Intervenors MR CA Main Case

8/3/2019 Intervenors MR CA Main Case

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Republic of the Philippines

Court of AppealsMINDANAO STATION

Cagayan de Oro City

SPECIAL DIVISION OF FIVE

PILIPINO BANANA GROWERS AND CA- G.R. CV No. 01389-MINEXPORTERS ASSOCIATION, INC.,DAVAO FRUITS CORP., ANDLAPANDAY AGRICULTURAL AND

DEVELOPMENT CORPORATION,Petitioners-Appellants, Members:

-versus- Borja, R.V.,Lim, Jr., R.F.,

CITY OF DAVAO, Pizarro, N.B.,Respondent-Appellee. Lantion, J.A.C., and

Elbinias, M.P., JJ.WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON,

CRISPIN ALCOMENDRAS,CORAZON SABINADA, GERALDINECATALAN, VIRGINIA CATA-AG,REBECCA SALIGUMBA, FLORENCIASABANDON, CAROLINA PILONGCO, ALEJANDRA BENTOY, LEDEVINAADLAWAN, Intervenors-Appellees.x--------------------------------------------------------x

MOTION FOR RECONSIDERATION

INTERVENORS-APPELLEES Mosqueda, et. al, through the

undersigned counsels, most respectfully move for the reconsideration of

the Decision dated 9 January 2009 of this Honorable Court, a copy of

which was received by our office by registered mail on 17 January 2009,

on the basis of the following arguments:


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PREFATORY STATEMENTS

While the right to a balanced and healthful ecology is to be found

under the Declaration of Principles and State Policies and not under the Bill

of Rights, it does not follow that it is less important than any of the civil

and political rights enumerated in the latter. Such a right belongs to a

different category of rights altogether for it concerns nothing less than

self-preservation and self-perpetuation aptly and fittingly stressed

by the petitioners the advancement of which may even be said to

predate all governments and constitutions. As a matter of fact, these

basic rights need not even be written in the Constitution for they are

assumed to exist from the inception of humankind. If they are now

explicitly mentioned in the fundamental charter, it is because of the well-

founded fear of its framers that unless the rights to a balanced and

healthful ecology and to health are mandated as state policies by the

Constitution itself, thereby highlighting their continuing importance and

imposing upon the state a solemn obligation to preserve the first and

protect and advance the second, the day would not be too far when all

else would be lost not only for the present generation, but also for those

to come generations which stand to inherit nothing but parched earth

incapable of sustaining life.Juan Antonio Oposa et. al. v. Fulgencio

Motion for Reconsideration page 2


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Factoran Jr. et. al., G.R. No. 101083, July 30, 1993. En Banc.

(Emphasis supplied).

It is of course settled that laws (including ordinances enacted by

local government units) enjoy the presumption of constitutionality. To

overthrow this presumption, there must be a clear and unequivocal breach

of the Constitution, not merely a doubtful or argumentative contradiction.

In short, the conflict with the Constitution must be shown beyond

reasonable doubt. Where doubt exists, even if well-founded, there can be

no finding of unconstitutionality. To doubt is to sustain. Tao v.

Socrates, G.R. No. 110249, August 21, 1997;

In this case, appellants banana plantations and their association

failed to overthrow this presumption of constitutionality of the subject

Ordinance. Appellants have not presented a clear and unequivocal breach

of the Constitution, beyond reasonable doubt. If any, appellants merely

raised doubtful or argumentative contradiction, thus cannot be the basis in

this Courts finding of constitutionality. To reiterate, to doubt is to sustain;

This Court erred gravely in its findings of law in this case, shifting

such burden of proof to the proponents of the Ordinance, instead of the

appellants who question such constitutionality. It is now this Courts

opportunity to rectify its error and maintain a high standard of proof

beyond reasonable doubt from appellants, and not merely raise suspicion

on the validity of the subject Ordinance.



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GROUNDS

I

THIS COURT COMMITTED GRAVE AND REVERSIBLE ERRORS INGRANTING THE APPEAL CONSIDERING THAT THE SUBJECTORDINANCE IS A REASONABLE EXERCISE OF POLICE POWER AND AS SUCH, ENJOYS PRESUMPTION OF CONSTITUTIONALITYWHICH APPELLANTS FAILED TO OVERCOME.

A. THIS COURT ERRED IN STATING THAT THE THREE-MONTH TRANSITION PERIOD TO SHIFT TO GROUNDSPRAYING IS UNREASONABLE, OPPRESSIVE ANDIMPOSSIBLE TO COMPLY WITH.

