The resolution of the Constitutional Court (CC), in the case of the San Rafael mining company, generated controversy. The ruling, of more than 550 pages, has been criticized by lawyers, businessmen, economists and business chambers after being made public. We present you with eight questions against the decision of the Court.
1. It is contradictory
The Constitutional Court (CC) issued a resolution that contradicts the ruling issued in the case of the Oxec hydroelectric plant , which, it is supposed, would determine the way to rule in cases related to Convention 169 of the International Labor Organization ( ILO). That is to say, the CC for mines interprets the Convention and for hydroelectric plants in a different sense.
2. Does not set a deadline for the indigena consultation
Although the Court orders the Ministry of Energy and Mines (MEM) to carry out an indigenous consultation, in accordance with Convention 169, it does not set a deadline for compliance with the provision, as it did in the case of Oxec . Even the MEM can not consult San Rafael Las Flores, Santa Rosa, until the resolution is final. Minister Luis Chang did not dare to give a term.
3. Resolve took more than 300 days
Minera San Rafael, a third party affected in the case, had to wait more than 313 days to hear the final decision of the Constitutional Court. The deadline to resolve the amparo definitively exceeded, by far, the legal term established by law. In addition, in the time it took to resolve, the indigenous consultation could be carried out.
4. It did not allow the mining company to operate
Unlike Oxec's resolution, where the hydroelectric plant was allowed to resume operations, and at the same time carry out the indigenous consultation, the San Rafael Minera is not allowed to restart operations . Convention 169 does not establish suspension of activities for lack of consultation, even so, the Court confirmed the temporary suspension established by the Supreme Court of Justice, in mid-2017.
The magistrates of the Constitutional Court argued that the delay in the resolution was due to the fact that more than 8 thousand pages were analyzed. 5. More risks of dismissals
The delay of the CC, added to the fact that it can not operate for more than 425 days, led to the Minera San Rafael will make three massive layoffs so far in 2018, which meant the loss of more than 700 formal jobs. The company has indicated that, while they can not operate, there is a risk of more layoffs. Only 321 employees are kept in the mining company's worksheet .
6. Growth estimate
The Bank of Guatemala (Banguat) warned that for each quarter that San Rafael mining still does not operate, it subtracts 0.3 percent to the projection of economic growth . At the end of July, Banguat adjusted the economic growth forecast for 2018 downwards, and among the reasons, indicated the effect that the closure of the mining project has had since July 2017. The new growth projection was set between the range of 2.8 and 3.2 percent, but could change after the resolution of the CC.
7. Lack of legal certainty
The resolution, contained in more than 500 pages, according to employers and business chambers, does not generate legal certainty , because if an action is filed against an investment, they do not know what the Court's position will be, if it comes to know the case.
8. Losses for the State and the economy
The suspension of Minera San Rafael also meant a blow to the State and the country's economy. Daily losses are estimated at Q5.1 million. The company has mentioned that the State has stopped collecting Q440 million in taxes and royalties (until the beginning of August 2018) and, more than Q2 billion are those that have been lost in the economy , in payment of suppliers and salaries , among others.