by the courts, without making use of other remedies granted by those same laws to Guatemalans."
Article 51 of the Law of Migration and Foreigners [Ley de Migración y Extranjería]: "Only in the case of the denial of justice or voluntary delay of the same can foreigners resort to the diplomatic route if they have exhausted the common remedies established by law. Appeal to the diplomatic route will only serve to ensure compliance with the law."
Article 52 of the Law of Migration and Foreigners [Ley de Migración y Extranjería]: "It is understood that there is a denial of justice when the judicial authority does not make a formal declaration concerning the principal issue or any other part of the legal action which is currently before him or presented to him."
The mere fact that a judge has made an interlocutory order or declared a sentence, regardless of the ruling, does not permit one to allege a denial of justice, even when it is argued that the resolution on the merits is contrary to that established by law.
d. They can remain in the country if they have properly registered with the Foreign Department of the General Directorate of Migration [Departamento de Extranjería de la Dirección General de Migración].
e. Article 143 of the Political Constitution of the Republic of Guatemala provides, Official Language: "The official language of Guatemala is Spanish. The dialects form part of the cultural possessions [patrimonio cultural] of the Nation." Notwithstanding the above, the migrant authorities coordinate with the Guatemalan Ministry of Foreign Affairs so that they, at the same time, contact the respective embassies in the country of the immigrants that are involved in the case in order to facilitate interpretation for the purpose of providing adequate communication.
3. The Political Constitution of the Republic establishes, in article 155, that: "Responsibility for Breach of the Law. When a dignitary, official or employee of the State, during the course of their employment, breaches the law causing damage to individuals, the State or the State institution, of which the person is an agent, will be held responsible for the injuries and damages caused."
The Civil Code [Código Civil] article 1665: "The State and municipalities are responsible for the injuries or damages caused by their officials or employees, during the course of their employment."
This responsibility is a subsidiary one that can only be effective when the official or employee does not have assets or, if they do have assets, does not have sufficient assets to answer for the injury or damage caused.
In order for the above concepts to be carried out, it is necessary to follow a process before the courts of civil order [tribunales del orden civil].
4. The Law of Migration and Foreigners [Ley de Migración y Extranjería] establishes, in article 89, that: "The order of expulsion should be notified to the person effected, within twenty-four hours following their release, who will have a period of no more than eight days, beginning from the moment he was properly notified, to leave the national territory."
Normally, the General Directorate of Migration [Dirección General de Migración] grants deported individuals a minimum of 72 hours to leave the country. Nonetheless, an extension to remain in the country can be authorized in special or extraordinary cases, in which it is necessary to prolong the period established by law.
5. In these cases it is the Inspection of Labor of the Ministry of Labor and Social Security [Inspección de Trabajo del Ministerio de Trabajo y Previsión Social] who should be concerned with the payment of the corresponding salary owed. Some cases have been resolved through signing a Payment Agreement [Convenio de Pago] between the parties.
Honduras
1. a. It could be the case, when it involves a group of family members under the responsibility of the mother or father.
b. When the group of workers is collectively responsible for violating the Laws of the Republic, regulations or other pre-established rules.
2. The Executive branch, acting through the Ministry of the Interior [Secretaría de Gobernación] (Articles 43 and 44 of the on Population and Migration Policy Law), applied to all foreigners without regard to their migratory status they enjoy during their stay in the country.
a. Usually they are expelled back to their country of origin; in case they can go to another country, they shall fulfill the requisites for entry and acceptance established by the immigration authorities of the country they have chosen.
b. The administrative and legal immigration processes vary according to the status the immigrant holds at that moment; the normal processes are the notification to the foreigner regarding his situation and later the travel to their country of origin, with respect to human rights as provided for in the Universal Convention on Human Rights.
c. As is the case in every country under the rule of law, the immigrant is guaranteed the right to defense, under the norms provided for in the Constitution of the Republic and other legislation.
d. He remains in our country while the competent authorities review his case and issue a final decision on it.
e. Usually they are notified in Spanish; if that is not the immigrant’s language, a translator is provided to him.
3. A resolution may be nullified after the immigrant or immigrants have left the country, under a request for a second review, which shall be made at the request of those affected, through the Honduran Consulate closer to their residence, in accordance with rules of international law; if this second resolution nullifies the first one, the immigrants may again enter the country as compensation by the Honduran State.
4. Article 44 of the Population and Migration Policy Law mentions a period of 24 hours for the expulsion of foreigners, after this decision has been made. More than 24 hours may be granted in case of illness, or for arrangements involving real estate, home and family utensils, salaries, etc., which shall be carried out under the responsibility of a legal representative.
Mexico
1. No. An act under administrative authority which imposes the sanction of the expulsion of foreigners should be issued individually, not collectively. Frequently, transporting foreigners to their countries of origin, which in this case would be migrants and their families, is carried out in a collective manner, which in and of itself does not suggest that the expulsions are done in the same manner since each of these individuals are issued an expulsion order [oficio de salida].
On the other hand, having ratified the American Convention on Human Rights, Mexico has incorporated within its domestic law the prohibition of the collective expulsion of foreigners, provided for in article 22(9) of said international instrument.
