Luis Alberto Huerta Guerrero
Professor of Constitutional Law Pontificia Universidad Catolica del Peru
Mining is very important for the country. However, it also has caused problems related to fundamental rights such as health and the environment balanced and appropriate, giving rise to serious social conflicts. It is therefore important to be attentive to the problems in various areas of country produces around this area and the responses from the constitutional courts may be issued to contribute to their solution.
Usually, cases that come to the attention of the courts of the state revolve around the question of measures taken by local governments, which are considered contrary to health and the environment. In some cases, as we will discuss, the opposite occurs, that is, questioning a protective measure of the environment taken by a local government, to be considered injurious to other fundamental rights.
In this context, the August 13, 2009 was published on the website of the Constitutional Court 1735-2008 STC-PA (If Shougang Hierro Peru SAA), through which upheld a petition for relief filed by a mining company against an order issued by the Provincial Municipality of Nasca, through which were canceled mining concessions granted to the applicant , on the grounds found within the urban area of \u200b\u200bthe city of Marcona and violating the rules of the Environment and Environmental Protection.
Our Blog dedicated to the study of constitutional processes, we performed a review of this ruling from the perspective of procedural law. This corresponds to draw attention to the pronouncement of the Chamber of the Court about the merits of the dispute, which has a serious shortcoming, because the foundation 14 of the decision indicates that for the resolution of the dispute is going to apply the proportionality test, but on the following grounds not seen in all the application of this technique for resolving conflicts fundamental rights, ie not identified if there was any legitimate purpose to justify the action taken by the municipality, and also examines whether the measure was necessary to achieve that goal. Similarly, the decision completely lacks a balancing of different interests involved (the protection of the environment and the rights of the applicant). In the absence of these aspects, it is unclear what is meant Courtroom "implementation of the proportionality test."
Concretely, the Board is limited to resolving the case with two very brief reasons, in which states that the Ordinance issued by the defendant municipality failed to comply with the legal framework related to mining concessions or establish technical reasons relating to the modification its urban development plan. As shown, these arguments do not relate to the test of proportionality and are closer to an assessment of the legality of the action taken by the defendant municipality, rather than a constitutional legal analysis on the company's rights mining considered affected (free enterprise, property and other).
As noted at the beginning, various social conflicts in Peru are caused by environmental problems caused by mining activities, remain the responsibility of national courts contribute to its solution, where sentences are clear reasons why that is taken court decision in this regard. We're not saying you should always rule in favor of environmental rights, but that any court ruling on fundamental rights must be properly grounded. If citizens perceive that the courts issued rulings that lack of solid arguments to nullify measures taken by their municipalities to protect the environment, certainly not trust the justice system and seek to respect and guarantee their rights in other ways.
Finally, it is important to note that the operative part of the sentence, the Chamber of the Court merely states founded the demand, but no details at all to what extent are to be carried out with respect to the act of the municipality considered detrimental to the fundamental rights of the mining company. 16 On the basis of the decision, the Board simply states that the ordinance in question must be disapplied to the case.
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