Aquino’s mining policy is unconstitutional

by Dan Gatmaytan

Environment and Natural Resources Secretary Ramon Paje recently commented on the new mining executive order expected to be signed by President Aquino. In a statement to the press, Paje said that the new policy would reiterate the “primacy of national law” over anti-mining ordinances.

Paje added that the ordinances would remain until rendered illegal by a “national government agency.”

Paje’s statements echo those made by DILG Secretary Jesse Robredo, which were made in 2010. Robredo made similar statements in response to South Cotabato’s resistance to mining. He opined that the province did not have the power to ban open-pit mining and should instead review its Environmental Code that prohibited such mining method.

In a Memorandum Circular dated November 9, 2010, Robredo directed the provincial government of South Cotabato to review its Environmental Code. According to the Memorandum Circular, “[i]n view thereof, you are hereby enjoined to cause the immediate suspension of the implementation of said ordinance pending its review.”

Secretaries Paje and Robredo make statements that are arguably inconsistent with law.

There is no law that prevents local governments from imposing additional strictures to safeguard the environment so long as it does not contradict an express provision of law. The Mining Act of 1995 does not prevent local governments from banning open-pit mining or from adopting measures that protect the environment. The efforts of South Cotabato to ban open-pit mining may be justified as police power measures under the Local Government Code. It is true that local ordinances must be consistent with the Constitution and national laws, but if a course of action is not prohibited by a national law it can certainly be adopted by an ordinance.

Local governments are allowed to add requirements before businesses otherwise satisfying national laws can operate at the local level. In Newsound Broadcasting Network Inc. v. Dy (G.R. Nos. 170270 & 179411, April 2, 2009.), the Supreme Court held that:

Nothing in national law exempts media entities that also operate as businesses such as newspapers and broadcast stations such as petitioners from being required to obtain permits or licenses from local governments in the same manner as other businesses are expected to do so. While this may lead to some concern that requiring media entities to secure licenses or permits from local government units infringes on the constitutional right to a free press, we see no concern so long as such requirement has been duly ordained through local legislation and content-neutral in character, i.e., applicable to all other similarly situated businesses.

In another case, the Supreme Court recognized the power of local government units to prevent the operation of drug stores authorized by the Food and Drug Administration to operate. In that case (Gordon v. Verdiano II, G.R. No. L-55230, November 8, 1988.), the Court held that (then) Mayor Richard Gordon could not disallow the operation of a drugstore after it was allowed to operate by the FDA. “However,” the Court continued, “it was competent for the petitioner (Gordon) to suspend Mayor’s Permit No. 1955 for the transfer of the Olongapo City Drug Store in violation of the permit.”

In other words, while the applicant has complied with the pertinent national laws and policies,

this fact alone will not signify compliance with the particular conditions laid down by the local authorities like zoning, building, health, sanitation, and safety regulations, and other municipal ordinances enacted under the general welfare clause. This compliance still has to be ascertained by the mayor if the permit is to be issued by his office. Should he find that the local requirements have not been observed, the mayor must then, in the exercise of his own authority under the charter, refuse to grant the permit sought.

What is more curious is that both Cabinet secretaries refer to the executive power to declare these ordinances illegal. The President does not have the power of control over local government officials, only the power of supervision. Supervision means overseeing the power or authority of an officer to see that subordinate officers perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter (Hebron v. Reyes, G.R. No. L-9124, July 28, 1958.). The President’s authority is limited to seeing to it that rules are followed and laws are faithfully executed. “The President may only point out that rules have not been followed but the President cannot lay down the rules, neither does he have the discretion to modify or replace the rules.” (The Province of Negros Occidental v. Commissioners, G.R. No. 182574, September 28, 2010).

Robredo’s actions and Paje’s statement suggest that the President has the power to declare ordinances unconstitutional. The President cannot declare ordinances as unconstitutional as that power is reserved by the Constitution to the courts.

If Paje’s statements are accurate, the new mining policy may face serious challenges in our courts.

Dan Gatmaytan is an Associate Professor in the University of the Philippines College of Law.

source: http://www.interaksyon.com/article/35728/opinion–aquinos-mining-policy-is-unconstitutional

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