2. The National Institute of Migration [Instituto Nacional de Migración] (INM), as an independent organ of the Secretariat of the Government [Secretaría de Gobernación], is responsible for executing the political and administrative acts of the Government of Mexico concerning migration matters. In the same manner, as the body responsible for the entry and exit of foreigners from the national territory, they also have the competence to determine which person or group of persons are qualified for expulsion from the country in conformity with Mexican laws.
a. Not in principle. When Mexico expels someone or carries out the act of repatriation, the destination should be the migrant's country of origin, as a result of the fact that our countries can not promise third counties to be responsible for these individuals. Nevertheless, if migrant workers and their families choose to go to a third State after having been turned in by Mexico to the authorities of their country, they can do so under their own responsibility.
b. In order to answer this question, it is necessary to establish various grounds.
That which establishes the difference between the holding [aseguramiento] and the detention or apprehension of a foreigner, who could be a migrant worker or one of their family members, is the reason for which such an act is being carried out.
The holding of a foreigner is carried out when one fails to respect an administrative order, for example not to carry the documentation that proves their legal status to remain in the national territory, which is regulated in article 152 of the General Population Law [Ley General de Población] (LGP) and 143 of its Regulations, which establishes: "the Secretariat [Secretaría de Gobernación] will evaluate whether a violation of the LGP and its regulations and other applicable norms has occurred, and in this case, they would consider the nature and seriousness of the breach in order to determine the sanction which corresponds to each individual, always taking into consideration the circumstance which occurred, the evidence supplied by the one who breached and their arguments with respect to the same."
"When all the mentioned elements have been put together, the Secretariat will decide the case with the corresponding motivated and grounded resolution, of which the interested party … should be personally notified."
On the other hand, an order of detention or apprehension must come from a judge, in accordance with article 16 of the Constitution, second paragraph: “An order for detention can not be issued other than through judicial authority and without there being a report, accusation or complaint of a determined act which the law defines as a crime, sanctioning at least through the punishment of the deprivation of liberty and there being facts which prove the elements which incorporate the crime and the likely responsibility indicated.”
The manner in which both an administrative proceeding and a judicial process are conducted is similar, in that they respect procedural and legal guarantees, which all individuals benefit from. The difference between the two proceedings consists principally in the type of authority that issues the resolutions and the legal reasoning on which the resolutions are based.
An administrative procedure concerning migration would be issued by the INM and would be based on the Political Constitution of Mexico, the Federal Law of Administrative Procedure, the General Population Law [Ley General de Población] and its Regulations, among other legal ordinances.
A criminal process would be tried by the jurisdictional authority and it would be based on the Political Constitution of Mexico, the Criminal Code of the Federal District, and the Federal Criminal Code, the Federal Code of Criminal Procedure, and the General Population Law [Ley General de Población], among other legal provisions.
In relation to criminal matters, the status of a documented or undocumented migrant worker is not relevant, that is to say, the crimes and punishments are issued and applied equally to nationals and foreigners.
With regard to administrative breaches, the status of a documented or undocumented migrant worker is relevant, based on the fact that once an undocumented migrant worker is detected, he is susceptible to being expelled from the national territory, while a documented migrant worker would not confront any form of administrative proceeding as long as they do not breach Mexican migrant laws.
c) Yes. When a documented or undocumented migrant worker is the subject of an expulsion (administrative act) they legally have two manners through which to appeal such an act.
The first manner is the remedy of review, which is regulated by the law of Federal Administrative Procedure, the General Population Law [Ley General de Población] and its Regulations. The remedy of review should be presented before the authority that issued the resolution; such a remedy should be presented by the interested party or their legal representative after receiving notification of the resolution they are challenging; additionally, it should be done in writing; the relevant evidence will be considered, and the review will be resolved by the corresponding authority within a period of 30 days from the date on which it was presented.
The resolution issued in the remedy of review could consist in the confirmation, revocation, modification of the appealed act or the reinstatement of the proceeding.
The second manner is the presentation of an "amparo" (an action for the protection of fundamental rights), which is grounded in the Mexican Constitution and the Law of Amparo [Ley de Amparo]. It is important to note that an amparo action is only brought against acts committed or resolutions issued by the authorities of a final character, that is to say, in order to be able to present an amparo action the ordinary remedies established by the applicable law must first be exhausted. The amparo demand is to be presented before a Distract Judge (Federal Judge).
In accordance with article 1 of the Law of Amparo [Ley de Amparo] “the trial of amparo serves the purpose of resolving all controversies about:
l. Laws or acts of the authorities that violate individual guarantees….”
The requirements for the amparo action to proceed can be summarized in the following form:
The amparo should be presented by the complainant (the effected party, which in this case would be the migrant worker), that is to say, by the person who was directly effected by the expulsion.
As established previously, the ordinary remedies establish by law should be exhausted (in this case, fist they should seek the remedy of review established in the LGP and against the resolution of that remedy they could bring an action of amparo).
The ruling from an amparo action will only benefit the worker that solicited the protection of the federal courts, that is to say, that even though other migrant workers find themselves in the same situation, the ruling only benefits the one who brought the action. The ruling will have the effect of resolving the situation so that the migrant is put in the position he was before his rights were violated.
d. When a migrant worker has initiated the remedy of review or an action of amparo against the resolution that ordered their expulsion and requests the suspension of the expulsion, the worker should not leave Mexican territory until the remedies concerning the expulsion are resolved.
Article 159 of the LGP Regulations establish the requirements for the suspension of the expulsion:
Filing this remedy suspends the execution of the resolution or the challenged sanction if the complainant requested such suspension, in accordance with the following rules:
II. In administrative resolutions, unlike those mentioned in the prior paragraph, [resolutions that only concern economic punishment] if the following requirements are fulfilled:
a) That the case be admitted;
b) That executing the resolution which is being appealed would cause damages or injuries to the complainant that would not be able to be repaired in the future (which is the case of the expulsion of a migrant worker);
c) That the suspension does not result in damages to social interests.
