Analysis of the Crisis that has Immobilized Panama

The massive protests against a contract for a mining concession in Panama are “a clear and evident manifestation that the Panamanian population is in charge,” says lawyer Giovanni Olmos, a legal consultant and specialist in criminal and environmental law in that country. The protests demand the revocation of the contract between the State and Minera Panamá, a subsidiary of the Canadian First Quantum Minerals, to exploit the largest open pit copper mine in Central America for 20 years, extendable.

In an interview with Carlos Fernando Chamorro on the La Tertulia program, the former environmental crimes prosecutor of Panama assured that the mining company has been working in an area of the Mesoamerican Biological Corridor for 26 years, generating a “very strong impact on the environment.” However, Parliament, through an express procedure, approved the contract for a mining concession in Panama, known as Law 406, which was ratified by the Executive and triggered large scale protests in the canal country since October 20.

“What we attack from an environmental legal-technical perspective is that no complete (category three) environmental impact study was presented, valid in real time, of all the impacts that have been generated. There are many complaints, videos showing a lot of pollution, and poor management of solid, liquid, and gaseous waste,” Olmos denounced.

Likewise, he said that the deal with the mining company also violates the Escazú Agreement, which precisely ensures access to information, public participation, and access to justice in environmental matters in Latin America and the Caribbean.

The status of the mining concession contract in Panama

The country’s president, Laurentino Cortizo, said on November 3 that he is waiting for the ruling of the Supreme Court regarding several lawsuits claiming the controversial mining contract is unconstitutional.

“With due respect for the separation of the powers of the State, we await the ruling of the Supreme Court of Justice,” said the Panamanian president.

The Supreme Court of Panama has admitted numerous suits for unconstitutionality against the contract. One of them is more advanced than the rest and both the Attorney General and the Public Ministry (Office of Administration) have expressed the opinion that this mining pact is “unconstitutional.

Environmentalists and jurists allege that a ruling of unconstitutionality by the Court, the highest body of justice, would put the State in a more advantageous situation in the face of a possible future international lawsuit by the mining company for breach of the mining concession contract.

Olmos questions the Government for originally “coming out to defend a contract”, which promised minimum annual income of 375 million dollars. He hopes that the population’s demand will be heard and that on November 6, the Government will call for a national dialogue with various sectors to find a solution to the crisis, in addition to waiting for the Court’s ruling.

What is the size and scope of these protests? We have seen images of massive mobilizations, has there been a national strike or are they just mobilizations?

This is unprecedented. It is a mobilization, a peaceful protest. There are some people who want to take advantage of the situation, but it is a peaceful demonstration. The flag has been flown in the capital city, but also in the country’s interior. At the same time, many Panamanians are organized in all the provinces, they come out with the flag to demand environmental justice. They demand that they stop adopting policies that truly surprise everyone when laws of this nature are approved and signed immediately. The people are telling the small group of people who govern: “We am the sovereign ones, We are the ones who decide and you are going to do what you have to do… you are going to do it.”

Who is behind these protests? Do you have a profile of a social movement, is there a political characterization? And I ask you this because elections are going to be held soon in Panama (May 2024).

I am not a politician. There are politicians who are obviously giving their opinion, but that is a minimal part of the conglomerate of Panamanian voters. It is something spontaneous, it is a feeling, it is something altruistic, it transcends any political aspiration. This is a clear and evident manifestation that the one in charge is the Panamanian population that is shouting to a small group of businesspeople, to a tiny group of the Government, which does not even reach a hundred people, telling them: “gentlemen, we know what we want.” “that with great responsibility this contract law be analyzed so that it is revoked as appropriate, according to the law, according to the conventions and international trade agreements.”

President Cortizo, faced with this crisis and the protests, announced a moratorium on future concessions and asked the Assembly to call a popular consultation on December 17 to decide on the repeal of the law under protest. Is this query viable? What reaction did the protest movement have to this?

I think this consultation will not succeed. It’s not going to be effective. I believe that this discussion is useless because the contract is already law. Since the contract law exists, taking it to a consultation is not the way. I believe that here, what is going to give weight to all this so that we do not have problems with international claims and arbitration, is going to be what the Supreme Court says. In addition to what the Public Ministry does to determine possible environmental damage…

This referendum proposal is not applicable, because it would have to be proposed before a public consultation, a law. Everything must be before and not after, when it is already approved. It seems like a contradiction to me.

This law was approved in 72 hours, there was a national debate, there was a warning about the consequences it would have. The Government said that under the concession the mining company was going to make investments of more than 370 million dollars annually and that it was also going to benefit the community in that area where the work is carried out.

Yes. They have made a significant investment. The numbers are managed by the Minister of Commerce and Industry and some information that the citizens have. To me, that contribution is not real, it is not consistent with the damage that has been caused to natural resources in a sensitive area in the Mesoamerican Biological Corridor and I believe that Panama deserves more.

Furthermore, it (the company) has been operating without permission, without a concession, operating without any instrument. Well, now, with the new contract (…) it is generating billions and billions of dollars for the company itself, but for Panama, in addition to the environmental damage, the social damage and the damage that is being caused to the country per se, we are not really getting what we deserve.

Who supports this project? You have said that it is a very small group from the Government, from the business sector. Do national and foreign investors support the development of this mining project?

I say that it is a tiny group, because those who govern are people who were chosen. But the one who rules are the people. Those who should have come out to defend the contract are the company and the lawyers who they paid millions in fees. But the Government itself should not have come out to defend a contract that, in the opinion of the majority of commercial and contract experts have said is illegal, unconstitutional.

The Ministry of Commerce and Industry, the Ministry of the Environment, the Presidency itself. It doesn’t seem to me that they are the ones who should come out and defend the contract. The State is the one that has to set the conditions, not the company. Yes, I think it has also not been seen very well that it is the same Government that comes out to defend a contract, which has already been said to be illegal.

Two attorneys of the nation – the attorney for administration and the attorney general – in the two lawsuits that are most advanced have said that the contract law is unconstitutional and have even said that the Escazú Agreement was violated, in addition to other regulations. It is not that the people are wrong. They are the ones who are wrong.

What is expected in Panama on Monday (November 6^th), when a sort of national holiday break ends? Are the protests going to continue? Is there a possibility of establishing some dialogue or are they waiting for a decision or resolution from the Supreme Court?

First, the Court’s ruling. Second, the dialogue. I think that the central government, the president, should call all sectors, the experts in international commercial arbitration, the constitutionalists, jurists, economists so that on Monday a sensible, honest dialogue begins, seeking a solution among all. If the Government was the one that incurred this, well, I believe that we can all be supportive, and the experts can support the Government. On Monday I hope that the Government will call a meeting with civil society, with all the sectors that have to do with this issue of the contract-law.

This article was originally published in Spanish in Confidencial and translated by Havana Times. To get the most relevant news from our English coverage delivered straight to your inbox, subscribe to The Dispatch.