Allow me to share a piece of my reaction paper under our Human Rights Law class regarding the visit of Supreme Court Associate Justice Marvic Leonen to our university which I believe brought a new level of legal consciousness among the students of law attendees.
“Salus pupoli est suprema lex” – The welfare of the people is the supreme law.
In the landmark case of the Labugal B’laan, where then Atty. Marvic Leonen was legal counsel and as one of the petitioners, represented these indigenous peoples of the south (Mindanao) against the multi-national Western Mining Corporation Philippines Inc. (WMCP), that entered into a Financial and Technical Assistance Agreement with the Philippine Government.
WMCP is owned by WMC Resource International Pty., Ltd. (WMC), a wholly owned subsidiary of Western Mining Corporation Holdings Limited, a major Australian mining and exploration company.
WMCP displaced hundreds of indigenous peoples from their dwellings and means of livelihood in the south. It also extracted and exploited natural resources from the bowels of the indigenous peoples’ domain. This exploitation which our mining laws describes as a development project scored numerous cases of human rights violations against the indigenous peoples from the militarization at the entry of the WMCP.
Using our very own Armed Forces of the Philippines (AFP), WMCP suppressed the rights of indigenous peoples to forward foreign interests. Quite ironic because our AFP, vowed to protect the interests of the people are now used as guard dogs to protect the foreign owned Mining Company against the people. As mandated by our law, they must protect and serve the Filipino. You need not be a rocket scientist or need to finish law school to see that this is an atrocity against our indigenous peoples it is wrong.
Here now enters then Atty. Marvic Leonen, he as a private practicing lawyer petitioned and challenged the constitutionality of the RA 7942 otherwise known as the Mining Act of 1995. This Mining Act of 1995 gave foreign companies, which in this case, the WMCP, the full power and discretion to extract and exploit natural resources within the bowels of the indigenous peoples’ domain in Cotabato through the Financial and Technical Assistance Agreement (FTAA) with the Philippine Government.
Leonen with other petitioners asserted the supremacy of our 1987 Constitution under Section 2, Article XII of the constitution over the provisions of Mining Act of 1995. Leonen stressed in their petition that,the Mining Act of 1995 must be in consonance with the text of Section 2, Article XII of the Constitution. FTAA’s should be limited to ‘technical or financial’ assistance only. It should be observed however, that, contrary to the language of the Constitution, the WMCP’s FTAA allows WMCP, a to extend more than mere ‘financial or technical’ assistance of the State, for it permits WMCP to manage and operate every aspect of the mining activity.
WMCP, countered the argument saying that word technical in the fourth paragraph of Section 2 encompasses a broad number of possible services, perhaps, scientific and technological in basis. According to WMCP, ‘technical or financial’ assistance mentioned in the law extends and would include the area of ‘management or other forms of operations’ as it was originally stated in the 1973 Constitution.
The Supreme Court was not convinced then. In fact, it smashed the WMCP’s argument. The phrase ‘management or other forms of assistance’ in the 1973 Constitution was deleted in our 1987 Constitution, which allows only ‘technical or financial’ assistance. Casus omisus pro ommiso habendus est law principle was highlighted by our high court meaning ‘A person, object or thing omitted from an enumeration must be held to have been omitted intentionally’.
Clearly, the phrase which WMCP tries to argue was intentionally omitted by the framers of our constitution to avoid 100 percent foreign ownership of mining company. Management or operation of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987 Constitution sought to eradicate.
This was a classic case of ‘sintido komon’ and it did not need Einstein’s brain to interpret the sole intent of the framers of the constitution as to why they omitted ‘management or other forms of assistance’. The Supreme Court then struck Mining Act of 1995 unconstitutional further stating that the framers of the 1987 Constitution is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. Also, the courts are not to give words a meaning that would lead to absurd or unreasonable consequences and a literal interpretation is to be rejected if it would be unjust or lead to absurd results. Again, ‘sintido komon’.
