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Wednesday, February 02, 2005
SC junks appeal on decision upholding Mining Act
By Benjamin B. Pulta
THE Supreme Court (SC) has drawn the final curtain in the ongoing debate over the Constitutional question of foreign participation in local mining interests.
In a three-page resolution, the SC, through Clerk of Court Luzviminda D. Puno, "denied with finality" a plea filed by a local group representing an indigenous tribe which had asked the SC to reconsider its ruling last month in favor of a 1995 law virtually allowing foreigners' unbridled participation in mining activities.
"Further discussion of these issues would not serve any useful purpose as it would merely repeat the same justifications and reasons already taken up," the SC said in its ruling.
It pointed out that after a "thorough deliberation" of the motion, none of the members of the court have changed their opinions or votes.
"Indeed, all the conceivable aspects of this litigation have all been extensively taken up and addressed during the court's lengthy and purposeful debates and deliberations," the SC said.
In a 38-page motion, lawyers of the La Bugal-B'laan Tribal Association urged the High Court to overturn its Dec. 1, 2004 decision and declare the Philippine Mining Act of 1995 (Republic Act 7942) and its implementing rules and regulations (IRR) as "unconstitutional and null and void".
The decision by the High Court last December was itself a turnaround of an earlier ruling by the SC on January of last year declaring portions of the law as invalid.
Among other things, the petitioners in the case, through their lawyers Marvic Leonen and Francis Ballesteros, questioned what they described as a mistaken assumption in the SC decision that Filipino-owned corporations cannot put up the capital" and that foreign-owned corporations are not willing to provide large amounts of financial assistance.
The lawyers pointed out that the decision "implies that the only way that foreign investors would be interested would be for them to take full control and ownership of the enterprise".
This however is not always the case, the petitioners insisted as they explained that "Filipinos need not put up huge amounts of financial capital" and that "nor is it true that reputable international mining corporations require that they (foreign firms) fully own the mining operations."
Citing facts of the actual case which it brought to the SC, the lawyers said Western Mining Corporation Australia, a key player in the global mining industry entered into a P533 million-transaction with a small Filipino corporation with a paid-up capital of only P16 million, in a move, the lawyers said, would not have been undertaken by the foreign firm "unless it sees profitability on its end."
The petitioners also insisted that the last SC ruling would contradict Constitutional provisions that require that the state enter into co-production, joint venture or production sharing agreements only with Filipino citizens or corporations or associations with at least 60 percent Filipino ownership.
Foreign-owned corporations under the Constitution, the petitioners said, is limited to participating only in large-scale activities and those involving either technical or financial assistance.
"There was a clear need, based on prior Constitutional text to further refine the limitations and restrictions when fully foreign-owned corporations are concerned," the lawyers claimed in their appeal.
Voting 10-to-4, the SC last December ruled in a 248-page ruling that the mining law's IRR drafted by the government and the financial and technical assistance agreement between the government and the Western Mining Corporation of the Philippines is valid.
(February 2, 2005 issue)
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