B. THIS COURT ERRED IN PLACING THE BURDEN OF PROOF

ON APPELLEES IN FINDING SCIENTIFIC BASIS FORBANNING AERIAL SPRAYING, WHEN IN FACT SUCHBURDEN IS PLACED ON APPELLANTS TO PROVE THATAERIAL SPRAYING IS NOT NUISANCE TO PEOPLE ANDTHEIR HEALTH AND THE ENVIRONMENT

C. THIS COURT ERRED IN DECLARING THAT THE MEANSEMPLOYED HAS NO REASONABLE RELATION TO THEPURPOSE SOUGHT TO BE ACHIEVED.

D. THIS COURT ERRED IN PRONOUNCING THAT THE BANON AERIAL SPRAYING RUNS AFOUL WITH THE EQUALPROTECTION CLAUSE OF THE CONSTITUTION, APPLYING

A STRICT SCRUTINY APPROACH IN MAKING ALLOWABLECLASSIFICATIONS.

E. THIS COURT ERRED IN STATING THAT THE 30-METERBUFFER ZONE CONSTITUTES UNLAWFUL TAKING OFPROPERTY WITHOUT DUE PROCESS OF LAW.

II

THIS COURT COMMITTED GRAVE AND REVERSIBLE ERROR INTHEIR INVOCATION OF THE PRINCIPLE PRIMUS IN TEMPORE,POTIOR JURE , AN ISSUE NEVER RAISED IN THE TRIAL COURTNOR EVEN IN THIS APPEAL, SUCH THAT IT REFLECTS ON THE



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VIEW OF THE MAJORITY IN GRANTING THE APPEAL, CLEARLYPREJUDICING THE CASE AGAINST INTERVENORS.

DISCUSSION

I

This Court Committed Grave and Reversible Errors In Grantingthe Appeal Considering That the Subject Ordinance Is a

Reasonable Exercise of Police Power and As Such, EnjoysPresumption of Constitutionality Which Appellants Failed To

Overcome.

It is humbly submitted that this Honorable Court erred in issuing its

Decision dated 9 January 2009 granting the Appeal, stating therein:

WHEREFORE, premises considered, the appeal isGRANTED. The assailed September 22, 2007 Decision of theRegional Trial Court (RTC), 11th Judicial Region, Branch 17,

Davao City, upholding the validity and constitutionality ofDavao City Ordinance No. 0309-07, is hereby REVERSED andSET ASIDE.

FURTHER, the Writ of Preliminary Injunction dated 28January 2008 enjoining the City Government of Davao, and anyother person or entity acting in its behalf, from enforcing andimplementing City Ordinance No. 0309-07, is hereby madepermanent.

SO ORDERED.

With due respect to this Court, it committed grave and reversible errors in

granting the Appeal considering that the Subject Ordinance is a reasonable

exercise of police power and as such, enjoys the presumption of

constitutionality which appellants failed to overcome.



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In a long line of cases,1 the Supreme Court declared that

ordinances enjoy the presumption of regularity, i.e. that an

ordinance must be presumed valid in the absence of evidence showing

that it is not in accordance with the law, and that the local legislators

passed the ordinance, with full knowledge of the special needs of their

locality, and with the assertion that any regulation passed is essential to

the well being of the people. Unless a clear invasion and transgression of

personal or property rights under the guise of police power regulation is

shown, court will not lightly set aside a legislative action.

In Tao v. Socrates, G.R. No. 110249. August 21, 1997, the

Court declares this presumption of validity and constitutionality:

It is of course settled that laws (including ordinancesenacted by local government units) enjoy the presumption ofconstitutionality. To overthrow this presumption, there must bea clear and unequivocal breach of the Constitution, not merelya doubtful or argumentative contradiction. In short, the conflictwith the Constitution must be shown beyond reasonable doubt.Where doubt exists, even if well-founded, there can be nofinding of unconstitutionality. To doubt is to sustain.

To overcome this presumption of regularity, however, there

must be a clear and unequivocal breach of the Constitution, not

merely a doubtful contradiction. The conflict with the Constitution

must be shown beyond reasonable doubt and when doubt exists, there

1 Leynes v. Commission on Audit, G.R. No. 143596 (December 11, 2003), Samson v. City of Bacolod, G.R.No. L-28745 (October 23, 1974), Figuerres v. CA, G.R. No. 119172 (March 25, 1999), Tano V. Socrates,G.R. No. 110249 (August 21, 1997), Morcoin Co., Ltd v. City of Manila, G.R. No. L-15351 (January 28,1961), Mejorada v. Municipal Council of Dipolog, G.R. No. 37389 (August 31, 1973), Ermita-Malate Hoteland Motel Operators Association, Inc. v. City of Manila, G.R. No. L-24693 (July 31, 1967)



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can be no finding of unconstitutionality. The tests of a valid ordinance are

well established. These principles have been reiterated in Social Justice

Society v. Atienza, Jr., G.R. No. 156052, February 13, 2008:

For an ordinance to be valid, it must not only be withinthe corporate powers of the LGU to enact and be passedaccording to the procedure prescribed by law, it must alsoconform to the following substantive requirements: (1) mustnot contravene the Constitution or any statute; (2) must not beunfair or oppressive; (3) must not be partial or discriminatory;(4) must not prohibit but may regulate trade; (5) must begeneral and consistent with public policy and (6) must not beunreasonable.

