Unconstitutionality and derogation before the lawyer’s opinion

“ROMAN, Alejandro, in comments on the opinion of the state attorney on revocation: Every interpretation is a challenge to present a grounded, coherent and sustainable alternative, given the need to apply the norm to reality (sic). What we do not share is that the above-mentioned regular (Article 159, number 15) regulates, In addition, an exception to the humiliating power of the National Assembly (sic) In our opinion, this regular does not contain an exception to the humiliating power of the Assembly (sic) Impeachment and constitutionality: These are two different things that have different causes, purposes and powers.

The constitutionality of the law does not condition or prevent its repeal. Except for the cases mentioned in your opinion, derogatory That is not the function of the Court. It is true that in the case of mining contracts, the application of this authority must be as rigorous and prudent as possible, so as not to spoil Panama’s options in the event of eventual arbitration.”

MUÑOZ F., Álvaro, in Consultations on Legal Sustainability for the repeal of the law which authorized the law of contract: “That under the same general principle, to which the lawyer refers, which says “that things are void in the same manner in which they are made”, Law 406 may be repealed (… ) in three on different days, as authorized, without the consultation established by the regulations, the law and the Escazú Convention and thus correcting the grave error committed, and also for reasons of public and social interest.”

GUERRA, Ramiro, in analysis Lawyer’s opinion: “The constitutional basis of the lawyer’s opinion arguing that it is not feasible to repeal Law 406/23, it is very fragile, forced, unfortunate and inappropriate, not to say null or non-existent. Previously, the Assembly repealed contract laws (Law on contracts for the construction of the Rodman port, Bill No. 2 of February 10, 2015). I insist, Law 406 would be repealed. The mining concession contract follows the fate of the main thing, and then when the Law is repealed, the contract is considered non-existent. The same would happen with the verdict on unconstitutionality, thus the contract as such would be thrown out of the legal world.”

BONILLA G., Hernán A., in Letter sent to the Attorney General in November 20. 2023: “I am saddened by your response to the Executive in which you indicate the legal impossibility of repealing the nonsense called Law 406. And I say that I am saddened, because you know that the said law was issued in gross violation of the prescribed legislative procedure, because it did not and could not fulfill all the conditions prescribed by the constitution, so that in the end it acquires the rank of law of the Republic.”

MORAL WAR, Silvio, in Cortiz, the crisis can be over in three days: “(President Laurentino Cortizo, stop the roadblocks and all this now. Introduce yourself a bill that repeals Law 406 and in three days it will be solved,” Guerra said this Wednesday on ” Cover” La Estrella de Panamá.

The criminal lawyer analyzed the different legal scenarios of the case, where he shares the view of the lawyers who consider it valid, both waiting Supreme Court of Justice such as the termination of a contract right. While the first is subject to the procedural conditions of these requests and could be extended until the end of November, the second would be an immediate response to the population’s requests, Guerra indicated.

He also rejected the thesis that impeachment weakens the Panamanian state before arbitration against The first quant, owner of Minera Panamá shares. According to Guerra, the Assembly is fully empowered to annul the treaty and believes that there are political movements that have favored a solution with the Court to the detriment of the current solution of annulment.

“The abolition project reached the third debate in the Parliament, but the theory of a conspiracy against national interests began to circulate, that the mining company, if it is abolished, will sue us and they assumed that we will be condemned. There are many obligations with the mining corporation, there are local and foreign economic powers conspiring against any decision on unconstitutionality or derogation,” he said. Although Guerra believes that the Court should rule on unconstitutionality, if the opposite happens, the Assembly would be bound and unable to annul the treaty” in La Estrella de Panamá newspaper, front page, November 11/23.

For my part, as you can see, by chance, I agree with the opinions of my distinguished colleagues, and I previously warned that Law 406 can be repealed by another law, because it is supported by good friend Rigoberto González, that it is not possible to abolish it by another law, I admit how much I would like to know, categorically, what is the constitutional basis, which is not expressed or even indicated, which expresses or prescribes that the Parliament is completely neutered the possibility of issuing a law to abolish a legal contract. In other latitudes, we could already notice how parliaments repeal laws approving this type of contract when, in their execution, they clearly and obviously contradict public order, social peace and domestic peace, the general well-being of the population, their health, ecological or environmental system, social interest , in short.

On the contrary, after the absence and non-existence of a norm with constitutional status that stipulates that the Parliament is prohibited or forbidden to enact laws to repeal another law, we must necessarily conclude that the analysis of a good friend Rigoberto González was left without constitutional support.

Well, if you want to know even more about my criteria or my legal thoughts on this declaration of legal unsustainability, which was made by the Attorney General in his response dated November 20, 2023 and sent to the Minister of the Presidency, lawyer José Simpson Polo, it is necessary for me to clarify and specify the following:

1. It is just a mere criterion Dear lawyer. I have argued that before. It is an opinion that is not binding, that is, it does not oblige the subject or the person being consulted, in any way, to adhere to or respect it; When we say in the Law that the expressed opinion is not binding, we mean that it cannot have major legal effects because it is not a judgment, nor an order that has such a feature, but a mere assessment of the state attorney.

2. However, the opposite of legal opinion of a lawyer, ut supra, we quoted some famous lawyers and constitutional defenders, adding, as a criterion also of enormous constitutional legal authority, a very famous professor, Dr. Miguel Antonio Bernal, who, in the same line of thought, has already expressed himself, supporting the criterion that it is feasible, through the law, repeal Law 406.

It is my inalienable duty to teach, as I have done all my professional life. This can’t stay in front of lawyers and especially in front of law students, as a certain or indisputable criterion. Therefore, also for history, I note the reasons for which I do not agree with the criteria of the famous constitutionalist Rigoberto González.

In connection with a long-awaited verdict or sentence unconstitutionality of the request that remain on the Court, I indicated that it must be an undeniable and categorical condemnation of unconstitutionality, but, also, within the framework of speculation and pain, I must consider the remote possibility that they say the opposite.

That is, for the Court to declare the constitutionality of Law 406 or to leave the law alive in any way. mining concession company. It would happen, then, that the Executive will never have, as already shown, any political will to present the project to repeal Law 406, since it has shown, without any pain or remorse, that its unconditional ally, the best, of all is corporate mining. And now less, given that it already has approval Lawyer for unviability to justify reluctance not to repeal Law 406.

God bless the country!