After 9 years, Supreme Court tackles Mining Law anew

BAGUIO CITY - Nine years after he dissented to a Supreme Court majority ruling upholding the legality of Republic Act 7942 or the Mining Act of 1995, Senior Associate Justice Antonio Carpio is not changing his tune in opposing the law. Carpio is the only remaining Supreme Court magistrate among the justices who voted in December 2004 on the constitutionality of the 1995 mining law (La Bugal v Ramos). He was among the four justices who dissented to the majority ruling that the law was constitutional. On Tuesday, Carpio, this time with a different set of colleagues, re-opened the issues surrounding the mining law during oral arguments here, where the SC is conducting its annual summer sessions. Christian Monsod, who spoke on behalf of petitioner Akbayan, appealed to the 14 magistrates to strike down as unconstitutional Sections 80 and 81 of the law because it creates "inequitable distribution" of shares of income derived from mining activities in the country. In their petition for prohibition and mandamus filed in March 2008 which revived issues concerning the law, Akbayan and the other petitioners questioned the constitutionality of Section 80 and 81 of the Mining Law, as well as Department of Environment and Natural Resources (DENR) Administrative Order 2007-12 for limiting the government's share in mining activities to duties, fees, and usual taxes, including an excise tax of 2 percent. "If we start a new paradigm where the government is not shortchanged, then that sends a great signal to investors," Monsod said. Carpio, the first to interpellate Monsod, quoted the late former Environment Secretary Angelo Reyes as saying after reviewing the computation set in the La Bugal case that the government would end up with a "zero to nil" share in income from mining operations in the country. "That is grossly and manifestly disadvantageous to the Filipino people... Getting zero is grossly disadvantageous to the Filipino people," he said. He also said that it would be disadvantageous to Filipinos if the policies contained in the mining law would be "prospective," as opposed to being retroactive or covering mining firms even before the law was created. Carpio reiterated his stand that: "Only Congress can say term of profit, not any bureau director... but in La Bugal, the majority says it's the president who prescribes terms and conditions." In insisting that the government should get more from mining companies, Carpio emphasized the toxic wastes in tailing ponds left behind by the firms. "The state should consider the cost of maintaining this waste for thousands of years," Carpio suggested, adding that mining firms should be made to pay for the government's maintenance of this waste and that the payment should be kept in a fund for years to come. While agreeing with Carpio, Monsod noted that measures on environmental hazards and disasters resulting from mining operations were not yet covered in the Mining Law of 1995. "So that is something Congress should consider," Carpio said. To demonstrate how little the government gets from the mining industry, Carpio compared the excise taxes being paid in the mining, liquor and automobile industries. "Excise tax on cars is much higher than minerals... How about excise tax on beer? It is much more taxed... And yet, they [car and beer] didn't use raw materials from our country [unlike minerals]," Carpio said. For his part, Associate Justice Presbitero Velasco Jr suggested that Monsod focus on finding flaws in the DENR administrative order, instead of targeting the La Bugal case that upheld the legality of the Mining Law. "Look at the rules of the DENR and find out if they are following what was stated in the La Bugal case," he said. Meanwhile, Associate Justice Mariano del Castillo admitted seeing nothing wrong in the contested Sections 80 and 81 of the Mining Law. "They don't on their face value show anything wrong with them." But Monsod reiterated that the two sections would result in inequitable distribution of shares of income. — BM, GMA News