On the Imperatives of Social Justice in Law and Mining

[23rd National Convention of the Association of Law Students of the Philippines, 4/25/12]

We am truly honored that your organization, composed of representatives of law-student governments from all over the country have selected Ateneo de Davao University as the venue for your 23rd National Convention. I am all the more pleased to know that your convention theme focuses on the pressing concerns about Mining in the Philippines with the objective of coming up with better legislation than we now have.

This convention could not have come at a more opportune time. There is a burning public controversy on mining in the country today; it is a controversy that shall continue to rage for a long time. The issues are many. Who benefits from mining anyway? The Filipino or the foreigner? The general interests of the Filipino people or the private insatiable interests of a very small but select group of profit-seeking capitalists? The claim is made that mining is for national development. The claim is made that mining brings jobs to people and alleviates poverty. The claim is made that mining is about trees. Or that mining is about roads and school houses and the development of indigenous peoples. There are however counterclaims: that mining is about reckless environmental destruction that benefits some but certainly not all in society, that mining is about the deprivation of indigenous peoples of their ancestral domains and they conscious and systematic undermining of those rights through sham consultation processes that take advantage of people’s vulnerabilities and undermine and manipulate their freedom and dignity, that mining is about the destruction of the forests, the destruction of biodiversity, the destruction of the people’s sources of fresh water, about the destruction of food security. In this controversy, we have seen our own version of the Wrath of the Titans in Manila’s air-conditioned Olympian Halls: Gina Lopez has called Manny Pangilinan a liar; Manny Pangilinan has called Gina Lopez a liar. Just as large-scale mining has thunderously decried the environmental sins of small-scale mining and has called destruction on their competing tunnels and their, small scale miners, many of them very poor, very hardworking, and very Filipino, have decried the rapaciousness of foreign greed in large scale mining and the unfairness of foreigners depriving poor Filipinos of their livelihood in their own homeland.

Here at the Ateneo de Davao I have encouraged the members of our university community get involved in this discussion. They have. We are concerned about the long-term viability of our economy. Once this island was covered with old-growth, hardwood forests; those forests were destroyed for the private benefit of some. Now the focus is on Mindanao minerals. We are concerned about our food security. We are concerned about the longterm welfare of our indigenous peoples. We are concerned about peace. Mining affects all of these concerns. Recently, in order to understand the issues more deeply, in academic freedom, we held an International Conference on Mining. Based on what we saw at that conference, we said no to mining until the national policy on mining might become more favorable to the Filipino people, and more respectful of the environment. That position, we have publicly advocated in the Halls of Congress and in Malacañang. It is a position which environmentalists applaud; a position which the Chamber of Mines – and among them some of our erstwhile supporters and friends – deeply resents.

Today I am glad I am talking to law students interested in the problems of mining. I am pleased that students of our own law school are here. Prior to any discussion of the legal details of the mining issue, however, I think it is important to reassert the responsibility of those who are associated with the law profession for justice. This includes you. There is still a connection between law and justice, isn’t there? This may seem like a very cynical question. But in the light of an ongoing impeachment process whose respondent is the Chief Justice of the Supreme Court himself, in the light of a judiciary and penal system that cry out to heaven for reform, in the light of a law profession and renowned law firms that seem systematically to blind themselves to the claims of justice, this question is not cynical, but necessarily probative of the motivation of why you are students of law at all. It is not enough to say, “My father told me to study law.” Just like it is not acceptable to say, “The senior partner instructed me to do it;” or worse: “The devil made me do it.” In justice, students of law must be sensitive to the claims of commutative justice, the justice achieved in the fulfillment of just contracts. They must also be sensitive to the claims of distributive justice, where government equitably distributes the burdens and benefits of society to its members. But they must also be sensitive to the claims of social justice as a permanent, paramount, compelling and professional concern. The claims of social justice are not easy. They are the claims of the common good. These are the claims of human well-being in a global human community today, where human responsibilities to God, to one another, and to the created world must be met. Social justice is an ongoing human pursuit, for which the law students and the representative of law must have an abiding personal and professional concern. For ultimately, it is the claims of social justice that must be expressed in all law. Where laws no longer contribute to social justice they must be repealed, and replaced with laws that do. When propositions probably shall advance the common good, they ought be represented and advocated, that they may be enacted into law. When the common good – social justice – demands that the laws governing the acceptability of this or that contract or the equitability of this or that dispensation in distributing social benefits and burdens be altered, then those laws must be changed. Social justice is the heart of just laws, and justice demands that the law always be the best realization of social justice in any historical situation.

