THE Department of the Environment and Natural Resources (DENR)’s closure and suspension of 28 mining companies can be appealed to President Rodrigo Duterte as part of due process, the Department of Finance (DOF) said on Thursday.
In a statement, Finance Undersecretary Bayani Agabin, who heads the DOF Legal Services Group, said that “as such, [the decision]can be reversed, modified or altered, if warranted” by Malacañang.
Agabin issued the statement in response to queries from the media sent to the DOF, the agency that co-chairs the Mining Industry Coordinating Council (MICC) with the DENR.
“We have not seen the orders nor the audit, so we are not aware of the grounds nor the manner by which DENR Secretary Gina Lopez has made her decisions,” Agabin said.
“As discussed during the MICC meeting last week, there is a need to observe due process. Due process is both substantive and procedural. Substantive due process means that there are valid grounds in law to support the cancellation. Procedural due process means the procedure for cancellation as provided for in the contract or under relevant laws were followed,” he added.
The DOF added that the MICC affirmed in its most recent resolution the primacy of both “procedural and substantive” due process in the final resolution of the DENR’s series of actions on existing mining contracts under mineral production sharing agreements (MPSAs).
Last week, the MICC discussed the DENR directive to shut down 23 mine sites and suspend the operations of five others.
During that meeting, the MICC issued Resolution 6, which stressed that the DENR and the council “recognize the requirements of due process in the applicable mining laws, rules and regulations,” and formed a panel to conduct a “multi-stakeholder review” of the performance of all existing mining operations.
Resolution No. 6 was signed by Lopez and Finance Secretary Carlos Dominguez 3rd.
The resolution stated that the MICC “shall create a multi-stakeholder review and advise the DENR on the performance of existing mining operations in consultation with the local government units (LGUs). The review shall be based on the guidelines and parameters set forth in the specific mining contract and in other pertinent laws, taking into account the valid exercise of the State’s police power to serve the common good, especially of the poor.”
Agabin noted that the existing MPSAs granted to mining companies are contracts between the government and mining contractors. “If there are provisions for dispute resolution, this should be observed. If there are grounds for termination, these should be the basis for any termination,” he said.
“As a general principle of law, decisions of Cabinet secretaries are appealable to the President since the former are alter egos of the latter. As such, their decisions can be reversed, modified or altered, if warranted,” Agabin said.