Court Rejects Mining Plebiscite
. 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
Mining Company Victory.
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.
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