The Court, in the same case, recognizing the power of local

government units over enactment of ordinances as an exercise of

its police power, further explains the nature of police power:

Police power is the plenary power vested in thelegislature to make statutes and ordinances to promote thehealth, morals, peace, education, good order or safety andgeneral welfare of the people. This power flows from therecognition that salus populi est suprema lex (thewelfare of the people is the supreme law). While policepower rests primarily with the national legislature, such powermay be delegated. (Emphasis supplied.)

Section 16 of Republic Act 7160, otherwise known as the Local

Government Code, states the General Welfare Clause which encapsulates

the delegated police power to local governments. It provides that:

Section 16. General Welfare. Every local governmentunit shall exercise the powers expressly granted, thosenecessarily implied therefrom, as well as powersnecessary, appropriate, or incidental for its efficientand effective governance, and those which are essentialto the promotion of the general welfare. Within their



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respective territorial jurisdictions, local government units shallensure and support, among other things, the preservation andenrichment of culture, promote health and safety,enhance the right of the people to a balanced ecology,

encourage and support the development of appropriate andself-reliant scientific and technological capabilities, improvepublic morals, enhance economic prosperity and social justice,promote full employment among their residents, maintainpeace and order, and preserve the comfort and convenience oftheir inhabitants. (Emphasis supplied.)

The Local Government Code provides for a liberal interpretation

in favor of a local government unit and to the general welfare

provisions of the law to give more powers to local government units in

accelerating economic development and upgrading the quality of life for

the people in the community. Section 5 (c) of the LGC provides:

Sec. 5. Rules of Interpretation. In the interpretation of theprovisions of this Code, the following rules shall apply:

(a) Any provision on a power of a local government unit shallbe liberally interpreted in its favor, and in case of doubt,any question thereon shall be resolved in favor of devolutionof powers and of the local government unit. Any fairand reasonable doubt as to the existence of the powershall be interpreted in favor of the local governmentunit concerned.x x x(c) The general welfare provisions in this Code shall beliberally interpreted to give more powers to localgovernment units in accelerating economic development andupgrading the quality of life for the people in thecommunity; x x x (Emphasis supplied.)

Local government units (LGUs) like the City of Davao exercise police

power through their respective legislative bodies, and in this case, the



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Sangguniang Panglungsod or the city council. Specifically, the Sanggunian

can enact ordinances for the general welfare of the city:

Section. 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panglungsod, as the legislative branchof the city, shall enact ordinances, approve resolutions andappropriate funds for the general welfare of the city and itsinhabitants pursuant to Section 16 of this Code and in theproper exercise of the corporate powers of the city as providedfor under Section 22 of this Code, and shall:(1) Approve ordinances and pass resolutions necessary for anefficient and effective city government, and in this connection,shall:

x x x(iv) Adopt measures to protect the inhabitants of the cityfrom the harmful effects of man-made or natural disastersand calamities, and to provide relief services and assistancefor victims during and in the aftermath of said disasters orcalamities and their return to productive livelihood followingsaid events;

x x x(vi) Protect the environment and imposeappropriate penalties for acts which endanger theenvironment, such as dynamite fishing and other forms ofdestructive fishing, illegal logging and smuggling of logs,smuggling of natural resources products and of endangeredspecies of flora and fauna, slash and burn farming, and suchother activities which result in pollution, acceleration ofeutrophication of rivers and lakes, or of ecologicalimbalance;

x x x(2) Generate and maximize the use of resources andrevenues for the development plans, program objectives andpriorities of the city as provided for under Section 18 of thisCode, with particular attention to agro-industrial developmentand city-wide growth and progress, and relative thereto, shall:

x x x(vi) Prescribe reasonable limits and restraints on theuse of property within the jurisdiction of the city;

x x x(4) Regulate activities relative to the use of land, buildingsand structures within the city in order to promote the generalwelfare and for said purpose shall:

(i) Declare, prevent or abate any nuisance;x x x



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(5) Approve ordinances which shall ensure the efficient andeffective delivery of the basic services and facilities as providedfor under Section 17 of this Code, and in addition to saidservices and facilities, shall:

(i) Provide for the establishment, maintenance,protection, and conservation of communal forests andwatersheds, tree parks, greenbelts, mangroves, and othersimilar forest development projects; x x x (Emphasis ours.)

