The Supreme Court of Justice, convened in Full Bench, declared on December 21, 2023 that constitutional res judicata exists with respect to Law No. 406 of October 20, 2023, the law that approved the mining concession contract entered into between the Panamanian State and the company Minera Panamá, S.A. The decision, unanimous and authored by reporting justice Ángela Russo de Cedeño, did not address the merits of the matter: the Full Bench had already pronounced the unconstitutionality of that same law through a resolution dated November 27, 2023, published in Official Gazette No. 29922 of December 2, 2023.

The case resolved on December 21 corresponded to an unconstitutionality action filed against Law 406, in which the allegedly infringed provisions included, among others, Articles 19, 259, and 163 of the Political Constitution. The arguments of the petitioning party held that the mining concession was not grounded in social welfare or the public interest, as required by Article 259 of the Constitution for any concession over land, the subsoil, or natural resources; that it granted asymmetric privileges not recognized to any other company contracting with the State, in contravention of Article 19 on equality before the law; and that the National Assembly had enacted a law contrary to the letter or spirit of the Constitution, in violation of Article 163.

The Attorney General of the Nation, Javier Caraballo Salazar, had also requested in Prosecutorial Opinion No. 11 of November 13, 2023, that the unconstitutionality of Law 406 be declared. The Public Ministry expanded the list of superior norms allegedly violated: it identified infringements of Article 159, paragraph 15 — which governs the legislative procedure for contracts that commit national assets — of Article 46 — the principle of non-retroactivity of the law — and of Articles 4 and 17, the latter two in connection with the international commitments assumed by Panama upon ratifying the Escazú Agreement (Law No. 125 of 2020), whose requirements for public participation in environmental matters were allegedly bypassed when Bill No. 1100 was introduced without submitting the new contract text to public scrutiny.

Law 406 was enacted on October 20, 2023, following a legislative process that completed its three debates in just three days — October 18, 19, and 20 — and was published in Official Gazette No. 29894-A of that same day. The contract it approved granted Minera Panamá, S.A. the concession for mining operations in an area of the province of Colón, with clauses that, according to the plaintiffs and the Attorney General, included a guaranteed minimum income for the State that was not immutable, mechanisms for termination of the contract due to State non-compliance, recognition of a 2011 environmental impact assessment without requiring an updated one, and the forgiveness of tax obligations corresponding to fiscal years 2021 and 2022.

Upon finding that the Full Bench had already ruled on the constitutionality of that law, the Court applied Article 206 of the Political Constitution, which establishes the final, definitive, and binding nature of its rulings, and declared constitutional res judicata without proceeding to a new analysis on the merits. The December 21 resolution was signed unanimously by all nine justices of the Full Bench. Case file 116463-2023 acquired executory force on January 30, 2024. The decision confirms that the set of unconstitutionality actions filed against Law 406 — several of which continued to be filed with the court even after the November 27 ruling — was resolved, in all instances, by the expansive force of that first declaration of unconstitutionality.