In the context of social justice, it is good to recall the Catholic teaching on the universal destination of created goods. There are many official texts that one can consider. I ask you only to consider one:

“It is necessary to state once more the characteristic principle of Christian social doctrine: the goods of this world are originally meant for all. The right to private property is valid and necessary. But it does not nullify the value of the principle. Private property in fact is under a “social mortgage” – which means that it has an intrinsically social function, based upon and justified precisely by the principle of the universal destiny of goods” (JP II, Sollicitudo Rei Socialis, n. 42). *
In this context the distinguished theologian Charles Curran states in his book entitled “Catholic Social Teaching”:

“…for contemporary Catholic social teaching, the first thing to be said about material goods is their common purpose and destiny to serve the needs of all. The absoluteness of private property is denied. In this life, private property must always be justified by how it relates to the destiny of the goods of creation to serve the needs of all. Private property is not the first and most important reality with regard to the understanding of material goods and wealth.

In my view, it is in the context of social justice and the correlate principle of the “universal destination of created goods” that the student of law should consider the challenges of mining in the country today.

I am reminded by Article XII, Section 6 of our 1987 Constitution which provides that: “the use of property bears a social function, and all economic agents shall contribute to the common good.”

The common good is the shared human good where relationships to God, (including ethical imperatives), to human beings (not only this generation but future generations as well), and to the environment (in a fragile archipelagic setting) are honored and respected even in economic pursuits.

In extractive industries, such as mining, where resources are not renewable, the use of property as having a “social function” or as being “encumbered by a social mortgage” takes on a more urgent meaning. Especially where the Constitution itself already provides in the pursuit of social justice that the minerals of this country belong to the State, meaning minerals belong to all and not just government, (Art XII, Sec 2), this should not be undermined by bad law.

In my view, a law which allows foreigners to come in as contractors of the state in the extraction of minerals that belong to all, but then to haul these minerals away to foreign countries for the private benefit of some, including the private benefit of some Filipino collaborators, with State participation in the minerals “from null to nil,” is contrary to social justice. In stating this, you know that I am referring to the Philippine Mining Act of 1995 with its infamous provisions for Financial Technical Assistance Agreements (FTAA), that have been characterized by Dr. Lina Regis of the Ateneo de Naga University as treasonous.

A law which allows large scale miners to enter into our country and extract our minerals at the cost of serious and irreparable ecological damage is contrary to social justice. This includes concrete plans for a SMI/Xtrata copper and gold mine in South Cotabato that will kill old-growth forests and damage biodiverstity to construct an open pit, 500 has. large and 800 meters deep, hoard the fresh water of the Koronadal valley in order to drive its toxic slurry to the Davao Gulf, create a mountain of toxic waste, and build a dam to contain toxic water dangerously atop an earthquake fault and just 12 kilometers away from Mt. Matutom, which is still classified as an active volcano. It also includes the environmental destruction caused by unregulated and undisciplined small scale mining. The environment, as a mother of life, is for all; in social justice, it is to be protected for the shared use of all; its eventual exploitation in the Philippines is for its measured use for the benefit of all human beings in Philippines society, not only for this generation but for all generations to come. We know the reality (and not merely possibility) of destruction due to foreign mining that occurred in the Marcopper Tragedy of Marinduque in 1996. That was destruction with impunity because of the inadequacy of law governing mining. To date, Marcopper has refused to take responsibility for the environmental damage it caused. We also know the reality (and not merely the possibility) of environmental degradation and harm to human lives caused by small scale mining in such places as Mt. Diwata and Mt. Diwalwal in Davao and Compostela Valley.

