By Atty. Julius Gregory B. Delgado
CAN THE DENR SECRETARY SIGN A FINANCIAL OR TECHNICAL ASSISTANCE AGREEMENT (FTAA) AND ITS RENEWAL UNDER THE DOCTRINE OF QUALIFIED POLITICAL AGENCY?
A mining project is technically a project of the National Government with the State being the owner of the mineral resources under the so-called Regalian Doctrine. A mining company can be a contractor by entering into a mineral agreement with the National Government. One of those mineral agreements is the so-called Financial or Technical Assistance Agreement (FTAA). FTAA, which was declared valid by the Supreme Court in the case of La Bugal-B’laan Tribal Association, Inc. vs. Ramos, allows local or foreign financial and technical investments to develop big-ticket mining projects. Under Section 33, Chapter VI of Republic Act No. 7942, otherwise know as the Philippine Mining Act of 1995, to wit: “Any qualified person with technical and financial capability to undertake large-scale exploration, development and utilization of mineral resources in the Philippines may enter into a financial or technical assistance agreement directly with the Government through the Department (of Environment and Natural Resources.” Section 37 of the same law provides that if the proposal is meritorious in form and substance after evaluation and after finding out that it will not impair or prejudice existing mineral agreements and mining rights, the DENR Secretary shall recommend its approval to the President. Hence, by law, it should be the President who should sign the same.
However, can the Secretary, as alter ego of the President, sign FTAA and its renewal? This author opines in the affirmative under the doctrine of Qualified Political Agency. As recently restated by the Supreme Court in Executive Secretary, et al., vs. Pilipinas Shell Petroleum Corporation, G.R. No. 209216 (February 21, 2023), the doctrine recognizes the multifarious responsibilities a President faces which calls for the delegation of certain responsibilities to the Cabinet Members. It posits that the heads of the various executive departments stand as President’s alter egos permitted to act on behalf of the President. The Court further held that in other words, the President may carry out their functions through the heads of the executive departments. The Secretaries of each department function as the President’s alter egos; however, they are not given complete discretion over how to exercise the delegated authority. The doctrine dictates that the president retains control, having the authority to “confirm, modify or reverse the action taken by his department secretaries.”
Citing the case of Villena vs. Secretary of Interior, G.R. No. L-46570 (April 21, 1939), the Supreme Court held in Executive Secretary, et al. vs. Pilipinas Shell Petroleum Corporation, supra, that there are instances wherein it must be the President alone who should exercise a power vested under the 1987 Philippine Constitution. However, takeover of businesses in times of emergency is not one of them.
“Thus, while some powers require, for practicality’s sake, delegation to the alter egos, a number of constitutional provisions specifically require a positive action from the president themself. As stated in Villena, these include the president’s power to pardon, declare martial law, and suspend the privilege of the writ of habeas corpus. These are exceptional presidential powers that, if exercised, would require the suspension of fundamental liberties. Moreover, these instances require the chief executive to act personally because the exigencies of the situation demand it. Thus, for a power to be placed in this special category, it must be shown to hold the same weight or exceptional significance as those enumerated above.
Notably, and as observed by Justice Caguioa, the temporary takeover power does not belong to the ‘special class of constitutionally[ ]vested powers’ exclusive to the president. Certainly, the temporary control over oil industry entities does not involve the suspension of constitutionally protected liberties, but the regulation of the operation of a public utility or a private enterprise that affects public interest. This does not entail that the president personally handle the takeover. As specified by the law, the takeover authority will be employed during national emergencies; it would be unreasonable to expect the president to exercise all of the control powers simultaneously and in person during such times. Consequently, the president would require the assistance of their alter egos in addressing the numerous issues at hand.”
In Executive Secretary vs. Pilipinas Shell Petroleum Corporation, supra, the Supreme Court held as valid and constitutional Section 14 (e) of Republic Act No. 8479 (Downstream Oil Industry Deregulation Act of 1998) which authorizes the Department of Energy to take over operations of private entities in the oil industry given certain conditions, to wit: “In times of national emergency, when the public interest so requires, the DOE may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any person or entity engaged in the Industry.” The Supreme Court ratiocinated that their actions related to their official duties and responsibilities are presumed to be the President’s and are valid and binding unless the President disapproves or repudiates the same. Finally, their acts are subject to ratification or rejection of the President; any exercise contrary to the President’s intent or instructions shall be deemed ultra vires and an unconstitutional usurpation of executive power.
Applying the above-cited case and restatement of the doctrine of Qualified Political Agency, it is arguable that the DENR Secretary may sign a new FTAA and its renewal considering that it is not among those powers which the President should personally and solely exercise to the exclusion of all others, including his Cabinet Members.