LEGAL MEMORANDUM

TO : Provincial Governor, Zamboanga Del Norte

FROM : Arnold Cabral and Friends Law Offices
RE : Whether or not the Office of the President can nullify an Ordinance

DATE : 7 November 2022

ISSUES
Can the Office of the President issue an order nullifying the Provincial Ordinance No. ZN-11-
128?
BRIEF ANSWER
No, the Office of the President cannot issue an order nullifying the Provincial Ordinance No.
ZN-11-128.
STATEMENTS OF THE FACTS
In August 15, 2011, the Sangguniang Panlalawigan of Zamboanga Del Norte passed
Provincial Ordinance No. ZN-11-128 which banned open-pit mining within its territorial
jurisdiction.1 It did not impose a ban on all mining activities per se, but it prohibited some forms
of mining activities that are otherwise allowed under the Philippine Mining Act of 1995. The
salient portions of the said Ordinance are quoted below:
Section 3. Definition of Terms. – As used in and for purposes of this
Ordinance, the following terms, whether in singular or plural, shall mean:
xxx
(f) Open cut land surface mining operation is the removal, scraping-off,
excavation and gathering of landsoil surface for the purpose of extracting
therefrom ores or minerals, including the construction therein of tailing and
leaching ponds;
(g) Open pit mining, under the common technical term used in the mining
industry is a method of extracting rock or minerals from the earth by removing,
excavating, cutting or breaking the overlaying materials or overburden to gather
and/pr expose the ore body which is drilled, blasted and loaded for haulage from
the put thereby making an enormous and wide land surface cavity. The term is
used to differentiate the form of mining from extractive methods that require
tunnelling into the earth. Open-pit mines are used when deposits of commercially

1
Province of Zamboanga Del Norte. Ordinance Zn-11-128.
useful minerals are found on the earth surface or near the earth surface; that is
where the over burden (surface material covering the valuable deposit) is
relatively thin or the material of interest is structurally unsuitable for tunnelling.
Open-pit mines are typically enlarged until the mineral resources (or the plot of
land) is exhausted) (citations removed) x x x
(i) Tunnel mining means subterranean mining operation wherein mineral ores are
gathered or extracted through construction of under ground tunnels; x x x
Section 4. Open pit and open cut land surface mining operations. –
Open pit and/or open cut land surface mining operations in Zamboanga del Norte,
as defined in Section 3(f) and 3(g) of this Ordinance, being destructive to the wide
range of non-renewable landbased resources, and would cause pollution,
depletion and loss of cropland, rangeland, forest cover, water and vegetative
resources and case extinction of animal and plant species, water and vegetative
resources in Zamboanga del Norte, shall be prohibited. x x x
Section 5. Mining methods not prohibited. – The following mining
methods are not prohibited under this Ordinance provided they are covered by
effective permits, to wit:
a) Panning and sluice mining
b) Mining or quarrying by a permittee of guano, gemstones, outcrop
boulders, rocks, sand, gravel, aggregates and pebble picking for
construction materials, provided that it shall not cause mudflow, soil
erosion and siltation of any body of water and will not involve
scraping, removal and gathering of land surface soil component and
shall not cause destruction of land resources;
c) Mining of solid mass of ore-bearing rocks, boulders or stones,
provided that it does not involve scraping, gathering, removal,
extraction and destruction of land surface soil component and it will
not cause mudflow, erosion and siltation of any body of water,
d) Mining or gathering of earth materials covering an area not exceeding
10,000 square meters of barren or unproductive lands, provided it will
not cause any mudflow, erosion and siltation of any body of water;
e) Tunnel mining operations as defined in Section 3 (i) of this Ordinance
and those not involving open pit and open cut land surface mining.
Provided, finally, that such mining operation shall not pollute or
cause destruction of spring, river, creek or body of water, water head
sources, watersheds, crops and forests.
Violation of the terms and conditions provided in this section is
punishable by the penalty provided in Section 4 of this Ordinance and
ground for the cancellation of the mining permit issued by the Provincial
Governor. x x x”
Pres. Noynoy Aquino promulgated Executive Order No. (EO) 79, s. 2012 stating that local
governments cannot withhold their consent to mining activities. The said EO provided that local
governments may only impose “reasonable limitations on mining activities”, to wit:
“SECTION 12. Consistency of Local Ordinances with the
Constitution and National Laws/LGU Cooperation. The Department of the
Interior and Local Government (DILG) and the LGUs are hereby directed to
ensure that the exercise of the latter’s powers and functions is consistent with and
conform to the regulations, decisions, and policies already promulgated and taken
by the National Government relating to the conservation, management,
development, and proper utilization of the State’s mineral resources, particularly
RA No. 7942 and its implementing rules and regulations, while recognizing the
need for social acceptance of proposed mining projects and activities.”
LGUs shall confine themselves only to the imposition of reasonable
limitations on mining activities conducted within their respective territorial
jurisdictions that are consistent with national laws and regulations.
Concerned government agencies, in particular the DENR, the Department
of Budget and Management (DBM), and the Department of Finance (DOF), are
hereby directed to ensure the timely release of the share of LGUs in the National
Wealth pursuant to Section 289 of RA No. 7160, or the Local Government Code
of 1991. These agencies are likewise directed to study the possibility of increasing
LGUS’ share as well as granting them direct access similar to existing
arrangements with the Philippine Export Zone Authority (PEZA).
LGUs, DENR, and the MGB working together shall strictly implement
RA No. 7076, to ensure the protection of the environment, address various issues
in small-scale mining, and ensure that violators thereof are subjected to
appropriate administrative and criminal liability. (emphasis supplied)
Following the issuance of EO 79, s. 2012, the Department of the Interior and Local
Government (DILG) issued Memorandum Circular 2012-181 dated 08 November 2012. It
directed all local governments to take measures to amend all existing ordinances regulating or
prohibiting mining activities.

