Thursday 2nd November 2023.
November 1, 2023
The Attorney General of the Administration, Rigoberto González , stated that Law 406 of 2023 , which adopts the contract between the Panamanian State and Minera Panamá, is unconstitutional.
The opinion was sent to Judge María Eugenia López Arias , rapporteur of the unconstitutionality lawsuit filed by lawyer Juan Ramón Sevillano against Law 406.
González, in his 42-page writing, identifies up to seven violations of articles 258, 259 and 266 of the Constitution , summarized as follows:
- The absence of public bidding. Contracting through a special or exceptional procedure involves the presentation of a substantiated technical report and an announcement of this intention, among other prerequisites, “what is not observed in the reviewed documentation.”
- The absence of social welfare and public interest.
- The approval of the law contract, by the Assembly, without carrying out an analysis to qualify the concession contract as “good and sufficient”, the application and scope of which was already interpreted by the Court, in the ruling of December 21, 201. That ruling to which González refers is the one that declared Law 9 of 1997 unconstitutional , which allowed the mining exploitation of the Donoso area and protected the start of operations of Minera Panamá (subsidiary of the Canadian company First Quantum ).
- The absence of an effective and prior public consultation, which guarantees access to information and citizen participation (and not only of the surrounding communities). Not doing so would be a violation of the Escazú Agreement , of which Panama has been a party since 2018, and other environmental commitments signed by the country.
- Clauses that restrict access to justice.
- The clauses that compromise the airspace, lands and assets of the State.
- Clauses that allow the appropriation of property by foreign States.
Numeral 5 of article 257 of the Constitution states that “ the subsoil riches belong to the State , which may be exploited by state or mixed companies or be the subject of concessions or contracts for their exploitation, as established by Law .” González highlights that to exploit these riches in Donoso, a tender had to be called, a procedure that was ignored since the Panamanian State, through the Ministry of Commerce and Industries (Mici) , negotiated directly with Minera Panamá.
Likewise, the Attorney General of the Administration warned that the Mineral Resources Code adopted in 1963 provides that foreign governments or States, nor any official or semi-official foreign entity or institution, nor legal persons in which they have a “direct or indirectly” some foreign government or State.
The contract with Minera Panamá was authorized by the Cabinet Council on October 10, 2023; endorsed by Comptroller Gerardo Solís on October 13; presented to the National Assembly on October 16, and finally approved in the third debate, sanctioned by President Laurentino Cortizo and promulgated in the Official Gazette on October 20, all on the same day.
“At this point, it is clear that the text of the modified contract did not have the prior and updated procedure that it required to be endorsed by the Comptroller General of the Republic,” González said in his letter to Judge López.
He also questions that the legislative commission on Commerce, chaired by PRD deputy Roberto Ábrego , requested the suspension and withdrawal of the law contract originally proposed by the Executive, so that it could make four modifications, on September 28, 2023. According to the attorney, the Assembly It can only approve or disapprove a legal contract (as already stated in the ruling of December 21, 2017). The Internal Regulations of the Assembly do not contemplate actions to suspend and withdraw a project so that the Executive can “correct” it, as the Commerce Commission did, led by Ábrego.
González estimates that the ruling on Sevillano’s lawsuit could occur before the end of the year.
“Time would allow for a decision to be made before the end of this year, with respect for the nine magistrates of the Supreme Court of Justice,” González said this Wednesday, November 1, during a civic event to mark the month of homeland, at the entity’s headquarters in Llanos de Curundú .
Sevillano’s was the first lawsuit against Law 406 presented and admitted. In total, there are around twenty lawsuits claiming the same thing.
The Attorney General, Javier Caraballo , has already sent his opinion to Judge Olmedo Arrocha, rapporteur of another lawsuit (the one presented by Martita Cornejo ), in which he concludes that the rule is unconstitutional.
The National Association of Nurses marched to the Court this Wednesday to deliver a letter from the president of the union, Elidya Espinosa, in which they asked to expedite these unconstitutionality demands.
The Attorney General of the Nation, Javier Caraballo , considered that Law 406 of 2023 is unconstitutional, because the National Assembly did not fulfill its role of approving or not the law contract in favor of Minera Panamá, but instead suggested to the Executive Body that it introduced a series of modifications.
According to Caraballo, in the face of a legal contract, article 159 of the Constitution dictates that the AN could only approve or reject the Executive’s proposal, but not alter its content.
Caraballo’s opinion was requested by Judge Olmedo Arrocha , rapporteur of the unconstitutionality lawsuit filed by Martita Cornejo against Law 406. There is already a similar opinion from the Attorney General of the Administration, Rigoberto González , on the same rule, but as part of the processing of another unconstitutionality lawsuit against Law 406, in this case, the one presented by lawyer Juan Ramón Sevillano.
Furthermore, Caraballo maintains that the bill did not have a due process of citizen consultation, as dictated by Law 125 of 2020, by which Panama adopts the Regional Agreement on Access to Information, Public Participation and Access to Information. Justice in Environmental Matters in Latin America, known as the Escazú Agreement .
In this sense, it adds that the AN violated Article 17 of the Constitution , after it approved the aforementioned contract law, failing to comply with international commitments adopted by Panama.
It also highlights that articles 200 and 242 of the Magna Carta were violated, in which municipal councils are empowered to approve or disapprove the collection of taxes or contributions, since the contract allows the mining company to grant exemptions from taxes and rates, when transferring profits to any of its subsidiaries.
Caraballo emphasizes that privileges are also granted to Minera Panamá (subsidiary of the Canadian company First Quantum), in contrast to article 19 of the Constitution , to acquire land without complying with the procedures provided for in the Public Procurement Law.
The decision on the Mining Contract is in the hands of the Supreme Court of Justice, a judicial instance that has received several lawsuits against Law 406.
The Chamber of Commerce, Industries and Agriculture of Panama (Cciap) maintained that the opinions issued by the Attorney General of the Nation and the Attorney General of the Administration on the constitutionality or unconstitutionality of Law 406 that approves the Mining Concession Contract, were very timely.
Therefore, the call by the Cciap to the Supreme Court of Justice (CSJ) is reaffirmed to rule in law for the national well-being in accordance with the situation the country is going through.
“After analyzing the different paths that have been proposed in the midst of this crisis, we responsibly reiterate that the judicial path is the most appropriate institutional path and that it will have the least impact on the country in terms of social, economic and political aspects. ”said Adolfo Fábrega, president of the union.
Fábrega in turn called on the National Assembly and the Executive Branch to allow the Judicial Branch to act legally and in a timely manner on this matter.
The business community believes that both the Executive and the Legislature should focus the debate on enacting a moratorium on the granting of mining concessions for both exploration and exploitation of those that are not operational, are in process, and new concessions; as well as the review and strengthening of the Mineral Resources Code.