Division or en banc
This is about a dispute over which decisions of the Supreme
Court should be held definitive and final.
Is it the ruling made en banc or can the same decision be
superceded by a division of five associate justices.
On July 16, 1991, the Fernan Court ruled virtually
unanimously (one member dissented) to dismiss a petition for certiorari filed by
Apex Mining and affirmed an appealed decision of the Office of the President.
That should have been it. We thought that the entry of
judgment made the ruling final and executory and made part of the law of the
land. But that was not the way it was going to be, according to records obtained
from the files of the Supreme Court.
On June 23, 2006, the SC first division, in Ramos (member of
a mining group which has claims over mineral areas) vs Southeast Mindanao Gold
Mining Corp., ruled that "we hereby reverse and set aside the decision of the
Court of Appeals , dated 13 March 2002, and hereby declare the EP (exploration
permit) of MMC which had expired on 7 July 1994 and its subsequent transfer to
Southeast Mindanao Mining on 16, Feb. 2004, is void."
The ruling also stated the division affirmed "the findings of
the Court of Appeals in the same decision declaring DENR Administrative Order
No. 66 illegal for having been issued in excess of the DENR secretary's
authority."
Two MRs
Southeast Mindanao Gold Mining filed a memorandum for
reconsideration, saying that the decision of the division reversed the doctrine
that only the Supreme Court en banc is allowed to reverse a decision made en
banc.
The lawyers of Marcopper said "the decision in effect states
that the mining rights that Marcopper acquired are no longer property in its
highest sense which may be sold or conveyed and will pass by descent."
"The decision made mining rights subject to nullification by
the force of a provision in a printed form in a permit issued by a bureau level
of government. There is a world of difference between mining rights and mere
exploration permits."
The lawyers also decried the division ruling which they said
empowers a mere declaration to deprive a claim owner of his mining rights,
rights that are recognized in previous decisions of the Supreme Court itself.
What bothers lawyers most is their belief that the division
decision allowed the intrusion of a subsequent proclamation into cases already
pending with the Supreme Court.
The second motion for reconsideration asked the division to
refer the issue to the Court en banc. That was six months or so ago, but the
motion is not moving at all.
Bone of contention
The dispute between Marcopper which wholly owns Southeast
Mindanao Gold Mining and the many other claimants, including Apex, is over the
interpretation of mining rights and exploration permits.
Marcopper contends that they are different. The company,
through counsel, argues that "mining rights pertain to the right to mine or
extract minerals."
On the other hand, "an exploration permit is merely the
permission to conduct exploration activities in reserved lands."
The en banc decision notes that "Marcopper was one of the
first mining claimants in the disputed area, having registered its 16 claims on
January l9 and 20, 1984."
Marcopper later realized that its claims are within existing
forest reservation established as early as 1931 by a proclamation of then Gov.
General Dwight Davis.
Marcopper admits that it used the wrong procedure and
abandoned its 16 claims.
It applied for a prospecting permit instead in compliance
with the Davis proclamation.
The permit was granted. It later discovered that the area has
strong possibilities of having commercial quantities of mineral ore.
Thus it applied for a permit to explore which was granted on
March 10, 1986. It turned out that Marcopper's area covered by the permit is
also the subject several claims and declarations by Apex.
Null and void
The issues in the case are sticky. Apex Mining sought to
dismiss Marcopper's petition, saying that the latter's claims are not within any
established or proclaimed forest reserves.
Therefore, the acquisition of mining rights must be
undertaken through the filing of an application to prospect.
The Bureau of Mines and GeoSciences agreed and declared as
reversed Marcopper's permit to explore.
Marcopper elevated its case to the Department of Environment
and Natural Resources which overturned the decision of the Bureau of Mines. The
DENR said that "accordingly, permit to explore No. 133 of Marcopper is hereby
declared valid and subsisting."
This decision was also upheld by the Office of the President.
Apex appealed the decision but then assistant executive secretary for legal
affairs Cancio C. Garcia (now a retired associate justice of the Supreme Court)
dismissed the appeal of Apex for lack of merit.
That is the reason the en banc decision is called Apex Mining
versus Cancio Garcia. The en banc decision also observed that "the main issue in
this case is whether or not the disputed area is within an established and
existing forest reserve."
"The answer is in the affirmative," said 14 justices,
including Chief Justice Marcel Fernan."
Division decision
In the decision penned by Justice Minita Chico Nazario, with
the concurrence of then Chief Justice Artemio V. Panganiban, Consuelo Ynares
Santiago, Alicia Austria Martinez and Romeo Callejo, the first division ruled
that Exploration Permit No. 133 of Marcopper Mining expired on July 7, 1994 and
that its subsequent transfer to Southeast Mindanao Mining on 16 Feb. 1994 is
void.
In the earlier en ban decision the Court ruled that "findings
of fact .must be respected as long as they are supported by substantial
evidence, even if not overwhelming or preponderant."
The first division nullified the findings of facts although
the lawyers of Marcopper declare that the Court is not a trier of facts but the
last interpreter of the Constitution and the laws.
The lawyers are bothered by the refusal of the division to
refer their two memoranda for reconsideration to the Court en banc.
They continue to claim that a division cannot reverse the
ruling of the Court on banc.
