Economic Freedom and Resource Protection

Posted on Oct 28, 2024 in Law & Jurisprudence

Resource Protection vs. Economic Remedy

Protecting Economic Freedom

Article 19 Provisions

Article 19 No. 21

This article guarantees the right to engage in any economic activity that does not violate morality, public order, or national security, as long as it adheres to the governing legal rules.

It also stipulates that the State and its agencies can only conduct or participate in business activities if authorized by a quorum law. In such cases, these activities are subject to the same rules as private individuals, with justifiable exceptions established by law, which must also be quorum-based.

Article 19 No. 22

This article prohibits arbitrary discrimination by the State and its agencies in economic matters.

It states that only a law can authorize certain direct or indirect benefits for any sector, activity, or geographic area, or establish special charges related to them. In the case of franchises or indirect benefits, their estimated cost must be included annually in the Budget Law.

Article 19 No. 23

This article guarantees the freedom to acquire ownership of all goods, except those naturally common to all or belonging to the entire nation as declared by law. This is subject to other provisions of the Constitution.

It also states that a quorum law can regulate ownership acquisition as required by the national interest.

Article 19 No. 24

This article guarantees the right to ownership of all kinds of tangible or intangible property.

It specifies that only the law can determine how ownership is acquired, used, enjoyed, and disposed of, as well as the limitations and obligations arising from its social function. This includes considerations of national interest, security, utility, public health, and conservation of natural assets.

It further states that no one can be deprived of their property or its essential attributes except under a general or special law authorizing expropriation for public or national interest as defined by the legislator. The legality of expropriation can be challenged in ordinary courts, and compensation for actual damages is guaranteed, to be determined by agreement or court ruling.

In the absence of an agreement, compensation must be paid in cash. Physical possession of expropriated property can only occur after full payment of compensation, which, if not agreed upon, is provisionally determined by experts as per the law. If there’s a claim regarding the expropriation’s merit, the judge can suspend possession based on the claim’s history.

The State has absolute, exclusive, inalienable, and indefeasible dominion over all mines, including deposits, metalliferous sands, salt mines, coal, hydrocarbon deposits, and other fossil substances, except for surface clay. However, individuals or legal entities can own the land where these resources are located. Surface properties are subject to legal obligations and limitations to facilitate exploration, exploitation, and profit from these mines.

The law identifies substances, excluding liquid or gaseous oil, that can be subject to exploration or exploitation concessions. These concessions are granted by court order and have durations, rights, and obligations defined by law, which are considered constitutional organs. Mining concessions require the owner to carry out activities that satisfy the public interest justifying the concession. The system ensures compliance with this requirement and provides grounds for revocation in case of breach or termination of the single domain over the concession. These causes and effects must be established when the concession is granted.

Only courts of law can declare the termination of these concessions. Disputes regarding the expiration or termination of ownership rights are resolved by them. In case of expiry, the affected party can request a declaration of their right to livelihood.

The mining lease holder is protected by the constitutional guarantee addressing this issue.

The exploration, exploitation, or entitlement to deposits containing grantable substances can be carried out directly by the State or its businesses, or through administrative concessions or special operating contracts under conditions established by the President of the Republic via supreme decree. This also applies to deposits in national sea waters and those in areas deemed important for national security.

The President can terminate administrative concessions or operating contracts related to holdings in areas designated as important for national security at any time without explanation or compensation.

Individual rights to water, recognized or constituted by law, grant ownership to the holders.

Fourth Transient Provision

It is understood that existing laws on matters that, under this Constitution, require constitutional organic laws or approval by a qualified quorum, meet these requirements and remain valid as long as they don’t contradict the Constitution, until the appropriate statutory bodies are established.