This exercise of police power was also provided for in

Commonwealth Act No. 51, also known as the Charter of the City of

Davao:

SECTION 14. General Powers and Duties of the Council. Except as otherwise provided by law, and subject to theconditions and limitations thereof, the City Council shall havethe following legislative powers:

x x x(bb) To declare, prevent, and provide for the

abatement of nuisances;

x x x(ee) To enact all ordinances it may deem necessary andproper for the sanitation and safety, the furtherance of theprosperity, and the promotion of the morality, peace, goodorder, comfort, convenience, and general welfare of thecity and its inhabitants, and such others as may benecessary to carry into effect and discharge the powers andduties conferred by this charter x x x (Emphasis ours.)

Clearly, with these legislative enactments and jurisprudential

assertions to support the exercise of such power, the Subject Ordinance

has been enacted by the City of Davao within its legitimate and reasonable

exercise of police power. Appellants, as will be shown below, failed to

overthrow the presumption of constitutionality of the said Ordinance. As

correctly decided by the trial court:



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There is indeed not only a necessity but a strongdemand of urgency for the passing of said City Ordinance, inkeeping with the stringent obligations of the government toanswer the call of the people in accordance with the invoke

general welfare clause of Republic Act No. 7160 xxx RTCDecision dated 22 September 2007, at page 21.

The court a quo, in arriving at the decision upholding the

constitutionality of the subject, has labored over voluminous records of the

case presented before it and has actually made an extensive review

examination of these documents:

Anyway, after a very extensive review,examination, careful evaluation of the voluminous recordssubmitted, intricate arguments and complicated positions ofeach parties through the learn and articulate advocacy of theirrespective counsels, the court confronted with theconstitutional questions, involving the validity andconstitutionality of the subject ordinance, vis--vis the invalidityand unconstitutionality interposed by petitioners throughcounsels, in open mind, strictly in the pleadings, hearings,records and evidence submitted, the court, cannot sustainthe theory and position of the petitioners in assailingthe validity and constitutionality of the subject CityOrdinance No. 0309-07, Series of 2007. RTC Decisiondated 22 September 2007, at page 15. (Emphasis supplied.)

This Court even admitted the legality of the subject matter of the

Ordinance, stating therein:

Unmistakably, it is within the mandate andauthority of the City of Davao to enact Ordinance No. 0309-07since it is a measure that has an ostensible lawfulsubject, that is, the protection of the public health andthe environment against the alleged harmful effects ofaerial spraying of pesticides or fungicides.2

2 page 14, Decision dated 9 January 2009.



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Such admission of the lawfulness of the subject matter clearly indicates

that the said Ordinance was enacted within the reasonable exercise of

police power; hence this Court affirmed the findings of the trial court. And

in that sense, subject Ordinance definitely enjoys the presumption of

constitutionality, and appellants would have to convince this Court of proof

beyond reasonable doubt as to the infirmity of the subject Ordinance;

But the majority of this Court surprisingly ignored even the prayer of

the Office of the Solicitor General (OSG) that the trial courts Decision

sustaining the constitutionality of Ordinance No. 0309-07 be affirmed in

toto because petitioners-appellants failed to overturn, by proof beyond

reasonable doubt, the presumption of constitutionality that the measure

enjoys. The OSG asserted that:

The quantum of evidence required to oust thepresumption of constitutionality is proof beyond reasonabledoubt, not mere preponderance of evidence XXX. In this case,the burden of proving beyond reasonable doubt that DavaoCitys Ordinance No. 0309-07 is unconstitutional rested onappellants shoulders, a burden which they sorely failed todischarge, XXX.3

The OSG exhaustively quoted the decision of the trial court with

respect to the courts evaluation of the witnesses of the petitioners-

appellants, which the trial court found to be not impressive to provide

a merit of credibility but on the contrary, are generalization and obscure

3 Page 2, Comment of the Office of the Solicitor General dated 20 June 2008.



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presentation of their respective testimony, not convincing to establish

the fact on issue. From these findings, the OSG explained:

In this regard, it is well-settled that the findingsof fact by the trial court, its calibration of the collectivetestimonies of the witnesses, its assessment of theprobative weight of the evidence of the parties as wellas the conclusions anchored on said findings areaccorded by the appellate court high respect, if notconclusive effect. So must it be in the case at bar.4

(Emphasis supplied.)

