Wednesday 29th November 2023

November 28, 2023


The Supreme Court of Justice (CSJ) declared Law 406 of October 20, 2023 , which adopts the contract between the State and Minera Panama, unconstitutional.

The decision was announced on the morning of this Tuesday, November 28, 2023, through a message offered by María Eugenia López Arias , presiding judge of the CSJ – and accompanied by her eight colleagues – from the Cassation Chamber of Judge Gabriel Elías Fernández Madrid, in the Gil Ponce Palace of Justice, located in Ancón. This statement was published on the Judiciary’s YouTube channel.

“As president of the CSJ, I inform the face of the country that the judges who make up the plenary session have unanimously decided to declare the entire Law 406 of October 20, 2023 unconstitutional. The above means that the aforementioned law is expelled from the system. regulations that govern the country. We have instructed the secretary general to, in accordance with the Judicial Code , proceed to make the corresponding notifications. Once the sentence is enforceable, it will immediately be sent for publication in the Official Gazette ,” said Judge López Arias.

The nine judges of the Supreme Court had declared themselves in permanent session last Friday, November 24, to analyze two of the lawsuits filed against the rule. These are the lawsuits filed by lawyers Juan Ramón Sevillano and Martita Cornejo Robles .

Judge López Arias acted as speaker, but as it was a plenary session in permanent session, the participation of the judges was collective.

It must be remembered that the contract with Minera Panamá was authorized by the Cabinet Council on October 10, 2023; endorsed by Comptroller General 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.

Since the approval of the law and publication in the Official Gazette on October 20, Panama was immersed in an economic and social crisis conditioned by road blockades and demonstrations. at the national level.

These are the key points of the operative part of the ruling announced by María Eugenia López Arias, presiding judge of the CSJ -and accompanied by her eight colleagues- from the Court of Cassation Judge Gabriel Elías Fernández Madrid, in the Gil Ponce Palace of Justice, located in Ancón.

In its operative part, the plenary session of the CSJ specifies that Law 406 of October 20, 2023, which approves the mining concession contract between the State and the company Minera Panamá SA, is “unconstitutional.”

After carrying out an “integrated review” of said law, the magistrates indicated that the regulations violate 25 articles of the Constitution of the Republic of Panama.

“ For the Plenary of the Supreme Court of Justice, there is no doubt that we are in the presence of a constitutional conflict of a specific type, in which in this case the fundamental rights of the Panamanian population are confronted, such as the right to “life, health and a healthy environment free of pollution, which come into collision with the particular interest arising from private investments that seek economic growth ,” the document says.

Also for the plenary session of the CSJ, the contradiction that exists when the values ​​recognized in articles 50, 257, 258 and 259 of the Constitution that establish State rights that generate “social well-being” are contrasted with the interest particular that will be reflected in the contract law reason for this unconstitutionality.

In this context, “a clash” is mentioned between the fundamental rights to life, health and a healthy and pollution-free environment provided for in articles 17, 109 and 118 of the Constitution, which contain supreme values ​​of the population against the particular interest that is recognized in article 182 of the Constitution, which was superimposed on the contract approved with the censored law, ignoring that these constitutional rights enjoy a special category.

The magistrates also argued that it constitutes an “affront” to the separation of powers that, in the face of a declaration of unconstitutionality by the CSJ in 2017, a concession contract was negotiated making the same mistakes; And it is striking that in the new contract converted into Law 406 of October 20, 2023, the previous contract is even mentioned, as if the previous ruling of unconstitutionality had not been issued.

In turn, he questioned what was done by the Commerce and Economic Affairs Commission of the National Assembly, when making recommendations to modify the mining contract, since that action created a procedure in the established procedure, which is not “legitimized,” as deviate from the constitutional mandate provided in article 159, which only allows the contract to be approved or disapproved.

“These actions led to the presentation, subsequently, of Bill No1100, which after approval became the law in question. Which makes it evident that the National Assembly ignored the public powers conferred by the fundamental statute to approve a contract to which the State is a party, exceeding the limit set to exercise public power and also disregarded the supremacy of the Constitution and the principle of normativity, by not framing its actions in the legal system ,” states the ruling of the CSJ.

The CSJ ruling also referred to the fact that the mining concession was approved on the basis of an environmental impact report; which, in addition to not being recent (2011), and therefore, not containing updated information on the ecological situation in force at the time of its celebration, fails to comply with the regulations issued by the State, with the objective of providing effectiveness to the right of access to information on environmental matters, signed through the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement).

Thus, the magistrates agree that this law contract is absent of elements that distinguish any legal relationship, derived from an administrative contract, between the State and an individual; On the contrary, they consider that it has been demonstrated that the State is the one that is “legally subject” to the individual, in the face of the granting of priority treatment that “does not impact the public interest or social well-being.”

The nine judges of the Supreme Court had declared themselves in permanent session last Friday, November 24, to analyze two of the lawsuits filed against the rule. These are the lawsuits filed by lawyers Juan Ramón Sevillano and Martita Cornejo Robles.