With respect to the suspension of the act being appealed in an amparo action (the expulsion of a migrant worker), article 124 of the Law of Amparo establishes the requirements so that the suspension may be granted:
…the suspension will be granted when the following requirements are complied with:
I. That the injured party solicits the legal action (the migratn worker);
II. That the suspension would not cause injury to social interests, and that public order is not breached;
III. That it is difficult to repair the damages or injuries caused by the expulsion which effect the complainant
e. The migrant workers are notified of the administrative or judicial resolutions of the Mexican authorities in Spanish because that is the official language of our country. Nevertheless, the Mexican authorities try to have the consulate of the migrant worker's home country present when that migrant worker is notified of any resolution(s) in order to facilitate any situation related to their native language. Additionally, it is important to note that the majority of migrant workers speak Spanish because they are from Central and South American countries.
3. Yes. When a migrant worker and their family are expelled based on a resolution from an administrative authority, and later this resolution is voided, they can demand payment for the damages and injuries caused by that resolution.
The procedure is that of a jurisdictional nature and would be adjusted in accordance with that established in the Federal Law of Administrative Procedure and the Federal Code of Civil Procedure.
4. The period granted to a migrant worker to leave Mexico, issued through a resolution that orders his expulsion, varies depending on the discretion of the Secretariat of Government [Secretaría de Gobernación].
Article 64 of the Regulations of the LGP indicates: "The Secretariat could, in his own opinion, grant a period of time to leave the country or to fully comply with the requirements of the law. The employer or the persons that the migrant worker depends on have the same obligations."
There exists a practice or custom among the migrant authorities that establishes a period of time between 30 and 60 days, depending on the special circumstances of each case.
5. When a documented or undocumented migrant worker is expelled from Mexican territory and, even after the expulsion, the employer owes the worker his salary, the employer has the obligation to pay him. In these circumstances the consular authorities of the country from which the migrant is a national play a very important role because they serve as a link between the Mexican authorities and the migrant worker.
In the case where the employer fails to pay the salary that they owe the documented or undocumented migrant worker, an action can be brought against the employer according to labor law before a Arbitration and Conciliation Panel, which the worker would have access to, in spite of his migrant status, in order for the employer to pay the salary due.
Saint Lucia
1. Yes.
2. Chief Immigration officer (Immigration Department) or the Court.
a. No.
b. Same procedure, ( arrest, charge, brought before the Court and deported).
c. They can appeal within 7 days, by using a Notice Appeal Form.
d. They remain in police Custody or the Chief Immigration Officer can authorize for their stay to be extended.
e. In English and by Interpreter.
3. No.
4. At the earliest possible time/immediately regular checks are made; concerning household effects. But sometimes persons leave the country and their household effects.
5. In some instances monies are not retrievable but in others if proper documents are prepared they can be duly paid.
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Trinidad and Tobago
1. Not known.
2. The competent authority to determine whether an immigrant worker and members of his family can be expelled from this country is the Ministry of National Security. It is the same authority for both regular and irregular immigrant workers.
a. An immigrant worker and his family members who are expelled from this country may go to a country other than his country of origin.
b. Not known.
c. Not known.
d. Not known.
e. Immigrant workers are informed of the decisions of administrative or court authorities in his own language.
3. Not known.
4. Not known.
5. Not known.
United States
1. All deportations and removals from the United States are treated on an individual, case by‑case basis.
2. Deportation hearings are decided by an immigration judge under the Immigration and Nationality Act. These decisions can be appealed to federal U.S. District courts.
a. Yes, depending on the individual circumstances involving residence and nationality.
b. The administrative procedure involves the alien being served with a charging document to appear before an immigration judge. The alien has the right to appeal the judge's decision to federal U.S. District courts. If ordered deported, the alien is given a reasonable time to leave the United States. The alien may be required to obtain departure verification.
c. Yes, appeals to decisions by immigration judges may be made to federal U.S. District courts.
d. The District Director of the Immigration and Naturalization Service under whose jurisdiction the case falls has the authority to allow the worker to remain pending its resolution.
e. Administrative and judicial decisions are issued in English. If the decision is made during a hearing, aliens who do not speak and understand the language are generally informed of the decision through an interpreter. Written decisions, however, are not translated.
3. Removal orders issued by immigration judges can be appealed to the Board of Immigration Appeals (BIA). If the BIA upholds the removal order, an alien can appeal to the federal judicial courts. Those courts can overturn the removal order and, if they determine compensation is warranted, award such compensation.
4. Generally, the alien is given a fair and reasonable time to leave the country. Aliens may have to provide departure verification. Exceptions involve criminal violations, where the alien may be immediately deported.
5. All aliens ordered removed from the United States are entitled to keep the wages they earned. Under the Fair Labor Standards Act (FLSA) and other laws enforced by the Department of Labor, which deal with employee wages and working conditions, a person's immigration status does not affect his or ha entitlement to receive proper payment for all hours worked. The Department of Labor collects back wages from problem employers on behalf of wronged employees. When these workers have already been deported, DOL, working with other agencies (i.e., the Department of State, the Immigration and Nationalization Service), makes every reasonable effort to locate the expelled or deported workers so that they receive these back wages.