Certainly, this Court cannot merely ignore the findings of fact of the

trial court as well as the Comment of the OSG. It committed a grave and

reversible error when in stated that:

Although the presumption is always in favor of thevalidity or reasonableness of the ordinance, such presumptionmust nevertheless be set aside when the invalidity orunreasonableness appears on the face of the ordinance itself.

The provisions of Ordinance No. 0309-07 manifestlyreveals its incorrigible constitutional infirmities. XXX

In fine, the Ordinance itself explicitly states clear andunequivocal breaches of the Constitution, effectivelyoverthrowing the presumption in favor of the constitutionalityof the measure.5

A careful reading on the subject Ordinance will readily show on its

face its validity and constitutionality. If only the majority of this Court

would take a look on the provisions of the said Ordinance, it will find no

manifest incongruities with the Constitution, as what appellants suggests.

This is clearly a ban on aerial spraying, and none other, as what

4 Id., Page 6-7.5 Id., page 38.



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appellants proposes merely to raise doubts on the Ordinances

validity. There are no clear and unequivocal breaches of the Constitution,

but purely assertions on the reasonable exercise of the police power of the

local government. Our subsequent discussions on the main points would

show that the subject Ordinance is valid and constitutional in all aspects.

In fine, this Court erred in granting the appeal, appellants having

failed to overthrow the presumption of validity of the subject Ordinance.

A. This Court Erred In Stating ThatThe Three-Month TransitionPeriod To Shift To GroundSpraying Is Unreasonable,Oppressive And Impossible ToComply With.

This Honorable Court erred in stating that the three month-transition

period to shift from aerial spraying to other forms of ground spraying is

unreasonable, oppressive and impossible to comply with, stating therein:

All told, Section 5 of the Ordinance, being unreasonable,oppressive and impossible to comply with, must be struck

down as void.6

With all due respect, the ruling of this Court that Section 5 of the

Ordinance is unconstitutional on the basis that it is oppressive and

unreasonable deserves a second look. An astute reading of the Decision

would show that the basis for the invalidation of Section 5 of Ordinance

No. 0309-07 is that it violates substantive due process. The main thrust

6 Page 21, Decision.



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therein is the so-called claim of petitioner-appellants that it is impossible

for them to shift to ground spraying within the three (3) month period

provided for in the Ordinance thus making it oppressive and unreasonable.

Section 5 of Ordinance No. 0309-07 provides in full:

SECTION 5. BAN OF AERIAL SPRAYING- A ban on aerialspraying shall be strictly enforced in the territorial jurisdiction ofDavao City three (3) months after the effectivity of this

Ordinance.

In declaring said provision as oppressive, unreasonable and

impossible to comply with, this Court put premium in the testimonies of Dr.

Fabregar and Eng. Porticos to the effect that a shift to truck mounted

boom spraying would take three (3) years. This Court likewise agreed

with appellants that manual or backpack spraying or sprinkler

spraying would imperil not only banana production but also the health of

workers because the same are the least safe and least efficient among the

methods of spraying,7 stating therein:

This Court, therefore, finds Section 5 of Ordinance No.0309-07 an invalid provision because the compulsionthereunder to abandon aerial spraying within an impracticalperiod of three (3) months after the effectivity of thisOrdinance is unreasonable, oppressive and impossibleto comply with.8

In cases where a law is being assailed on grounds of substantive due

process the main inquiry is whether the government has an adequate

7 Decision at p. 16.8 Id. at p. 19-20.



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reason for taking away a persons life, liberty, or property. Substantive

due process looks to whether there is sufficient justification for the

governments action.9

Jurisprudential pronouncements in the United States

tell us that whether there is such a justification depends very much on the

level of scrutiny used. Hence, if a law is in an area where only rational

basis review is applied, substantive due process is met so long as the law

is rationally related to a legitimate government purpose. But if it is an area

where strict scrutiny is used, such as for protecting fundamental rights,

then the government will meet substantive due process only if it can prove

that the law is necessary to achieve a compelling government purpose.10

Against this backdrop, we examine petitioners objection that the law

is unreasonable. Did petitioners put forth evidence beyond reasonable

doubt that the three (3)-month period is unreasonable and oppressive?

First it is the contention of petitioners that they cannot comply with

the three-month period as it would take three years to configure their

plantation, get government permits for infrastructure, import and purchase

truck mounted boom sprays and secure the necessary funding to finance

the whole restructuring to truck mounted boom spray.

