IP champion Leonen and the oppressive Mining Act of 1995

First off, 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 in
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 Labugal Blaan, where then Atty. Marvic Leonen legally
counseled and as one of the petitioners, represented the indigenous peoples of the
south against capitalist Western Mining Corporation Philippines Inc. (WMCP), who
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 publicly
listed major Australian mining and exploration company.
This WMCP displaced hundreds of indigenous peoples away from their dwelling 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 development project scored numerous cases of human
rights violations against the indigenous peoples due the militarization that came
subsequently after the entry of the WMCP.
Using our very own Arm Forces of the Philippines, WMCP suppressed the indigenous
peoples at the expense of their rights only to forward foreign interest. Quite ironic
because our arm forces who vowed to protect the interest of people were being
used as guard dogs to protect the foreign owned Mining Company against the
people, who as mandated by our law, they must protect and serve. You need not to
be rocket scientist or to finish law school to see that this atrocity against our
indigenous peoples brothers and sisters is wrong.
Here now enters then Atty. Marvic Leonen, he as a private practicing lawyer
petitioned and challenged the constitutionality of the RA 7942 or 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 together 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, Mining Act of 1995 must
be in consonance with the text of Section 2, Article XII of the Constitution. FTAAs
should be limited to technical or financial assistance only. It should be observed
however, that, contrary to the language of Constitution, the WMCPs FTAA allows

WMCP, a foreign fully-owned mining corporation, 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 WMCPs
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 courts 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 Einsteins 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 at
a panic upon knowing the Supreme Courts decision. The decision was expected to
fall into Jurisprudence which will form as parts 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 courts. 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 unearthed oral
discussions from the framers of the 1987 Constitution during the Constitutional
Commission (CocCom). 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. Ill 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
Blaan 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 Blaan case is
now the Associate Justice of the Supreme Court. Also in the list is Chief Justice
Sereno whos 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 courts 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 asked Justice Leonen during his visit in our
university. Sadly, due to numbers of questions being asked by my fellows during the
open forum after his lecture, my question did not made the cut. 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, me together with my colleagues 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 of the ones 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 whats
currently happening in indigenous communities across the nation.
Laws matters 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. It is political,
cultural and very human intervention that will determine its impact on our histories
tragic story. As students of law were already agents tasked to seek justice.
With that, Ill end this writing with a THANK YOU addressed to Justice Marvic Leonen
and may your tribe multiply.