Leonen together with his fellow petitioners won the case. Large scale mining companies scattered and operating all over the country through FTAA then were in a panic upon knowing the Supreme Court’s decision. The decision was expected to fall into Jurisprudence which will form a part of our Philippine laws. Other mining companies operating within Philippine territory under the power of FTAA would be forced to cease all operations. In this momentous event, Leonen, the petitioners together with the indigenous communities nationwide rejoiced.
However the victory was short lived, days after the decision an intervention by the Chamber of Mines was executed before our high court. They submitted a new argument asserting the constitutionality of Mining Act of 1995. And months after, in an en banc decision, the Supreme Court reversed its decision stating the Mining Act of 1995 as constitutional.
In the lengthy appeal, the supreme justices debated on their previous decision. If in the first decision they used the ‘Verba Legis’ principle of law, in which they interpreted the words literally, here in the second decision, they went deep down and created new definition of some selected words, like the words involving and either of the phrase ‘Agreements Involving Either Technical or Financial Assistance’ that is contained in paragraph 4 of section 2 of Article XII of the 1987 Constitution. In fact if you read the lengthy case, you would laugh because they had an English language debate during their oral arguments. They even went on to unearth oral discussions from the framers of the 1987 Constitution during the Constitutional Commission (ConCom). Their new interpretation of the words involving and either led to the reversal of their decision from unconstitutional to constitutional. And that ladies and gentlemen is what they call magic.
Clearly, the second decision is tinted with the Filipino saying ‘Kung ayaw may dahilan, kung gusto ay maraming paraan’. I’ll bet a lot of students of law after reading the case were scratching their heads saying ‘how the fuck did that happen’. This case is one of many cases, in my opinion, contrary to the intent and wisdom of our laws. Drafters of the 1987 Constitution might be rolling inside their graves upon knowing that their intent was not carried out in the December decision of Labugal B’laan case.
As of today, there is one pending case in our Supreme Court, again challenging the constitutionality of certain provisions of the Mining Act of 1995. Interestingly enough, then Atty, Marvic Leonen one of the petitioner of the Labugal B’laan case is now the Associate Justice of the Supreme Court. Also in the list is Chief Justice Sereno who’s also known as a champion of Indigenous Peoples’ rights. Her research work during her private practice speaks for itself. Notably her research work ‘The interface between national and Kalinga land law’ which was enshrined in our Philippine Law Journals later served as the bible for lawyers on land law conflicts here in the north.
Supreme Court recently had their oral arguments on the matter during their summer sessions here in Baguio. Will this pending case answer the Indigenous Peoples’ clamor against development aggression brought about the Mining Act of 1995? Will the two champions, now as our high court’s Associate and Chief Justices finally uphold the intent of our 1987 Constitution as it was envisioned by its framers?
These were the questions I wanted to ask Justice Leonen during his visit to our university. Sadly, too many of my fellows had many questions too during the open forum after his lecture, my question did not make it. Also, understandably the case is still pending and Justice Leonen as the current Associate Justice according to law must embrace the Sub Judice rule.
Be that as it may, my colleagues and I were enlightened by his lecture as to the proper usage of law and the responsibility behind its power. Indeed laws have an overwhelming power but depending on who is wielding it, laws can be use to displace indigenous peoples off their ancestral domains, exploit natural resources inside indigenous peoples’ domains, induce fear and terrorize the people who are taking a stand, militarized communities to use civilians as human shields like what’s currently happening in indigenous communities across the nation.
Laws matter according to Justice Leonen as to the ones who write them, who invokes them, and who gives them the most official interpretation. In other words, the coercive power of the law may alter the condition of parties. It can be a tool for social reform. However, it can also be an instrument to maintain a status quo. How it squares with reality is not pre-ordained by the text of its provisions. Its political, cultural and very human intervention that will determine its impact on our histories tragic story. As students of law we’re already agents tasked to seek justice.
With that, I’ll end this writing with a THANK YOU addressed to Justice Marvic Leonen.
