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Jose Rizal University

Shaw Boulevard, Mandaluyong City
Law School










A LEGAL MEMORANDUM
FOR THE DECLARATION OF UNCONSTITUTIONALITY
OF SOME PROVISIONS OF
THE PHILIPPINE MINING ACT OF 1995









Prepared by:

Darlene B. Bibat
LLB1- M2






Submitted to:

Atty. Firme
Professor Legal Research






September 26, 2013





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REPUBLIC OF THE PHILIPPINES
SUPREME COURT
MANILA


JUAN DELA CRUZ
Petitioner, for Declaration of Unconstitutionality

- versus -

PEDRO CRUZ, Sec. of DENR
Respondent.

x - - - - - - - - - - - - - - - - - - - - - x
MEMORANDUM FOR PETITIONER

Petitioner, by counsel, respectfully states that:

STATEMENT OF THE CASE

Petitioner Juan Dela Cruz filed the present action for the
declaration of unconstitutionality of major provisions of the Philippines
Mining Act of 1995. RA 7942 or the Philippine Mining Act of 1995 is
unconstitutional for permitting fully foreign owned corporations to exploit
the Philippine natural resources.

STATEMENT OF THE FACTS

1. Republic Act 7942 or the Philippine Mining Act of 1995 was signed into
law on March 3, 1995 by President Fidel V. Ramos.

2. Under the Mining Act of 1995, the government has the power to grant
three types of mining rights: 1.) Exploration Permit 2.) Mineral
Agreement and 3.) Financial or Technical Assistance Agreement.

3. An exploration permit gives the permitee the right to conduct mineral
exploration to specified areas.

4. A mineral agreement grants the contractor the exclusive right to conduct
mining operations and to extract all mineral resources found in the
contract area.

5. A Financial or Technical Assistance Agreement (FTTA) meanwhile is a
contract involving large-scale exploration, development and utilization of
mineral resources.

6. From the time that R.A. 7942 had been signed into law its
constitutionality had been challenged by several environmentalist,
advocates of indigenous people rights.

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7. In January 2004, the Supreme Court of the Philippines nullified
provisions of the Mining Act of 1995 which allowed foreign mining
firms to operate in the country.

8. However, in December of the same year the court reversed its January
ruling allowing 100 % foreign ownership and control of mining activities
in the country, contrary to provisions of the Philippine Constitution. This
decision dangerously opened the gate for foreign investors and
corporations total control of over peoples mineral resources and the
countrys whole natural resources as well.

9. This is a mockery of the peoples control over their patrimony and a clear
violation of the rights of indigenous peoples over their land and
resources.


ISSUES

Given the foregoing facts and circumstances, the following issues are
presented for discussion:
1. Whether or not the Philippine Mining Act is unconstitutional for
allowing fully foreign-owned corporations to exploit the Philippine
mineral resources.

2. Whether or not the alleged harmful effects of mining to the
environment, health of the community and human dignity have factual
basis.

ARGUMENTS

1. The primary concern regarding the Philippine Mining Act is that the
law itself permits the exploitation of the natural resources of the
Philippines.

2. Sections 80 and 81 of the Mining Act of 1995 must be declared
unconstitutional because of its adverse effects on the profit sharing
from mining between the company and the state.

3. Mining act is not meant to regulate equitable sharing and ensure
equitable sharing of resources as embodied in the Constitution as it
gives a free rein to foreign mining companies to extract minerals and
repatriate their profits.

4. Section 80 states that the total government shares in a mineral
production sharing agreement (MPSA) shall be the excise tax on
mineral products while Section 81 specifies the government share in
Financial or Technical Assistance Agreements or FTAAs. Both are
unconstitutional because they foster inequitable sharing of wealth.

5. Section 80 limits the share of the government in MPSA to excise taxes
while Section 81 confines government shares to taxes, fees and
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royalties instead of allowing it to have full control over the
exploration, development and utilization of mineral resources.

6. Such law permits foreign-owned corporations to exploit the
Philippines mineral resources where in the long run will produce
negative effects to the Filipino people much more with indigenous
people.

7. Republic Act 7942 is unconstitutional for violating Article XII,
Section 2, of the 1987 Constitution, which states that all lands of
public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, forests, timber, wildlife,
flora and fauna and other natural resources are owned by the State.

8. From the time the law was signed mining resulted to massive
destruction of the environment and ecosystem, mining disasters
(Philex, Lepanto, Marcopper, Lafayette), violation of peoples rights
especially indigenous peoples collective right to Free, Prior and
Informed Consent (FPIC), ancestral land and self-determination,
militarized communities especially those opposing the entry of the
large mines, pollution of agricultural lands and water bodies, health
hazards, food insecurity and more.

9. Mining is an issue of social justice, and for justice to prevail, the
Mining Act must be declared unconstitutional. The SC must be open
to alternative mining laws to reorient and overhaul the current mining
industry, such as the Peoples Mining Bill. Reorienting the current
Philippine mining industry must mean correcting the historical
injustice committed to the people, especially indigenous peoples, and
all victims of mining plunder, by making mining companies
accountable.

10. Reorienting the Philippine mining industry means it must not be
profit-driven, not import-oriented and export-dependent,
environmentally regulated especially in indigenous peoples territories
where these mineral resources are, among others. It must be for the
common good, in the framework of a nationally industrialized
Philippine mining industry. And it is important that these matters are
constitutionally guaranteed.

11. The Philippine Mining Act of 1995 are strongly opposed by people
not merely of its violation of constitutional provision but also because
of the laws adverse effects to the economy, to people, and to our
environment and natural resources.








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PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment
be rendered in favor of petitioner and against defendant by:

1) DECLARING Sections 80 and 81 of the Philippine Mining Act
unconstitutional because it violates Article XII Section 2 of the constitution.

2) GRANTING the action being prayed for, for justice to prevail and for the
preservation of our Philippine natural resources so as foreign-owned
companies will not be permitted to exploit them.

Other just and equitable actions under the circumstances are likewise
prayed for.

Quezon City, September 26, 2013.


(Sgd.) ATTY. DARLENE BIBAT
Counsel for Petitioner
Address:
IBP No:
PTR No:
Roll No:
MCLE No:



Copy furnished:

ATTY. MARIA SANTOS
Counsel for Defendant