Venezuela
1. No. Massive deportations are prohibited. Pact of San Jose Costa Rica article 22(9).
2. The competent authority is The Ministry of Internal Affairs.
Yes.
a. No. The expulsion (deportation) is always to the county of origin with the exception established in article 43 of the Foreigners’ Law, which establishes that the expelled will not be obliged to leave the country by a way that leads to the jurisdictional territory of the Government that persecutes him, if it were the case.
b. The established in articles 35 through 53 of the Administrative Procedure Organic Law.
Yes.
c. No. The Foreigners Law
Nevertheless, the Constitution of the Republic (article 49) and the “Ley Organica de Amparo sobre Derechos y Garantias Constitucionales (gaceta Oficial Number 33.891 of 2241-88) establish the right of every inhabitant of the Republic (or “persona juridica domiciliada” in it) to ask of the competent judges protection in the constitutional rights, even of rights that being fundamental to every person are not recognized in the Constitution, from any fact, act or omission performed by the National, State or Municipal branch of power.“Poder Publico Nacional, Estatal o Municipal” (or from the citizens or private organizations), who have violated, violate or threaten to violate such rights and guarantees.
Because it is a remedy of constitutional rank, also regulated by a “ley organica” (of superior rank than the Foreigners’ Law which is common), nothing stops a foreigner who is ordered to leave the country immediately in accordance to article 34 of the foreigners’ law, or whose expulsion from the country is ordered in accordance to articles 35 to 46 “ejusdem”, can file a “recurso de amparo” when such measures or decrees violate fundamental rights or guarantees.
On the other hand, if the expulsion measure is imposed by the judiciary, the affected will have the opportunity to file the ordinary judicial remedies of appeal and “ Recurso de Hecho” (articles 50 through 55 of the Criminal Procedure Code) which are filed and decided within the same procedure. In the cases in which the expulsion is determined by the extraordinary procedure, the extraordinary remedies that can be filed are the “ Recurso de Casacion”(article 327 to 354 ejusdem) and the ‘Revision de la Sentencia Penal” (article 56 ejusdem).
Finally, it is important to state that the President can revoke the expulsion decree at any time. (Article 44 of the Foreigner Law).
d. In the case of the judicial procedure, the immigrant worker who has been imposed the penalty of expulsion, and files an ordinary or extraordinary remedy against the decision will stay in the country until there is a final decision by the competent judiciary organ.
In case of the administrative procedure “procedimiento administrativo” because there is no remedy (article 47) the foreign worker must leave the country in three to thirty days, as established in the expulsion decree.
The foreigners’ law, in its article 46, establishes that the foreigner against whom an expulsion decree has been issued can be preventively detained or submitted to authority surveillance, depending on the case, while he/she awaits his/her departure from where he/she is, or during his transport through land or during his/her permanence on board until the ship has definitely abandoned Venezuelan territory.
e. The National Constitution, in its article 6, establishes that the official language is Spanish; for this reason, every decision coming from an administrative authority and/or judiciary must be communicated in Spanish.
Article 13 of the Civil code also states: The legal language is Spanish. The public offices cannot use another one in their acts.
In the hypothesis that a foreigner (immigrant worker) does not know the Spanish language, a public translator will be provided or if it is not possible a person with sufficient knowledge of the language, according to what is established in article 5 of the Public Translators Law.
3. The Law does not establish a compensation for the immigrant or any member of the family when the President who is the only competent person to revoke the referred decree annuls the decree.
4. From 3 to 30 days, according to article 40 of the Foreigners law.
5. The immigrant worker of regular or irregular status will be able to attend his affairs through a duly authorized represebtative.
The Treaty of Tonchala establishes as well that no worker, even though they have no documentation, can be fired or returned to the frontier before being paid his salary and social benefit accordance to labor laws, with out prejudice of the measures that the authorities have to take to insure their exit of the country.
6. Judicial Guarantes and Due Process of law
1. Are irregular immigrant workers and their family members entitled to fair trial and court protection on the same terms as citizens of your country? Can an irregular immigrant worker be expelled from your country merely by appearing before the court system for any other matter? Are legal counsel services available to migrant workers who are unable to pay the legal services of a professional?
2. Are immigrant workers and their family members entitled to appear before the diplomatic authorities of their country of origin or to seek assistance for the protection of their rights, or from the authorities who represent the interests of that country? If so, how is that right made available to the migrant workers and their family members?
Brazil
1. Item 32 lists the causes that result in deportation or expulsion of aliens. In Brazil, access to free legal counsel is a constitutional principle, regulated by law. The assistance is specifically for those who lack the financial resources to pay court costs and lawyers’ fees, on the basis of a socio-economic profile of the individual. In theory, persons have a right to the services of the public defender if they earn less than five times the minimum wage and have no substantial assets.
2. There is no recent information to the effect that Brazilian authorities have at any time prevented aliens from having recourse to the diplomatic or consular missions of their country of origin. Diplomatic and consular officials assist their nationals resident in Brazil. In some cases they provide legal or political assistance. In others, they even provide material aid.
Canada
1. Yes; no; legal aid (financial assistance) may be available for criminal charges, depending on the nature of the crime and the financial circumstances of an accused.
2. Yes. Canada is a Party to the Vienna Convention on Consular Relations. Particularly in cases of detention before removal, all persons have access to legal counsel, consular officers, family, friends and NGOs. Both legal counsel and consular officers have access to the detainee at any time, and the detainee may contact them at any time. Other groups of visitors, such as family, friends and NGOs, can visit detainees during scheduled visiting hours. Where there are no scheduled visiting hours (i.e., short-term detention in a hotel room), special arrangements can be made upon request.
