THE SECRETARY of Justice recently warned local officials of South Cotabato that they face administrative charges for enacting a resolution banning open-pit mining (Edu Punay, South Cotabato execs may face raps over open pit mining ban, Philippine Star, Jan. 31, 2012). This warning is the latest in a string of national government attempts to weaken opposition to open-pit mining in a number of provinces.

Justice Secretary Leila de Lima’s objection to the province’s resolution is not based on an alleged violation of law. Instead she cites a policy or “standing position” of the Department of Interior and Local Government (DILG) to allow open-pit mining in the country.

The Secretary’s statement is misleading and lacks legal basis. The statement also reveals a change in legal theory.

For an ordinance to be valid it must conform to well-established principles: In Tatel v. Virac (G.R. No. 40243, March 11, 1992) the Supreme Court held that a municipal ordinance must (1) not contravene the Constitution or any statue (2) not be unfair or oppressive (3) not be partial or discriminatory (4) not prohibit but may regulate trade (5) be general and consistent with public policy, and (6) not be unreasonable.

In those cases when the Supreme Court invalidated ordinances, “the national laws were clearly and expressly in conflict with the ordinances/resolutions of the LGUs.” The court stated that in these cases, “the inconsistencies were so patent that there was no room for doubt.” (Social Justice Society v. Atienza, Jr., G.R. No. 156052, February 13, 2008).

Neither the DILG nor the Department of Justice (DoJ), however, has identified any provision of law that the ban ostensibly violates.

This is probably why the Secretary of Justice is now citing the “standing position” of the DILG to allow open-pit mining. She argues that the ordinance is invalid because it “must be general and consistent with public policy.” This argument finds no support in case law.

Let me address some preliminary matters.

The Secretary of Justice claimed that, “Whenever we issue [an Opinion] on any legal issue or concern referred to us, we deem our views expressed therein as having strong persuasive effect, especially among government functionaries and as such we are entitled to respect.” The Secretary’s statement is incomplete. The principle is not directed at all government functionaries, but rather at courts whenever they are engaged in the interpretation of laws. The Supreme Court has held that statutory interpretations of executive bodies (like the Department of Justice) “do not hold decisive sway upon the judiciary but are merely persuasive.” (The City of Davao v. The Regional Trial Court, Branch XII, G.R. No. 127383, August 18, 2005). The opinion of the Secretary of Justice does not have a controlling effect upon the Supreme Court (Paa v. Chan, G.R. No. L-25945, October 31, 1967).The Secretary’s Opinions are opinions and are not necessarily correct.

I am unaware of any DILG policy or position, which allows open-pit mining.

I also cannot find a Supreme Court decision that invalidated a local measure because it violated a public policy. There are cases, however, where the Supreme Court cites public policy to invalidate contracts that are intended to circumvent the law or because they are simply unfair. For example:

In International School Alliance of Educators v. Quisumbing (G.R. No. 128845, June 1, 2000), the court invalidated a school’s practice of giving higher salaries to foreign employees.

In Gatchalian v. Delim (G.R. No. 56487, Oct. 21, 1991), the court nullified a waiver by an injured passenger to claim damages arising from an accident because it would “dilute and weaken the standard of extraordinary diligence exacted by the law from common carriers and hence to render that standard unenforceable.”

Contracts that contain fixed periods of employment that are used to prevent the workers’ acquisition of security of tenure are invalid (Caramol v. National Labor Relations Commission, G.R. No. 102973, August 24, 1993).

An employment contract cannot be used to circumvent the compulsory coverage of its employees under the Social Security Law (Republic of the Philippines v. Asiapro Cooperative, G.R. No. 172101, November 23, 2007).

An employer must have a legal basis for dismissing an employee and cannot insist that the dismissal was validly effected pursuant to the provisions of her employment contract (Philippine National Bank v. Cabangsa, G.R. No. 157010, June 21, 2005).

May these cases be applied where a local government bans open-pit mining? When local governments enact such measures they do so to protect the health of their constituents, and the environment from the destructive effects of mining. Both health and environmental protection are constitutionally recognized rights.

The Supreme Court has upheld local government efforts to protect the environment. It upheld a city ordinance banning the shipment of all live fish and lobster outside Puerto Princesa City for specified periods, as well as a resolution by Palawan prohibiting the catching, gathering, possessing, buying, selling, and shipment of live marine coral dwelling aquatic organisms (SeeTano v. Socrates, G.R. No. 110249, August 21, 1997).

Invalidating bans on open-pit mining based on public policy would suggest that local measures designed to protect public health and the environment should be invalidated because it contradicts a national policy that allows open-pit mining. This proposition offends the constitutional directives on local autonomy and should never be sanctioned by courts.

The national government should work with local officials to ensure that the latter’s concerns are adequately addressed. Perhaps there can be a more constructive approach to mining that does not require straining the legal system beyond recognition or conjuring arguments that find no support in law.

The author is associate professor of the UP College of Law and teaches Constitutional Law and Local Government Laws, among others. He is a fellow of Bantay Kita.