9 City of Manila et. al. v. Laguio et. al. , G.R. No. 118127, April 12, 2005.10 City of Manila et. al. v. Laguio et. al. , G.R. No. 118127, April 12, 2005 citing County of Sacramento v.Lewis, 523 U.S. 833, 840 (1998);



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Assuming for the sake of argument that this is true, the same would

not render Section 5 of the Ordinance unreasonable. Their inability to

comply with Section 5 through the truck mounted boom spray method

does not render the proviso oppressive or impossible to comply with. This

is for the reason that truck mounted boom spray is not the only alternative

mode of ground spraying available to petitioners-appellants once aerial

spraying is banned. Truck mounted boom spray is not the only mode by

which petitioners-appellants can comply with the ordinance. Indeed,

petitioners-appellants hands are not tied to rigidly adopt truck mounted

boom spray method. They even admit that there are three (3) forms of

ground spraying available to them. The ban is limited to aerial spraying.

Moreover, petitioners failed to prove beyond reasonable doubt that the

truck mounted boom spray method would take three years to implement.

The following exchange between Engr. Porticos and the Court is

enlightening:

COURT:

Q: Engineer Porticos, in your Exh. B-2, you estimated thetime for your engineering work supposed to be donewithin two years?

A- Yes sir.

Q: Not three years, correct?

A: Your Honor it can go up to three years.

Q: When you say two years that is two years, 24 months,correct?

A: Yes, sir.



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Q: This is actually your estimate only.A: Yes sir.11

It should be noted that in the computation of the three-year period,

petitioners included therein the time frame within which to develop

the areas lost once truck mounted boom spray will be used. This is

admitted by petitioners own witness:

COURT:

Q: Dr. Fabrigar, you mentioned about this 400 million,more than.

A: Yes sir, that includes everything for the equipment and(interrupted)

Q: Enough. That is to replace the aerial spraying to this sotruck mounted spray.

A: Yes sir.

Q: You did not specify how long will this process beactually done by the plaintiffs.

A: The affidavit says sir, a minimum of three yearsminimum.

Q: Three years?

A: Yes sir.

Q: Can there be a shorter period?A: That depends sir, if we have a very ideal situation were

(sic) banks can lend us money, if the units will beavailable immediately, if we can train our people. If wecan hire them. So these are the things that has to be(interrupted)

Q: So the contingency is something that is not in yourpresent facilities.

A: We are coordinating with them, sir.

11 TSN dated May 28, 2007 at p. 34 (Engineer Magno P. Porticos)



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Q: No its not that. The contingency of three years isbecause the facilities are not within your control.

A: Yes sir.

Q: Precisely because you are thinking of developingother areas to replace the ones that will be lost inthe process of this conversion.

A: Include, yes sir.12

What is more, petitioners are not precluded from shifting to manual

or backpack spraying which is definitely available to them. It should be

noted that there are a total of 5,205 hectares of banana plantation in

Davao City. Of the 5,205 hectares only the plantations of Davao Fruits

Corporation and La Panday Agricultural and Development Corporation,

which consists of a total of 1,800 hectares, are practicing aerial spraying.

All other banana plantations are using truck mounted boom spray

or manual spraying.13 These facts are uncontroverted.

In addition, manual spraying can be implemented within the three

(3)-month period as mandated by Section 5 of the assailed Ordinance.

Petitioners witness in the person of Ms. Sembrano admits as much:

ATTY. QUITAIN:x x x

Q: Am I correct in saying, that there are other modes ofground spraying, other than truck mounted spraying?

A: That is right.

Q: This manual spraying to be done by a person?

12 TSN dated May 28, 2007 at pp. 23-24 (Ma. Emelita Fabrigar)13 TSN dated May 29, 2007 at pp. 34-35 (Maria Victoria Sembrano) and TSN dated May 28 at p. 33 (Engr.Porticos)



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A: That is right, sir.

Q: And the manual spray to be done by a person can bedone anytime?

A: That is right.

Q: It can even be done tomorrow?

A: Yes, sir.

Q: It can be done today?

A: Yes sir.

Q: And you can avail of this if you want to?A: That is right.14

The fact that Ms. Sembranos testimony was offered to prove the

financial aspect of shifting to other modes of ground spraying would not

diminish the weight of her testimony on the feasibility of manual or

backpack spraying. In the first place, these admissions were made during

the cross-examination of the witness. As such the questions propounded

upon the witness and the answers given by her are all facts bearing upon

the issue of the case.15 Equally relevant here is the fact no timely objection

was made when these questions were asked of the witness. In the second

place, there is no contrary evidence presented by petitioners to prove that

they cannot implement manual or backpack spraying within the three (3)-

month period. Petitioners main objection to manual or backpack spraying

is that it is unsafe (to their workers), inefficient and ineffective. Clearly,

these factors are worthy of concern but petitioners can properly address

14 TSN dated May 29, 2007 at p. 17 (Maria Victoria Sembrano).15 Rule 132, Section 6 of the Rules of Court.



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these by securing all the safety equipments necessary for their workers

and hire the necessary workers to make ground spraying efficient.