Dominica
1. Yes (b).
2. We are unable to furnish you with response to this question.
Ecuador
1. Yes, they have rights.
2. Yes.
Grenada
1. Yes (ii) No (iii) Through Legal Representation.
2. Yes (ii) Through Legal Representation.
Guatemala
Article 4 of the Political Constitution of the Republic establishes that: "Freedom and equality. In Guatemala all human beings are free and equal in dignity and rights. Men and women, whatever their civil status, have equal opportunities and responsibilities. No person can be submitted to involuntary servitude or any other condition that diminishes their dignity. Human beings should conduct themselves as brothers to one another."
Additionally, the Constitution provides, in article 12, that: "The right to defense. The defense of a person and their rights is inviolable. No one can be condemned or deprived of their rights, without having been summoned, heard and sentenced in a legal matter before a competent judge or court previously established by law.
No person can be tried by special or secret courts or by procedures not previously established by law."
Article 31 of the Law on Migration and Foreigners [Ley de Migración y Extranjería] stipulates that: "Foreigners are subject to the laws of the Republic, including the provisions of International Law accepted by Guatemala."
Article 41: "Foreigners are guaranteed the rights to liberty, equality and personal security, their honor and possessions, in accordance with the Constitutional provisions, with the exceptions established by law."
With regard to undocumented migrant workers that do not have remedies for their defense, they have the option of seeking help from university legal aid offices in the country, which offer free legal assistance or advice. Additionally, they can go to the public defenders' office provided by the Judicial System, which is also a free service.
2. Migrant workers and their families have the right to go to or communicate with the consular authorities or diplomats of their country of origin.
Honduras
1. Yes. Under the conditions in which the Hondurans make their petitions and claims, since foreign aliens living in our country are entitled to the same civil rights as Hondurans, and they must resort to the authorities that represent the interests of the Honduran State, such as the Labor Secretary and Labor and Human Rights Organizations.
2. Yes. Upon entering the country, foreign aliens are obliged to respect the laws and the authorities. They are subject to the ordinary and extraordinary charges of a general nature under which Hondurans are obliged. “Ley de Población y Política Migratoria”, article 37; Civil Code, article 12 and Constitution, article 31).
Mexico
1. Yes. Articles 14 and 16 of the Constitution enshrine juridical guarantees, which are extended to Mexican nationals as well as foreigners.
Article 14 of the Constitution, which pertains to such guarantees, establishes “No one shall be deprived of life, liberty or property, possessions or rights, but by virtue of a trial carried out before previously established tribunals, under the essential formal procedural requirements and in accordance with laws passed before the events”.
For its part, Article 16 of the Constitution, which pertains to perturbances, establishes: “No one shall be perturbed either personally, or with respect to their family, home, papers or possessions, but by virtue of a written order issued by the competent authority, which shall provide the grounds and motives for the procedure”.
- No, as indicated previously, the competent authority with respect to expulsions is the Ministry of the Interior, through the National Migrations Institute [Instituto Nacional de Migración, INM], which is an administrative organ, not a jurisdictional body. When a foreigner, who could be an irregular migrant worker, appears before a judge, for example, in civil or criminal matters, the judge shall limit himself to the matter under his purview and, with regard to the migratory status of a foreigner without documents, the judicial authority shall only notify this fact to the INM, so that it may investigate the matter, but a judge may never order the expulsion of a foreigner.
- In criminal matters, both Mexicans and foreigners have the right to defense under Article 20, sections II.IX and X, paragraph 3 of the Political Constitution of the United Mexican States, which establish that in legal assistance matters every individual which is, in principle, presumed guilty of committing an illegal act, and later prosecuted in a criminal court, shall be informed from the beginning of the rights guaranteed to him by the Constitution and he shall have the right to an adequate defense, by himself, or by means of an attorney or a trustworthy person appointed by him. If he cannot or does not wish to appoint an attorney, after begin asked to do so, the Agent of the Office of the Public Prosecutor, and later the judge, shall appoint a defense attorney, who shall participate in all the procedural acts that require his presence, otherwise the proceedings shall have no value as evidence.
- On the other hand, under the recently approved Federal Public Defender Law [Ley Federal de Defensoría Pública], published on May 29 of this year in the Public Registry [Diario Oficial de la Federación], which derogates the previous norm of February 1922 and provides for a legal adviser [asesor jurídico], who is charged with giving free juridical advice to whoever requires it in all matters except for those of a criminal natures.
2. When a migrant, who in this case could be a worker or a member of his family, is secured of detained, for matters related to the legality of his presence in national territory, or because he has engaged in some criminal activity, regardless of whether he has documents or not, the INM immediately contacts the consular authorities of the migrant’s country of origin, with a view to ensuring that these authorities provide him with the necessary legal support.
The previous procedure is strictly in accordance with the international commitments assumed by Mexico under the Vienna Convention on Consular Relations.
When a foreigner is secured by the migration authorities for being in the national territory without documents, the INM (administrative organ) has the duty to notify that the foreigner is being held to the consular authority of his country, so that the consuls or civil servants responsible of the consular sections establish contact with him as soon as possible. This way, the foreigner may have access to a legal representative in those administrative acts through his consular representative.
With the purpose of granting foreigners a better protection of their consular rights, the Government of Mexico has promoted the establishment of bilateral instances, called Consular Protection Consultation Mechanisms [Mecanismos de Consulta sobre Protección Consular], with a view to guaranteeing permanent and fluid communication between migration authorities and consular representatives, which shall facilitate the development of consular protection activities, as well as to speed the attention and resolution of cases of human rights violations.
