Steps in the Supreme Court cases over the revised mining colony law

Rigo the admin prosecutor
Administrative Prosecutor (Procurador de la Administrción) Rigoberto González Montenegro, appointed in 2015 in a secretive process by then-president Juan Carlos Varela. Educated at Panama’s Jesuit USMA law school and in Spain, he teaches law at USMA and was a prosecutor and Public Ministry secretary general in the tumultuous times of Ricardo Martinelli, under attorneys general Ana Matilde Gómez and Giuseppe Bonissi. Photo by the Public Ministry.

The Supreme Court is in high gear, but it might still take a few days

by Eric Jackson

A reported eight or more constitutional challenges have been filed against the PRD’s Law 406, the far-reaching contract with Canadian-registdred First Quantum’s Panamanian subsidiary Minera Panama. The court has accepted five such cases. Ordinarily there would be a process of combining them into one for purposes of litigation.

As this is a challenge to a government contract, the task of rendering a prosecutorial opinion about the matter falls to Administrative Prosecutor Rigoberto González. He says that he has done the reading and research on the first of these cases, the one filed by attorney Juan Ramón Sevillano. He has announced that he will release his conceptual opinion on that to the high court magistrates, then to the public at large, by noon today.

One challenge, which alleges that Law 406 involves a criminal violation of the constitution, has been referred to Attorney General Javier Caraballo, who according to La Prensa has advised the court that the law is unconstitutional.

The ordinary process is that the conceptual opinions coming out of the Public Ministry officials get published in rabiblanco newspapers for three straight day and then anyone with an interest in the case has 10 days to file a brief. Other parties would have 10 days to respond. Then the magistrates would debate and rule. González says that the court would be able to rule sometime this year.

MEANWHILE, the president and legislatiure are pushing for a mid-December vote on the contract. The Electoral Tribunal, citing the black letter law of the constitution, has noted that no referendum may be held six months before or six months after a national general election, so strictly speaking a “referendum” at that time is not legally possible. But the PRD is now calling it a “consultation” whose result it would respect. Notwithstanding that, the Electoral Tribunal magistrates say that it isn’t practical to schedule and hold a snap election in that time frame.}

Are there ways around those legal time traps? Sure there are.

The Electoral Tribunal, in charge of all things electoral, could rule that a vote as proposed by the PRD is improper and impractical and they won’t do it — then leave it to someone unwilling to accept that to go to the Supreme Court and work with its time frames.

The Supreme Court could issue a summary order, pending arguments and the untangling of this mess. As the first contract was ruled procedurally unconstitutional and on the score cited this redux is no different, they might summarily rule that the issue has already been decided and the new law is suspended until further notice. Without getting into that res judicata argument, the court might otherwise stay implementation of Law 406 while the cases are being consolidated and argued.

The great fear among the mine contract’s opponents is a “consultation” that gets used to override the courts and the constitution. Gauging public opinion by polls and by attendance at protest activities, it ought to be reasonably easy to muster a majority to vote against the mine contract. But already there are voices, mainly out of the sectarian left, saying that a “referendum” or “consultation” is against the law and amounts to a political trap, so would boycott the vote and allow the PRD and First Quantum to win it on a very low turnout.


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