Some defects of HB 6342 seen by Chamber of Mines

The Chamber of Mines of the Philippines (COMP) sees substantive infirmities in the provisions of House Bill (HB) 6342. COMP pointed these out in a formal submission to the House of Representatives.

But even in the explanatory note COMP finds that for the authors to say “that the resolution of the constitutionality issue of Republic Act 7942, or the Philippine Mining Act of 1995 by the Supreme Court “mirrors the proclivity of government to act against its better judgment once the so-called profits of mining are brought into the picture” is immaturely judgmental. The need to utilize the mining industry as a catalyst to the development of areas particularly the countryside in order to hasten poverty should be among the first and overriding priorities of a developing country like the Philippines. It may be worthwhile for the proponents of the Bill to also recognize mining as one of the nation’s priorities.”

The COMP’s comments expose some of the ideologically motivated use or misuse of data in the bill’s explanatory note.

After refuting many statements in the explanatory note, the COMP says:

“Adopting this Bill will set back and stunt the Philippine mining industry’s continuing growth, and will unduly hamper the Philippine economy’s struggle to cope with the financial crisis. The radical changes, which this Bill seeks to introduce will lead to a retrogression of an economic activity enjoying a much needed resurgence. The uncertainty that this bill, if legislated into law, will bring to the country would be devastating and will again result in a time of languishing stagnation in the development of what is
otherwise a rising field in the Philippine economy.

“The Mining Act is serving its purpose of implementing responsible mining and is responsive to national development efforts. The Mining Act is current, comprehensive, environment friendly and already addresses much of the supposed concerns of the Bill proponents, thus, it needs no further amendments or worse, an alternative law arising from this Bill that is not only constitutionally and legally infirm but fraught with erroneous and redundant provisions.

“The Chamber urges this august legislative body to reject the introduction of this radical Bill and consider the same as unnecessary and bereft of justification for adoption.”

Constitutional infirmities
1. COMP opines that House Bill 6342 derogates the “Regalian Doctrine” and violates Section 2, Article XII of the Constitution that provides that “all minerals are owned by the State.” Thus, says COMP, all mining projects are considered projects of the State. But HB 6342 maintains that mineral resources found in
ancestral domains and lands are owned by the indigenous peoples and cultural communities.

2. COMP sees that the bill’s prohibition against Financial or Technical Assistance Agreement goes against the Constitution and Supreme Court decisions.

3. Bill limits the term of mineral agreements to 15 Years

This term-limit is too short for investors who sink in huge amounts in mining projects. That provision of the bill “also violates Section 2, Article XII of the Philippine Constitution which states that ‘such agreements may be for a period not exceeding twenty–five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law.” House Bill 6342 would be a law that disallows what the Philippine Constitution permits.

4. House Bill 6342 embraces more than one subject COMP says “the Bill includes various provisions on peace and order, environment, human rights, foreign policy, indigenous peoples, and other subject matter which are covered by separate laws and should not be included in a mining law. This violates Section 26, Article VI of the Philippine Constitution, which states: ‘Every Bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.’ ”

5. It increases appellate Jurisdiction of the Supreme Court without its advice and concurrence
“The Bill makes decisions of the Mine Adjudication Board’s directly appealable to the Supreme Court.
Under current rules of procedure, MAB decisions are appealable to the Court of Appeals. This provision of the Bill violates Section 30, Article VI of the Philippine Constitution, which provides:

‘No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.’”

6. The bill violates the Constitutional Due Process Clause, Equal Protection Clause, and Non-Impairment Clause “Section 1, Article 3 of the Philippine Constitution provides:

‘No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.’

“The Bill seeks to limit the government incentives given to mining contractors to “pollution control or mitigation devices or infrastructure, mineral, processing plants and development of downstream industries.” While the Chamber shares the importance to national development of pollution
control/mitigation, infrastructure development, and adding value to mineral output, we believe that the aforementioned limitation of incentives against mining contractors, considering mining’s contribution to the national economic development, violates the equal protection clause of the Philippine Constitution.

“The Bill also provides for a moratorium on “all mining activities until all the systems are in place for the proper implementation of the law. In addition, the Bill provides that “[a]ll existing mining permits, licenses and agreements are deemed cancelled.” This not only violates the aforementioned due process clause of the Philippine Constitution, but also the non-impairment clause under Section 10, Article III of the Philippine Constitution which provides that “[n]o law impairing the obligation of contracts shall be passed.”

COMP in its submission to the House finds many other very serious infirmities in House Bill 6342. –Manila Times