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Court Rejects Mining Plebiscite
Infopress Central American Report
6/1/2007

. Constitutional Court rules popular consultation was unconstitutional

. Insiders: mining company influenced court ruling

The Constitutional Court (CC) has ruled that the municipality of Sipacapa's decision to ban mining company Montana Exploradora from operating in the community was unconstitutional - despite locals rejecting the firm's mining licenses in a June 2005 plebiscite ( consulta popular ). A court insider has accused the court's former president Alejandro Maldonado Aguirre of bias in favor of the mining industry, and has cast doubt over the fairness of the ruling. Environmentalists and indigenous groups, which have fought tooth and nail to ban open pit mining throughout the country, now fear the case might set a precedent and will be used to nullify future plebiscites.

Mining Company Victory.
On May 8, the Constitutional Court (CC) announced that it had ruled in favor of an appeal put forward by Canadian-owned mining company, Montana Exploradora, claiming that the Sipacapa plebiscite was unconstitutional.

The CC argued that according to Guatemalan law, only the Ministry of Energy and Mining (MEM) can decide on the government's energy policy. The court therefore ruled that the Sipacapa municipal authorities had no right to forbid Montana from operating in the area.

The CC ruled that as the referendum only included voters from the municipality of Sipacapa, in the Northern department of San Marcos, its outcome only held sway over that community. The ruling implies that plebiscites held by local communities can be used by the government to gauge public opinion on a particular issue, but are in no way legally binding.

The ruling comes one year after the CC ruled that the Sipacapa referendum was in fact legally binding - however, this earlier ruling was never made official due to administrative irregularities.

The CC's latest ruling contradicts both the Municipal Code and the Law on Community Development Councils ( Ley de Consejos Comunitarios de Desarrollo, COCODES ) which provide a legal framework for the plebiscites.

In order to "resolve" this legal imbroglio, the CC recommended that Congress reform the Municipal Code, so as to clarify that plebiscites are non-binding. The CC also suggested that Congress clarify which government bodies can call for plebiscites and who can vote.

Environmental organization Colectivo Madreselva , dismayed by the ruling, said it feared the Sipacapa case could set a precedent for future plebiscites.

Undaunted by the court's latest verdict, local communities have vowed to oppose open pit mining and have continued to hold plebiscites on the issue in open defiance of the CC's ruling.

On May 12 this year, four days after the CC announced its ruling, the municipality of San Antonio Huista held a referendum in which voters unanimously rejected an open pit mining project in the area.

A Biased Judiciary According to critics, many CC judges have vested interests in the mining issue as they often also work for legal teams representing multinational corporations. For instance, former CC president Alejandro Maldonado Aguirre also works for Diaz-Duran and Associates. As well as representing the US Embassy and the US Chamber of Commerce (AMCHAM), the firm also represents the US/Canadian mining company Glamis Gold Ltd. Glamis operates in Guatemala through its subsidiaries Entremares and Montana Exploradora S.A. (the company that appealed against the first CC ruling which had upheld Sipacapa's plebscite.) According to CC insiders, Maldonado Aguirre strongly influenced the CC's ruling under pressure from Montana. Maldonado Aguirre counted on a network of allies within the CC which included Roberto Molina Barreto (a judge with strong ties to President Berger), Roderico Pineda (of the far-right Guatemalan Republican Front (FRG) party), and current CC president Mario Perez Guerra (who has been described as a weak-willed individual strongly influenced by Maldonado Aguirre). On the whole, the current Constitutional Court is seen to be highly politicized and critics argue it has been hijacked by corporate interests. Maldonado Aguirre was also accused of delaying a CC ruling rejecting an appeal put forward by the three men found guilty of the Gerardi murder. Maldonado Aguirre was accused of deliberately delaying the sentence in an attempt to protect the three men, who served under the Arzu administration. Maldonado Aguirre and Arzu, who has been voted mayor of Guatemala City for two consecutive terms, are both prominent figures in the center-right Unionist Party (Partido Unionista, PU), and inside sources have revealed that Arzu has used his political clout and his connection with Maldonado Aguirre to delay the court's decision (CAR XXXIV, 17).