It is noteworthy to include in these discussions the dissent

propounded by the CA Mindanao Station Presiding Justice Romulo Borja, in

veering away from the majority opinion, with respect to the impossibility of

the three-month transition period, stating therein:

Cembranos expertise lies in the filed of finance. And sheclearly invoked a fundamental truth in any economicundertakin: that the bottom line is money. Temporal andlogistical constraints are overcome if sufficient financialresources are committed to the undertaking. The ultimateconstraint, therefore, is finances.

In other words, the shift to manual spraying within thethree-month transition period is feasible.

In fine, this Court erred in finding the transition period unreasonable,

oppressive and impossible to comply with.

B. This Court Erred In Placing TheBurden Of Proof On AppelleesIn Finding Scientific Basis ForBanning Aerial Spraying, WhenIn Fact Such Burden Is PlacedOn Appellants To Prove ThatAerial Spraying Is Not HarmfulTo People And Their Health AndThe Environment.

With all due respect to the majority opinion of this Court, it erred in

its conclusion that the practice of aerial spraying is not inimical to the

public health and livelihood, and to the environment, stating therein:



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In fine, the issue as to whether or not the practice of aerialspraying per se and the fungicides or pesticides aerially applied onbanana plantations are inimical to the public health and livelihood,and to the environment has not been factually settled.16

Such conclusion thereby places the burden of proof on appellees in finding

scientific basis for banning aerial spraying, when in fact such burden

should have been placed on appellants to prove that aerial spraying is not

a nuisance to people and their health and the environment;

The said conclusion should not have been the result of its discussion

considering that the majority opinion of this Court did point out appellants

contention that there is no scientific basis in the ban and that pesticides or

fungicides aerial sprayed over banana plantations are actually safe to the

health and livelihood of the people, and the environment, stating therein:

In assailing the constitutionality of Ordinance No. 0309-07, petitioners-appellants submit the main thesis that there isno scientific basis for the banning of aerial spraying ofpesticides or fungicides they aerially spray over bananaplantations are actually safe to the health andlivelihood of the people and to the environment. (Italics

supplied.)17

In proposing for this argument, appellants have the burden of proof

in presenting evidence with respect to the safety of pesticides or

fungicides aerially sprayed over their plantations. Failing to present such

proof beyond reasonable doubt, the conclusion should be that the

presumption of validity of the ordinance is not overthrown, hence affirming

16 Page 30, Decision dated 9 January 2009.17 Id., page 23.



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the validity of the subject Ordinance. An intent reading of this Courts

Decision would readily show the failure beyond reasonable doubt to

prove the safety of aerially spraying to peoples health, livelihood

and environment;

In fact, among the evidence appellants presented in support of such

thesis is a Summary Report on Assessment and Fact-Finding Activities on

the Issue of Aerial Spraying in Banana Plantations (Summary Report).

This Court in fact stated that this piece of evidence along with other

opinions of government agencies do not support the main contention

of appellants on the safety of aerial spraying to people and

environment, stating therein:

As a piece of evidence, the Summary Report relied uponby petitioners-appellants contains no detailed empirical study insupport of their main thesis on the safety of aerial spraying ofpesticides or fungicides. The same is true with the opinions ofgovernment agencies cited by petitioners-appellants, whichinclude the Department of Agriculture (DA) letter datedSeptember 6, 2006, the Position Paper Of TheDepartment of Health-Center for Health Development,Davao Region, On the Issue of Aerial Spraying InBanana Plantations Within The Jurisdiction of DavaoCity, and the Department of Trade and Industry (DTI)sPosition Paper.18

This Court likewise dismissed the claims of appellants witnesses with

respect to the safety of pesticides or fungicides aerially sprayed over

peoples health, livehood and their environment, stating therein:

18 Id., page 24-25.



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We are skeptical of the foregoing claims on theseemingly fool-proof safety of pesticides or fungicides, both aschemical substances and in terms of human exposure to thesame, since petitioners-appellants already admitted that the

pesticides or fungicides they use would prejudice thehealth of their workers if manually sprayed. Theadmission would sensibly mean that exposure to suchsubstances, even in its diluted form poses danger to the humanhealth.

Our opinion is not necessarily a categorical indictmentagainst the degree of safety in the usage of these substances.However, without preponderant and actual empirical proof of

the testimonies of petitioners-appellants witnesses, noconclusion can be reached as to whether or not the use ofpesticides or fungicides is safe. Therefore, as the public welfareis Our public concern, this Court cannot compromise the healthof the people against even diluted compositions of, butinherently poisonous, fungicides or pesticides, the safety ofwhich in terms of human exposure have not been establishedas scientifically infallible.19 (Italics supplied.)