DISCUSSION

Can the Office of the President issue an order nullifying Provincial Ordinance No. ZN-11-128?

The powers of the President are provided in Article VII of the 1987 Constitution, Section 17
thereof provides2:
Section 17 – The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.

2
1987 Philippine Constitution, Section 17
The above-stated provision is very clear that the President exercises control of executive
departments, bureaus, and offices. The provision speaks of faithful execution the control of
which is vested upon the President but nullifying an ordinance on the ground that it run counter
to national laws is not within its prerogative as the same lies within the power of the Supreme
Court. Questions of law shall be resolved by the Supreme Court. Provincial Ordinance No. ZN-
11-128 as alleged to be not in accordance to the Philippine Mining Act is an issue the Office of
the President has no authority to deal with.
The legislative body of a local government of Zamboanga Del Norte is the Sangguniang
Panlalawigan and the latter’s authority to enact ordinances for the protection and promotion of
the general welfare of the community is delegated by the Congress3, hence, the President has no
power to nullify an ordinance duly enacted by the Sanggunian.
Undersecretary for Local Government Marlo L. Iringan stated that DILG has only a general
supervision over LGUs but the Department (DILG) has no authority to invalidate any ordinance,
executive order issued by local executives, or resolution of the local Sanggunians4

CONCLUSION
In view of the foregoing premises, it is the submission of the undersigned that the Office of the President
cannot issue an order nullifying the Provincial Ordinance No. ZN-11-128.

3
MMDA vs. Garin, G.R. No. 130230, April 15, 2005 – “Our Congress delegated police power to the LGUs in the
Local Government Code of 1991.15 A local government is a "political subdivision of a nation or state which is
constituted by law and has substantial control of local affairs."16 Local government units are the provinces, cities,
municipalities and barangays, which exercise police power through their respective legislative bodies.”
4
DILG Opinion No. 88, s-2022