The Plenary Session of the Supreme Court of Justice (CSJ) had no doubt that the Law 406 contract, which allowed exploration and exploitation of the Cobre Panamá mine, is a constitutional conflict considering first that it violates the fundamental rights of life, health and of a healthy environment, free of contamination, for the Panamanian population.
Another element of conflict – which the magistrates highlight – is that the contract contradicts the values of social welfare over private interest that the Constitution promulgates in its articles 50, 257, 258 and 259.
They add that these fundamental rights, enshrined in the Political Constitution of the Republic of Panama, in its Articles 17, 109 and 118, are supreme values of the population compared to particular interest.
“Which was superimposed on the approved contract, with the censored law, ignoring that these rights enjoy a special category,” states the ruling of November 27, 2023, released publicly today.
Another point on which the nine judges of the Court agree is that the public’s right to be informed in an effective, corresponding and timely manner was violated.
After a thorough analysis of the arguments of the first two unconstitutionality lawsuits filed against this contract law, the nine magistrates conclude that exceptional cases of public procurement do not contemplate the possibility of waiving or excepting the public bidding procedure, for the participation of different bidders, in terms of administrative concession for mining exploitation.
“The public procurement rules guarantee the principles of transparency, effectiveness, publicity, efficiency and equal opportunities with respect to the different bidders who participate in the contracting or selection of contractors,” the judges point out.
Consequently, they warn that Law 406 did not adjust to the concessionaire selection mechanism. The magistrates argued that it constituted an affront to the separation of powers that, in the face of a declaration of unconstitutionality by the CSJ in 2017, a contract was negotiated incurring the same errors.
According to the nine magistrates, the contract also did not comply with the requirements prescribed by the general environmental law, which is why it conflicts with Article 257 of the Constitution.
The legal contract – according to the ruling – lacked an updated Environmental Impact Study (EIA), which would allow evaluating the mitigation forecasts of a project of such magnitude, which results in environmental prejudices.
There is no res judicata
The arguments of jurists who argued that the claim of unconstitutionality against the contract was the subject of double jeopardy were rejected. This considering doctrines and international standards that demonstrate that there are exceptions in the matter.