Wednesday, September 28, 2011

South Cotabato's Ban on Open Pit Mining


Late last year, DILG Secretary Jesse Robredo said that the provincial government of South Cotabato did not have the power to ban open-pit mining and should instead review its Environmental Code that prohibited such mining method.[1]  According to Robredo, “The Philippine Mining Act of 1995 does not prohibit open pit mining.  A local government ordinance cannot undo an act of Congress.”[2]  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.”[3]


Secretary Robredo’s actions in this case are inconsistent with law.


a.      Robredo’s legal analysis is flawed. 


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 in banning open-pit mining may also be justified as a police power measure under the Local Government Code.[4]  Ordinances enacted by local governments must be consistent with the Constitution and national laws.[5]  But if an act is not prohibited by national law, there is no reason why the prohibition cannot be required by an ordinance.  Thus, in Newsound Broadcasting Network Inc. v. Dy,[6] 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 despite the fact that they were authorized by the Food and Drug Administration.[7]  In that case, 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 Mayor could not contradict the decision of the FDA in allowing drugstores to operate, he can prevent their operation for their failure to follow local ordinances.  National and local laws are two separate hurdles that can impose an entirely different set of standards.



b.      Secretary Robredo exercised control over a local government. 


The President does not have the power of control over local government officials, only the power of supervision.  Supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties.  Thus, if the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them 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.[8]  Since local government units are subject only to the power of general supervision of the President, 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.”[9]

In the case of South Cotabato, Robredo reversed the decision of local officials of South Cotabato and in effect, he violated the Constitution. 



c.       Secretary Robredo usurped judicial functions.

DILG Secretary Robredo also usurped judicial functions by claiming that the ordinance is illegal and should be struck down.  The Constitution empowers courts to determine the validity of laws.[10]  The Constitution gives the Supreme Court the power to “[r]eview, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in:  All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.[11]  Nowhere in the law is the Interior and Local Government Secretary empowered to assess the constitutionality or validity of an ordinance.



For his part, South Cotabato Governor Arthur Y. Pingoy Jr. said that his administration will implement the South Cotabato Environment Code that the previous provincial board passed last year.  He correctly pointed out that “[a]s the governor of this province I have to implement the ordinance. There will be no open-pit mining operation in the province of South Cotabato unless and until this ordinance will be nullified by the proper court.”[12]




[1] Daxim Lucas, DILG says Cotabato open-pit mining ban illegal, Philippine Daily Inquirer, December 9, 2010.  Available at http://business.inquirer.net/money/topstories/view/20101209-308059/DILG-says-Cotabato-open-pit-mining-ban-illegal.  The Tampakan Mine is considered as the biggest undeveloped copper-gold prospect in Southeast Asia and is one of the biggest foreign investments in the country.  It is owned by the Australian mining firm, Xstrata PLC  while conglomerate San Miguel Corp. owns a minority stake in the project‘s minority partner, Indophil Resources.  The mine is estimated to contain 13.5 million tons of copper and 15.8 million ounces of gold, but the estimated 2016 commencement of its production run remained in doubt because of the prevailing ban.  Id.
[2] DILG: South Cotabato Governor Cannot Ban Open Pit Mining, Department of Interior and Local Government, December 9, 2010.  Available at http://www.dilg.gov.ph/news.php?id=54&newsCategory=Central.
[3] South Cotabato guv junks local government chief’s order, Sun Star Davao, December 3, 2010.  Available at http://www.sunstar.com.ph/davao/local-news/south-cotabato-guv-junks-local-government-chief-s-order.
[4] SECTION 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
[5] The Solicitor General v. The Metropolitan Manila Authority, G.R. No. 102782, December 11, 1991.
[6] G.R. Nos. 170270 & 179411, April 2, 2009.
[7] Gordon v. Verdiano II, G.R. No. L-55230, November 8, 1988.
[8] Hebron v. Reyes, G.R. No. L-9124, July 28, 1958.
[9] The Province of Negros Occidental v. Commissioners, G.R. No. 182574, September 28, 2010.
[10] Brokenshire Memorial Hospital, Inc. v. Minister of Labor and Employment, G.R. No. 74621, February 7, 1990.
[11] Constitution (1987), Art. VIII, section 5.
[12] Dani Doguiles, South Cotabato stays pat on implementation of environment code, PIA Press Release, September 26, 2011.  Available at http://www.pia.gov.ph/?m=1&t=1&id=56180.

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