Thursday, September 13, 2007
Musings on Proposed Quarry Ordinance in Pampanga
According to news report, the Pampanga Mayor’s League (PML) has proposed an ordinance seeking a bigger share of revenues for sand-rich municipalities and barangays and stronger regulatory powers over the quarry industry. The Provincial Board tackled the planned measure (Ordinance No. 172)in its regular session on Sept. 10.
Let me share my observations on this proposed ordinance.
1. The proposed ordinance is loaded with defects and fraught with ambiguity.
It lacks adequate authority. No provisions of law are cited to support the proposal that mayors are mandated to regulate quarry industry except Sec. 138 of the LGC, which is now the subject of amendment in Senate Bill No. 1161 being introduced by Sen. Pimentel. The bill seeks to amend various provisions of LCG and requires the promulgation of Implementing Rules and Regulations. With this development, the proposed measure is seemingly premature.
The body of the proposal lacks the salient features of an ordinary ordinance like purposes and objectives, declaration of policy, definition of terms and governing laws.
This ordinance may partake of the nature of tax law which requires holding of public hearing and approval by the Secretary of Finance in addition to the usual requisites of publication of ordinance. (Tuazon vs. CA, 212 SCRA 739). Section 10 of the proposed ordinance is not compliant with this requirement.
The repealing clause practically obliterates all existing ordinances, memoranda, orders and issuance, to wit :
Section 8. Repealing Clause. All previous ordinances, memoranda, orders and issuances by the Province are hereby repealed and/or modified accordingly.
Section 8 clearly indicates that this ordinance automatically repeals all previous ordinances, memoranda, orders and issuances, meaning all previous ordinances enacted by the first PB up to time this ordinance is approved are no longer existent.
The Repealing Clause should have been worded in this manner :
All previous ordinances, memoranda, orders and issuances by the Province are hereby repealed and/or modified accordingly insofar as they are inconsistent with the provisions of this Ordinance.
The proposed ordinance also violates Sections 42 to 52 of Republic Act No. 7942 (Philippine Mining Act of 1995) which defines the power of the governor to issue permits (small-scale mining, quarry, commercial sand and gravel, government gratuitous, private gratuitous, guano and gemstone gathering and regulate the mining industry.
2. The Local Government Code (LCG) provides that permit to extract sand, gravel and other quarry resources shall be issued exclusively by the provincial governor. This exclusive power carries an ancillary power to regulate the quarry industry. The proposed ordinance, in effect, delimits the regulatory power of the governor over quarry industry.
I feel this is beyond the legal authority of the mayors. It’s a clear ultra vires act which may render the proposed ordinance void if judicially challenged.
3. In paragraph 1 of Section 138 of the LCG, the provincial government “may” collect or levy not more than ten percent (10%) of fair market value in the locality per cubic meter of quarry materials.
This provision is directory in nature in that it gives liberty to the provincial government as to how much of tax is to be levied on quarry resources subject to certain restriction (not more than 10% of fair market value). Based on this, 150 pesos tax on quarry materials per truck load and 150 pesos administrative fees for regulating the industry including the allotment of tax proceeds (45-45-60) was formulated and sanctioned by the Provincial Board and the national government (DENR).
The mayors now want the administrative fee be abolished and their share of the revenues increased by 45 pesos per truck load load. Why only now? Why they did not do so during the incumbency of the Lapids? What’s wrong with the present system? Is it because they are now unable to extract money from extraction of the quarry materials?
While the governor’s exemplary quarry collections has received accolades from countless of Filipinos around the world and prominent journalists, our honorable mayors are now attempting to remove the transparency with which the quarry revenues are being collected by Governor Ed.
Aren’t they proud that the quarry collection is now free from corruption and the quarry monies do not go anymore to the pockets of the governor and other corrupt government officials? What kind of mayors and PB members do we have? How can the province grow when we have grown-up officials who openly undermine the progress we are all dreaming of?