Judge López Arias acted as speaker, but as it was a plenary session in permanent session, the participation of the judges was collective.

Over the past few weeks, the country’s attention has been focused on the Court. Environmentalists, teachers, construction workers, artists, farmers, students, indigenous groups, lawyers, academics, among others, held vigil in front of the Gil Ponce Palace of Justice, located in Ancón, to demand the unconstitutionality of the contract.

The company Minera Panamá, a subsidiary of the Canadian company First Quantum Minerals, reacted, after the ruling of unconstitutionality announced earlier by the Supreme Court of Justice (CSJ) of Law 406.

“The company wishes to express that it respects Panamanian laws and will review the content of the ruling to understand its foundations,” it highlights in a statement.

He reiterated that they have operated in a manner “consistent with transparency and strict adherence to Panamanian legislation.”

He recalled that the contract approved through Law 406 was the result of a “long and transparent negotiation process.”

He also emphasized that the mine makes an economic contribution that exceeds 50 million dollars per week and provides direct employment to 7 thousand people.

The President of the Republic, Laurentino Cortizo , reacted to the ruling of unconstitutionality issued by the Supreme Court of Justice on the mining contract, stating that he will abide by the decision made.“As President of the Republic, always respectful of the separation of the powers of the State and our Constitution, I receive and abide by the decision of the Supreme Court of Justice, expressed in its ruling today, on Law 406 of the mining contract,” the president wrote on social network X.

Earlier, the Minister of Government, Roger Tejada, stated that it is now up to the Government to study the ruling of unconstitutionality.

“Now we have to know and study the decision. What are the conditions, the parameters; including under what actions or regulations they established this unconstitutionality,” Tejada stated on TVN Noticias .

Tejada said that the President of the Republic, Laurentino Cortizo, will be responsible for taking the measures and issuing instructions to the Minister of Commerce and Industries after the decision is known.

In recent days, the company First Quantum, parent company of Minera Panamá, informed the Ministry of Commerce and Industries about two notifications with the intention of presenting arbitration claims against Panama.

The presidential candidates reacted to the ruling of the Supreme Court of Justice in which Law 406 of October 20, 2023 , which adopts the contract between the State and Minera Panamá, was declared unconstitutional.

Rómulo Roux, candidate of the alliance “For a Better Panama, #LoBuenoViene” of Cambio Democrático and Partido Panameñista, said that this ruling should allow progress towards a concrete solution to the problem and a way out of the chaos in which the country finds itself.

In addition, he asked for the resignation of the state ministers. “We propose, again, a change of Cabinet,” he said in a message on his networks.

Roux also advocated for the reopening of the roads. “There is no excuse to keep Chiriquí, Bocas del Toro and the rest of the country hostage,” he said while requesting the creation of a special commission made up of experts to continue with the process that will define the future of the mine.

The presidential candidate Ricardo Lombana, from the Other Path Movement, also joined the voices calling for the resignation of the ministers.

“The first two resignations that should already be on the table are those of the Minister of Commerce and the Minister of the Environment. “They are not worthy of the position and must retire immediately,” he wrote on his social networks.

Meanwhile, candidate Martín Torrijos, for the Popular Party, said that what is up to the Government is to “amend its mistake.”

“The closure of the mine will be a long and complex process. The government undermined the trust of Panamanians and that is why it will require the involvement of civil society, specialists from different branches and international technical support,” he indicated in a message sent.

The official candidate, José Gabriel Carrizo, of the Democratic Revolutionary Party (PRD), and current vice president of the country, also reacted. He assured that they have been and will be respectful of democratic institutions. “Both the PRD and I respect the separation of powers and comply with what justice dictates. On a historic day like today, November 28, what we have to do once again is defend Panama and achieve the best for our country,” he assured.

Meanwhile, candidate Ricardo Martinelli, from Realizing Goals, said that the people spoke and said no to the contract.

“Vox populi vox Dei means The voice of the People is the voice of God. The people of a sovereign nation have said loud and clear to the mining concession contract. Now it is up to all of us to move forward together, always thinking about Panama,” he said.

For her part, the free candidate Maribel Gordón said that the entire crisis in the country is the result of a Government that does not address social interests.

She also assured that “it was not the Court that declared the law unconstitutional, it was the people in the streets.”

“The unity of the people managed to defend the sovereignty of the country,” she added.

Zulay Rodríguez, presidential candidate by free nomination, also gave her opinion.

“This is a victory for the Panamanian people in the streets, who kept the faith and fought until the end. Now, we must remain vigilant, demand the government to initiate an orderly closure of the mine and remain alert to possible retaliation measures by Cobre Panamá,” she indicated.

For his part, Melitón Arrocha, presidential candidate by free nomination, assured that the Supreme Court of Justice fulfilled its constitutional role and now it is up to us to abide by its ruling.

“We renew hope that peace returns to the streets and we celebrate our rule of law,” he wrote on his “X” social network account.


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