Laws which allow Indigenous Peoples to be deprived of their ancestral domains against a relative pittance for compensation, often due to unscrupulous practices that elicit anything but free and informed prior consent in the interests of large-scale mining are against social justice. The preservation of ancestral lands for indigenous peoples is an imperative of our recognition and acceptance of the cultures and traditions of these ancient populations. It is not in the interests of the common good that these cultures be allowed to die. **

Laws which allow government agencies, tasked to protect the interests of the State and its people, to align themselves with private companies for economic or pecuniary benefits through the infringement of human rights and the fabrication of FPICs (free prior and informed consent) and such other documentary requirements and are against social justice.

Laws which do not allow even the political representatives of local communities to protect their environment from potentially disastrous projects are against social justice.

Much, much more can be said on this topic of mining in the Philippines. In this forum of law students from all over the Philippines, my intention has not been to go into a systematic discussion of the legal complexities of the present laws governing mining and their possible replacement by pending laws in Congress like the Minerals Management Bill which we support. I used it rather to illustrate an imperative for all law students of the Philippines: that with their hard and arduous study of positive law and accompanying jurisprudence and professional practice, they embark on a similarly rigorous and taxing journey – the need to proactively promote justice – commutative, distributive, but most especially social justice – as an abiding concern

Meanwhile, may I urge you: stay true to the ideals of your profession. In the arena of environmental protection and advocacy, the law is meant to serve the common good and not the good of a few. The law is intended to uphold the truth and not to hide the truth. The law is meant to give more to those who have less in life and to correct social imbalances. I challenge you to be at the forefront of initiating or supporting efforts in law reform and in the improvement of the administration on of justice as enshrined in Canon 4 of your Code of Professional Responsibility. If in this spirit, you find your way to saying no to mining in Palawan, or to saying no to the proposed mining activities in South Cotabato, or to saying no to a DENR that is at one and the same time the supposed protector of our environment but also its official exploiter, or to urging this Administration to come up with an Executive Order on Mining that will better respect the Philippine environment and Filipino people, then we share a position in social justice. That would make me happy.

Thank you and good day.

___________

* In 1931 Pius XI already spoke about boundaries imposed by the requirements of social life upon the right of ownership itself or upon its use” (Quadragesimo Anno, n 48). But abuse of private property to the detriment of the poor and deprived in society has motivated an ongoing, developing doctrine of the social dimension of private property in contemporary Catholic Social Doctrine. This is also based on doctrine coming from Thomas Aquinas: “Human beings are to use their goods as though they are common and not proper because these good should serve the needs of all.” Consider: “God has given the earth to the use and enjoyment of the human race” (Rerum Novarum, n 6). Ownership then is an instrument of the common good. During the Vatican Council, Gaudium et Spes declared: “God intended the earth and all it contains for the use of every human being and people. Thus, as all people follow justice and unite in charity, created goods should be in abundance for all in like manner. Whatever the forms of ownership may be, as adapted to the legitimate institutions of people according to the diverse and changeable circumstances, attention must always be paid to the universal purpose by which created goods are meant. In using them therefore, a person should regard one’s lawful possessions not merely as one’s own but also as common property in the sense that they should accrue to the benefit not only of oneself but of others. For the rest, the right to have a share of earthly goods sufficient for oneself and for one’s family belongs to everyone” (GS, n. 69). Finally in Populorum Progressio Paul VI states emphatically: “All other rights whatsoever, including those of property and free commerce, are to be subordinated to this principle. They should not hinder but on the contrary favor its application. It is a grave and urgent social duty to redirect them to their primary finality” (Populorum progression, n 22). “Private property does not constitute for anyone an absolute and unconditioned right” (n. 23). Underscoring mine. In the public discussion on mining, in my view, the demands of social justice must take preeminence over the demands of commutative justice.

** When the former Pres. Arroyo enacted EO 270 and 270 A which revitalized mining in the Philippines, government only reinforced the unjust situation and allowed for the encroaching of some mining companies into seventeen important biodiversity areas, 35 national conservation priority areas, and 32 integrated protected areas. Scant regard has been given to the dislocation of communities, the risks to health and livelihood and massive environmental damage – all under the promise of economic benefits.

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About Joel Tabora, S.J.

Jesuit. Educator
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