In 1996, on the basis of the experience of the Consultation Mechanisms on the Functions of the Immigration and Naturalization Service and Consular Protection [Mecanismos de Consulta sobre Funciones del Servicio de Inmigración y Naturalización], with the participation of Mexican consular representatives in the United States of America and the U.S. immigration authorities, Consular Protection Consultation Mechanisms were established between Mexico and Guatemala, Mexico and Costa Rica, Mexico and El Salvador, as well as Mexico and Honduras, under which gather Mexican migration authorities an the consuls of the above mentioned Central American countries. In 1997, Mexico and Nicaragua established a similar mechanism.
Saint Lucia
1. No, Yes, No.
2. Yes. They can contact the diplomatic authority of their country of origin.
Trinidad and Tobago
1. Irregular immigrant workers and their family members are entitled to fair trial and court protection on the same terms as citizens of this country.
2. Immigrant workers and their family members are entitled to appear before the diplomatic authorities of their country of origin or to seek assistance for the protection of their rights, or from the authorities who represent the interests of that country.
United States
1. Anyone in the United States illegally ‑ be they migrant worker or otherwise ‑ is entitled to the same due process. They are placed into removal proceedings before the immigration courts, where they can seek relief against their removal by requesting withholding of removal, cancellation of removal, or asylum. Aliens in removal proceedings may be represented by counsel, and those who cannot afford such counsel are provided with the names of lawyers and organizations that provide pro bono representation.
2. The United States maintains diplomatic and consular relations with most independent nations. Consequently, there are nearly 1,300 foreign consular offices (including consulates and honorary consuls) in the United States. In many instances, foreign governments have consular offices at various locations throughout the US. No obstacles, legal or otherwise, prevent foreign nationals, including migrant workers and their families, from contacting consular representatives of their country of nationality at such offices. When foreign nationals are detained for law enforcement purposes, they may seek consular assistance through direct request by mail or phone, by asking the detaining authorities to advise their consular officials of their request, or by asking their lawyer to contact their consular representatives, who may then call or visit them in detention. In the case of arrests and detention, law enforcement officials should make foreign nationals aware that they may request that the consulate be notified of their arrest or detention if they so desire, in accordance with Article 36 of the Vienna Convention on Consular Relations. In addition, the United States has bilateral consular agreements with about 56 countries that, in cases of arrest or detention of nationals of these countries, require notification of the sending state's consular of finials in the US regardless of the detainee's wishes.
With respect to foreign nationals who are not detained, but who wish consular assistance, informing them that they may seek such assistance is generally the responsibility of the sending state. For example, states may inform their citizens through documentation such as passports or other informational means of the services available from the consular posts. (United States passports contain advice to the bearer about contacting US diplomatic and consular establishments abroad.
Venezuela
1. Yes. Foreign aliens are entitled to the same rights that Venezuelans are, with the limitations established in the Constitution and the laws. They are therefore allowed to use the same means defense and guarantes established in the Venezuelan Constitution and Criminal Procedure Code.
Yes. Nevertheless, it is not usual in Venezuela to detain and expel who has been presented before de Courts.
Yes. Legal counseling services fall within the competence of councelors of the Secretary of Labor and of the different institutions that offer free legal counseling.
2. Yes. They are allowed to communicate with foreign service personnel of their own country and with their relatives.
7. Payment of taxes health coverage, social security system
1. Do irregular immigrant workers have to pay taxes on their salaries or wages?
2. Do irregular immigrant workers have any type of coverage of their health needs by the public health service? If so, how is such coverage extended and what does it consist of?
3. Do irregular immigrant workers and their family members have access to the benefits of the social security system of your country? If so, what do these benefits consist of? Are there any limitations in this connection on irregular migrant workers? If so, what are they?
Brazil
1. As provided in the Federal Constitution (Article 196), all persons have a right to health, and it is the duty of the state to guarantee, through appropriate social and economic policies, the reduction of the risk of disease and other aggravating factors, and universal nondiscriminatory access to actions and services for the promotion, protection, and recuperation of health. In accordance with the rules of the National Health System, all persons who present themselves at an establishment of the public health network, be they Brazilian or alien, legal or illegal, must receive prompt attention.
2. As already mentioned, the illegal presence of an alien in national territory may in theory affect his or her benefit of protection by the state. Paragraph 1 of Article 201 of the Constitution provides that “any person shall be able to participate in the benefits of social pension plans, by contribution to the pension plans.” According to law, the pension plans, on the basis of contributions, cover: i) illness, disability, and death, including the results of labor accidents, old age, and confinement; ii) assistance for support of dependents of low-income insured; iii) protection of maternity, especially nursing mothers; iv) protection of the worker in the case of involuntary separation; v) survivor annuity for a man or woman who is the spouse or companion of the insured, and dependents. Social welfare is provided to anyone who needs it, even if they have not contributed to social security. (Article 203).
