After several years, the ruling of the Supreme Court of Justice (CSJ) was published by which it declared unconstitutional Law 9 of February 25, 1997, by which the contract between the Panamanian State and the mining company Petaquilla, SA was approved.
The decision of the CSJ in this regard was issued in December 2017 and responded to a lawsuit of unconstitutionality filed by the Center for Environmental Advocacy (CIAM).
According to the claim of unconstitutionality, the law by which the contract between the State and Minera Petaquilla was approved violated articles 4, 17, 19, 46, 50, 118, 159, 184, 257, 259, and 266 of the Constitution of the Republic of Panama, and articles 11 of the San Salvador protocol and 12 of the International Covenant on Economic, Social and Cultural Rights.
The lawsuit indicates that the contract was approved despite the fact that when it was signed the regime for the concurrence of economic agents provided for in Cabinet Decree 267 of 1969 was in force, which was unknown in the process of negotiation and signing of said contract.
The CSJ confirmed in its ruling that at the time the contract was signed and approved, Cabinet Decree 267 of August 21, 1969 on the special legal regime for the granting of mining concessions in the area of deposits of Petaquilla, Botija and Middle River.
“As observed by the Plenary, the contract approved by Law 9 of 1997 was not made based on said regulations, nor was it made in response to General Law 56 of 1995 on Public Procurement in force on that date, where although authorized the exception of public bidding, this was only accepted in the case of contracts authorized or regulated by the special law, which is not the case of the contract between the State and Minera Petaquilla, as there was no special applicable law that would determine such an exception “, points out the Court’s ruling.
In addition, it indicates that the approval of the contract is not inadmissible either in the light of numeral 15 of then article 153, today article 159, since it is its wording indicates that the Assembly acts to approve or reject contracts in which the State when its celebration was not regulated.
“It is evident that the contract when submitted to the approval or disapproval of the National Assembly had to be scrutinized in order to determine if it was in accordance with the legal regulation related to the applicable State contracting procedure,” reads the document.
In this sense, the Court considered in its decision that the law violates articles 17, 32, 159, 257, and 266 of the Constitution, in which the rigors were not complied with.
Minera Petaquilla changed its name to Minera Panama, after several sales.
On September 1, the National Government and Minera Panama set up a table to negotiate a new contract for the extraction of metals in Donoso.
