Didipio campaign

          
Mining Act’s Constitutionality to
Deprive RP of Economic Gains

Thee
Supreme Court’s recent decision upholding the constitutionality of the Mining
Act of 1995 will be detrimental to the economic interest of the government, the
public and private landowners especially to the thousands of indigenous peoples
who are losing their ancestral lands due to mining operations.

This
was the contention of the Didipio Earth Savers’ Multi-Purpose Association Inc.
(DESAMA) as they filed yesterday a motion for reconsideration urging the SC to
set aside its

March 30, 2006

decision which upheld the
constitutionality of R.A. 7942 or the Mining Act of 1995.

The
Mining Act according to DESAMA must be declared unconstitutional as it only
intends to enrich mining contractors at the expense of the economic interest of
the Philippine government and the Filipino people.

The
Mining Act, DESAMA claims, intends to practically surrender the eminent domain
power of the State to mining operators and also deprive individuals of their
right to just compensation over their lands taken away from them for mining
purposes.

Eminent domain

DESAMA
argued that the SC ruling erroneously delegated the power of eminent domain –
or the forcible acquisition of private property for  public use — to
mining operators.

"How
could the Climax Arimco Mining Corp. (CAMC) be given the power of eminent
domain when it is not a private entity operating a public utility but a foreign
mining corporation whose primary interest is for private gain and not for
public benefit? This is tantamount to the government voluntarily  giving
up its sovereign power to mining operators and relinquishing its obligation to
protect the interest of the public" said  Peter Duyapat Sr., a member
of the Board of Directors and a leader of DESAMA

Eminent
domain,  DESAMA noted, could only be exercised by the State  and not
by private mining operators except in public utilities operated by private
entities.

The
power of eminent domain according to DESAMA may be delegated by Congress to a
few exclusive bodies such as government entities, local government units and
private entities operating public utilities.

"The
law is clear. Only private entities that operate public utilities work as
exception to the rule barring further delegation of an already delegated
power," noted DESAMA in its petition.

Citing
Presidential Decree No. 512,  which the SC said was not expressly repealed
by section 76 of R.A. 7942, the court earlier ruled that: "The
evolution  of mining laws gives positive indication that mining operators
who are qualified to own lands were granted the authority to exercise eminent
domain for the entry, acquisition and use of private lands in areas open for
mining operations."

The
SC decision upheld the Financial and Technical Assistance Agreement (FTAA) of
CAMC thus allowing it to negotiate for the acquisition of lands which DESAMA
claimed is "a clear violation of the exclusive sovereign right of the
government to exercise the power of eminent domain."

Public purpose

The
Mining Act is unconstitutional according to DESAMA because the law’s provisions
do not fully satisfy the requirements in the exercise of eminent domain.

R.A.
7942 according to DESAMA lacks two essential provisions that would guarantee
that (1) mining operations are for public purposes and that (2) landowners
whose private properties  will be used for mining activities should be
justly compensated. 

There
are three requirements for a valid exercise of the power of eminent domain
under section 9, Article III of the Constitution. These are:  (1) taking
(of a private property) whose purpose must be for (2) public use which should
be made (3) upon payment of just compensation.

DESAMA
noted that the Mining Act only satisfied "the taking" requirement but
failed to comply with the "public use" and the "just
compensation" requirements of eminent domain.

Instead
of ensuring that mining operations will be for public purpose and hence for
public benefit, the Mining Act, DESAMA noted  "obliges the Philippine
government to ensure that mining contractors do not come out of the mining
venture poorer than when they came in."

If
mining operations in the

Philippines

are indeed a direct
undertaking of the State as the owner in trust of mineral resources, and is
designed to benefit the public, DESAMA said that the government, should have
received the majority of the income or proceeds from the mining operations of
CAMC.

"The
Mining Act failed to provide the country of economic growth based on real
contributions from mining operations that should have served the  general
welfare of the country. The law does not provide for the government’s equitable
share of the mining contractors’ profit," said Atty. Melizel Asuncion,
counsel of DESAMA. 

DESAMA
said that Mining contractors enjoy incentives such as corporate tax and duty
holidays from the Board of Investments. Corporations who hold FTAAs such as
CAMC, are given the privilege to fully recover its pre-operating and property
expenses before they give the government its share in the net revenue which are
nothing but levies such as taxes, duties and other fees that are not part of investment
return.

Just compensation

The
Mining Act also lacks a provision on just compensation required to satisfy the
legal exercise of eminent domain.

In
its motion for reconsideration, DESAMA argued that the SC erred in its
interpretation of equating damage compensation to just compensation.

The
SC said in its decision that section 76 of the Mining Law and section 107 of
Department Administrative Order (DAO) 96-40 of the Department of Environment
and Natural Resources both provide for the payment of just compensation.

DESAMA
countered the SC’s pronouncement claiming that the Mining Act and its
implementing rules and regulations only provide for damage compensation in
actual mining operations and/or the installation of machineries and other mining
facilities but not for the payment of just compensation.

Section
76 of the law only states that "any damage done to the property of the
surface owner, occupant or concessionaire as a consequence of such operation
shall be properly compensated as may be provided in the implementing rules and
regulations." 

According
to DESAMA, just compensation pertains to the full payment of a property taken
away from the owner based on its fair market value. 

This,
DESAMA said differs from the concept of damage compensation which only pertains
to payment for the harm or injury to a property resulting in the loss of its
value or impairment of its usefulness.

En banc decision

The
group also argued that instead of dismissing their earlier petition in DESAMA vs.
Elisea Gozun through affirming the First Division’s earlier decision in La
Bugal B’laan vs. Ramos which declared that section 76 of R.A. 7942 was not
unconstitutional,  the SC should have acted on DESAMA’s petition en banc
since the case involves the constitutionality of a law.

Section
4(2), Article VIII of the 1987 Constitution requires that all cases involving
the constitutionality of a treaty, international or executive agreement or
law have to be heard or decided by the SC en banc.