3. There is nothing to prevent a migrant worker who is illegally in Brazil from joining a labor union, provided the specific rules are followed, specifically Article 8 of the Constitution: “Professional or trade union membership is open, subject to the following provisions: i) The law may not require state authorization for the establishment of a union, provided it is duly registered with the competent organ. Government agencies are not permitted to interfere in any labor organization; ii) It is illegal to organize more than one labor organization at any level, representing the same professional or economic class in the same area, which shall be defined by the workers and employers involved, and shall not be smaller than the area of a municipality; iii) The union is responsible for defending the rights and collective and individual interests of workers in the respective category, including in legal or administrative matters; iv) The general assembly shall establish the dues that shall be deducted from the payroll for professional workers to underwrite the costs of the federative system of labor representation, apart from the deductions mandated by law; v) No person shall be required to join or remain a member of a union; vi) Unions are required to take part in collective bargaining; vii) Union members who have retired have the right to vote and be elected in unions; viii) Employers are prohibited from firing unionized employees who have registered to become a candidate for union president or representative, and if they are elected, even as an alternate, they cannot be fired for up to one year following their term, except for grave misconduct as provided in law. Sole paragraph. The provisions of this article apply to the organization of rural and fishing unions, provided they meet the conditions of the law.
Canada
1. Not applicable.
2. Not applicable.
3. Not applicable.
Colombia
1. In accordance with the Ministry of Labor, migrant workers in an irregular situation do not pay taxes on their salaries, because their hiring is presumed to be illegal.
2. As a consequence of their illegal status, irregular immigrants have no social security coverage whatsoever under our country’s social security system.
3. Immigrant workers in an irregular situation, due to this circumstance, are not covered by the social security system of our country.
In this regard, it is necessary to bear in mind that, according to Article 11 of Law 100 of 1993, the General Pension System applies to “…all inhabitants of the national territory”. At the same time, Article 15 of the same rule establishes the obligatory affiliation to the system of “all persons under a work contract and civil servants…” and, voluntarily, “independent workers and in general all persons who reside in the country…” and “foreigners who remain in the country under a work contract and are not covered by some system in their country of origin or in any other country”
Therefore, irregular immigrants and their families could be covered by the General Pension System as inhabitants of the national territory, as long as they have a work relationship or the economic ability to join it. However, their “irregular immigrant” status would create them problems in the processing of their application and in paying the respective dues, because the form provided for affiliation, as well as the documents necessary to pay for the services, require an identification document from the affiliate or beneficiary.
With respect to benefits, these are the ones contemplated in generally for all affiliates to the system and they consist of a pension for old age, disability, surviving members of the family, or a replacement indemnification, as well as aid for funerary services.
Dominica
1. Yes.
2. No.
3. No.
Ecuador
1. Yes, they have coverage, in health centers and free public hospitals.
2. Irregular workers do not have the right to a Social Security. In order to have this right they have to legalize their situation and they need a legal link to make the affiliation mandatory because of the work dependency and therefore will be entitled to all the services that the system offers.
3. Yes, they have the right to be part of them, but there are legal limitations to chair them because there is no reciprocity in other countries.
Grenada
1. No (ii) Do not exist.
2. Yes Public Health Centers.
3. Yes (ii) N.I.S (iii) No.
Guatemala
1. Migrant workers and their families have the right to go to or communicate with the consular authorities or diplomats of their country of origin.
2. Article 3 of the Law of Income Tax [Ley de Impuesto sobre la Renta] establishes: "Taxpayers. Individuals and corporations residing in or out of Guatemala, that obtain an income within the country, whether or not they are a national or resident, are taxpayers of this tax and they are obliged to pay the tax when it is verified that they earned an income."
Article 93 of the Political Constitution of the Republic establishes: "The right to health. The enjoyment of ones' health is a fundamental right of a human being, without discrimination." From this perspective, health is a right that all inhabitants of the Republic have without any distinction. Undocumented migrant workers have the same right as others to access to free public health services within the country. This service can also be received by their family, without any importance being given to their status as migrants.
3. The condition of undocumented workers does not permit them to have access to the social security system which is strictly formal and constitutes a service for the legal workers or documented migrant workers.
Honduras
1. Yes. Foreigners are required to obey the law and respect the authorities as of their entering the territory of the Republic; they are subject to the same ordinary or extraordinary general regulations that the Hondurans(article 37, Law of Population and Migratory Policies, article 12 of the Civil Code and article 31 of the Constitution of the Republic).
2. Foreigners have the right to health, as any Honduran, receiving direct atention in Public Hospitals and Health Centers that the Government has all over the country.
3. Every foreigner has access to the benefits of the Social Security System, because in Honduras the dignity of the people is not determined by status or migratory quality.
Mexico
1. No, migrant workers do not pay taxes on their wages or remuneration. Given that they are undocumented, there are no formal means of control over their income, which makes it impossible for the taxing authority to collect such taxes.
2. Article 4 of the Political Constitution of the United States of Mexico indicates in paragraph IV that every person has the right to health. The law defines the bases for and modes of access to health services, and establishes the concurrence of the federation and federation entities in the area of general health.
In order for persons to have access to urgent medical services, the only requirement to be seen is that, according to a doctor’s opinion, that person’s health condition is grave, and if not attended to opportunely, would place his or her physical integrity or very life at risk.
There is no limitation, either by reason of nationality or immigration status, on the ability of a person to receive urgent medical services provided by the State, for example through the Health Secretariat. The foregoing is in accordance with the General Health Law.
The medical attention granted by the State through its Health Services must be provided to any person, without distinction as to nationality or immigration status, including medical care that is not urgent, i.e., general medical care.
The principal benefits of the social security system of the State of Mexico include health services, medical attention and education, among others, that are provided without cost to all persons found within the national territory, independently of their immigration status.
With respect to the labor sphere specifically, all workers have the right to the social services established in Article 11 of the Insurance Law, which comprises the following types of insurance, work risk, maternity and illness, disability and life, retirement, old age, and nursery school and social benefits.
