Page last updated at 03:33 CST6CDT, Thursday, 15 November 2012 PH
The recently issued Executive Order No. 79 on responsible mining is, to my mind, a very well balanced policy statement on what is inherently a very difficult issue of putting together multiple and possibly conflicting objectives of Philippine society. Having been one of those who framed the Philippine Constitution of 1987, I can attest to the tug of war that was behind the scenes in the formulation of principles and policies affecting the utilization of the natural resources of the country. On one hand, there is the provision of Section 16, Article II which provides that the State shall protect and advance the right of the Filipino people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Then there is the provision of Section 1, Article XII that seeks a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; an expanding productivity as the key to raising the quality of life for all, especially the underprivileged; and that in the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Already in this second provision, there is a potential conflict between the most effective means of increasing the amount of goods and services (Gross Domestic Product) and the equitable distribution of the fruits of economic growth among all sectors of the economy.
As I already pointed out during the meeting of the Committee on the National Economy, the most rapid growth could be attained by concentrating the ownership of enterprises in the hands of those who have the capital to improve the productivity of the other factors of production, including labor, and opening the economy to as much foreign capital as possible because the Philippines has the lowest savings rate in East Asia.
Then there is the provision of Section 2, Article XII which provides that the exploration, development and utilization of mineral resources shall be under the full control and supervision of the State. The harsh reality is that sometimes the State may be quite inefficient under Philippine circumstances to achieve the highest growth of output or the greatest increase in productivity or the widest distribution of income because of very limited capital or because of inefficiencies due to corruption and mismanagement. Add to this the provision of Section 2, Article XII which recognizes the small-scale utilization of resources by Filipino citizens and, therefore, grants recognition to small-scale mining as a formal sector of the economy. In the experiences of many communities in the Mountain Provinces and Mindanao, small-scale miners are the worst in destroying the physical environment for lack of appropriate technology and capital. There is also the problem of some local government officials who are the ones behind small-scale mining and are earning illegal profits from the exploitation of these natural resources.
Indigenous cultural communities are among the stakeholders also protected by Section 22, Article II which provides that the State recognizes and promotes their rights within the framework of national unity and development. There is reference to the Indigenous Peoples rights Act (IPRA) of 1997, which recognizes further the indigenous peoples' right to develop their lands and natural resources within their ancestral domains, subject to their free, prior, and informed consent. Besides, local government units (LGUs) are empowered by Section 7, Article X to an equitable share in the proceeds of the utilization and development of the national wealth within their jurisdiction. This constitutional provision was concretized by the Local Government Code of 1991 which provides that LGUs have the duty and authority to protect and co-manage the environment and enhance the right of the people to a balanced ecology.
Within the multiple constraints inherent to exploitation of natural resources, there is a clear mandate by law (RA No. 7492), known as the Philippine Mining Act of 1995, which directs the State to carry out its responsibility of promoting the rational exploration, development, utilization, and conservation of the country's mineral resources through the combined efforts of government and the private sector in order to enhance national growth (which is measured by the increase in GDP and employment opportunities). This reference of the Executive Order to the Philippine Mining Act, which survived a constitutional challenge in the Supreme Court during the Administration of President Gloria Macapagal Arroyo, is a clear repudiation of any move by oppositors to the mining industry to absolutely ban mining in the country. The Executive Order settles once and for all the issue of whether or not there can be an absolute ban to mining. The answer is that it would be both unconstitutional and illegal for any sector of Philippine society to ask for an outright banning of mining. The Constitution clearly leaves room for the State to promote the rational exploration, development, utilization and conservation of the country's mineral resources. For comments, my email address is firstname.lastname@example.org.