However, in relation to irregular migrant workers, employers are obliged to provide the medical attention, surgery, etc., that may be necessary when required by the workers, in virtue of which in our country social security has the purpose to subrogate the obligations of employers with respect to the health of their workers. However, when an employer does not register his or her worker in the social security regime, he or she remains charged with compliance with the services provided by the Mexican Institute of Social Insurance to rightful holders. The foregoing is in accordance with the terms established in Part XIV of Section “A” of Article 123 of the Political Constitution of the United States of Mexico, which indicates:
Article 123. Every person has the right to honorable and socially useful work; to this effect, the creation of jobs and the social organization for work will be promoted, in accordance with the law.
The Congress of the Union, without contravening the following bases, shall issue the laws on work, which will govern:
A. Workers, day laborers, employees, domestics, artisans and, in general, every work contract:
I…
XIV. Business owners will be responsible for work related accidents and illnesses of workers suffered by reason or in the exercise of the profession or job they carry out; therefore, the employers must pay the corresponding indemnity, according to the resulting consequence of death, or temporary or permanent incapacity to work, in accordance with what the laws determine. This responsibility will subsist even in the case where the employer contracts for work through an intermediary.
Saint Lucia
1. Yes.
2. Yes.
3. Yes.
Trinidad y Tobago
1. Irregular immigrant workers have to pay taxes on their wages or salaries according to the system of taxation in this country.
2. Irregular immigrant workers have coverage of their health needs and this is extended through the General Health Service.
3. Irregular immigrant workers do not have access to the benefits of social security system of this country.
United States
1. Yes, they are required to do so by law. Nonetheless, those working in irregular sectors, such as domestic service, may often fail to report, and pay taxes on, their earnings.
2. The United States does not have a "national (i.e., universal) health program." Irregular (undocumented) migrant workers are not eligible for the largest indigent health care 21 program, Medicaid, by virtue of their lack of approved immigration status. Nonetheless, Community and Migrant Health Centers, which are found in most States and are supported in part by Federal grant funding, can provide primary health care irrespective of a person's immigration status. Services provided by Community and Migrant Health Centers are not considered a "Federal Public Benefit" Her Federal Register/Vol. 63, Nº 14/Tuesday, August 4, 1998/Notices, page 41658). As a result, Centers receiving grant funds of the aforementioned type do not have to verify that a person applying for available services is a qualified alien or eligible to receive the benefit.
Community and Migrant Health Centers are required by law to deliver primary and preventive care to all, regardless of ability to pay. The types of services this includes are well‑adult/child/baby visits, pro‑ and post‑natal services, immunizations, acute and chronic health care, case management, and referrals as needed.
3. Migrant workers who are legally admitted by the Immigration and Naturalization Service to work in the United States must provide a Social Security number to their employer in order to ensure that Social Security and Medicare taxes will be properly withheld if the wages are covered.
Wages of a legally admitted migrant farm worker are covered under the United States Social Security and Medicare systems if the worker:
- is paid $150 or more in cash wages during the calendar year for farm work; or
- is paid less than $150 by an employer whose total agriculture labor expenses for that year are $2,500 or more.
It is very important that both the employer and the worker keep accurate records so that any required taxes are withheld and covered earnings are correctly reported. Employers who do not withhold the required tax, submit the required reports, or issue the required wage statements to the worker, may incur penalties.
Covered wages are posted to an individual's record in order to earn U.S. Social Security credits for benefit purposes. As of 1999, a worker earns one credit for each $740 of earnings, up to a maximum of four credits per year. The number of credits needed depends on the worker's age and the type of benefit for which he/she is eligible. Workers born 1929 or later need 40 credits (ten years of work) to qualify for retirement benefits. A younger worker may also qualify for disability or survivor's benefits, in some instances with as few as six credits.
Non-citizens who qualify for U.S. Social Security benefits may receive unrestricted payments while residing outside the United States over six months if they meet one of the exceptions specified in the U.S. Social Security Act. Citizens of Mexico, for example, meet the exception specified in section 202(t)(2) of the Act. Thus, Mexican workers who qualify for benefits may receive payments even after they have been outside the United States over six months.
Dependents and survivors who qualify for benefits on a worker's record may also receive unrestricted payments after they have been outside the United States over six months if they meet an exception specified in the Social Security Act. However, in most instances, they must also have resided in the United States for at least five years during which time they had the necessary relationship to the worker (upon which benefits are based).
Since as early as 1992, the Social Security Administration (SSA) has been involved in public education programs tailored to provide Social Security information to agricultural workers, crew leaders, growers, and contractors. Three SSA pamphlets are enclosed for your information. (Tab # 5) SSA wanted to ensure that covered wages were being accurately reported and credited to the correct Social Security record.
Venezuela
1. No. Irregular immigrant workers, in general, enter the country to insert themselves in the informal economy, therefore they lack the necessary documentation to be able to access a job in the formal economy. Those who work on their own or as dependants never get to have the minimum quantity of annual remmuneration to pay taxes or contributions to the national treasury. Also, to be subject of the tax regime, they have to have a valid I.D., to obtain the tax information number (NIT) and the Register of Fiscal. Information (RIF), according to the laws that regulate the matter.
2. Irregular immigrant workers do not have access to the Venezuelan Social Security System, because they do not have the necessary documentation. Nevertheless, it is public and notorious that in the rural clinics and hospital centers of the country these kind of workers are taken care of when required. Also, the irregular migratory worker may use public beneficiary centers.
3. Irregular immigrant workers and the members of their families will not have direct access to the Social Security System in Venezuela because they do not have the required documentation for their registation in the system.
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