It is strikingly clear that the majority of this Court has been grappling

with a doubt their minds whether the substance being aerially sprayed are

absolutely harmless to human lives, plants and the environment. Given

such doubt, the Honorable Court is called on to apply the hierarchy of

rights enshrined in the constitution and customary law, the basic and

fundamental right to life and self-preservation is on top of the right to

property. The Court must exercise prudence. The Courts doubt must have

been ruled in favor of life.

At this point of this Courts decision, it should have satisfied itself

with these findings given that the one who proposed such thesis is the

19 Id., p age 26-27.



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appellants, and failing to prove such contention necessarily means

appellants fell short of the burden of proof required of it. However, it

continued with the evaluation of the testimonies of the members of the

community affected by aerial spraying as well as with the testimony of Dr.

Panganiban, stating therein:

On the other hand, We also find that the testimonies ofDagohoy P. Magaway, Cecilia O. Moran, Virginia Cataag, RositaBacalso and Elisa de Jesus Amba did not prove that aerialspraying of substances is the proximate cause of the variousailments (itchiness and irritation of skin, contraction andtightening of chest, minimal tuberculosis, recurring stomachaches, nausea and lost appetite) they allegedly suffer.

XXXWe perused over Dr. Panganibans Curriculum Vitae,

particularly with respect to the researches she has beeninvolved with, and found that not one of such researchesactually relate to a study on the consequential effects of aerialspraying of substances on the public health and theenvironment. While she testified that pesticides or fungicidesare inherently poisonous substances dangerous to public healthand the environment, she failed to establish that aerialapplication of fungicides or pesticides poses greater risk to thehealth of people and the ecology.

This is a grave and reversible error on this Courts majority opinion

considering that lack of the required proof on the part of appellants

essentially results in their failure, and whatever evidence presented by

appellees are merely additional arguments to support appellants failure to

prove beyond reasonable doubt their thesis. This Court cannot exact to the

appellees the same burden of proof in presenting their evidence, such

weight clearly lies on appellants and definitely, appellants failed. Failing

therefore to support their thesis that aerial spraying is safe to



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people and the environment, appellants must necessarily fail on

that aspect. But apparently, the majority of this Court thinks otherwise;

Hon. Justice Romulo Borja opines differently on this matter from the

majority, as the good Justice accurately frames the issue with respect to

the perspective of the party having such burden of proof, stating therein:

Essentially, what the majority is saying is that neitherside has sufficiently established to the Courts satisfaction thatthe chemicals aerially sprayed is or is not hazardous to oneshealth.

I am of the opinion that in view of the finding thatneither side has established its case- or, stated otherwise, thatthe evidence of the parties are in equipoise- then appellantscase must necessarily fail. As petitioners in the courtbelow, they had the burden of proving their case. Actoriincumbit onus probandi. Considering that the case involves achallenge to the constitutionality of a statute, the burden is allthe more urgent.20

Clearly, the burden of proving their case rests on appellants

shoulder, and this Court must not rely on the weakness of appellees

arguments, but on the strength of appellants contentions. The weight of

evidence that appellants should present must outweigh the

presumption of constitutionality of the ordinance. Appellants clearly

failing in that regard, the constitutionality of the subject Ordinance must

be upheld. Noted constitutionalist, Fr. Joaquin G. Bernas, S.J.21, in his

column Sounding Board in the Philippine Daily Inquirer on 26 January 2009

20 Pages 10-11, Dissenting Opinion.21 Page A15, Banana Planter vs City of Davao, Sounding Board, Philippine Daily Inquirer, Jan. 26, 2009.



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entitled, Banana Planters vs City of Davao, a copy of which is attached

herein as Annex A, gives his opinion on the matter, stating therein:

It is also interesting that the Court of Appeals did notfind itself satisfied with the evidence on whether the spraysbeing used were safe or not. XXX

On the basis of these uncertainties the court decided tofavor the planters. This raises the issue whether in a conflictingsituation like this where the court is uncertain as to who iswrong and who is right a court should substitute its judgment for that of the legislator. Apparently thelegislator had made its judgment on the basis ofevidence it had found and on labels on the solutionssaying, as the editor of Sunstar Davao enumerates:

Harmful if absorbed through the skin, may cause nose,throat, eyes and skin irritation.

Do not breathe dust of spray mist.

This pesticide is toxic to fish. Drift and runoff fromtreated areas may be hazardous to aquatic organisms inneighboring areas.

During aerial application, human flaggers must be inenclosed cabs.

Fr. Bernas thereby suggests that this Court should be guided by the

wisdom of the legislator in terms of their appreciation on the problem at

hand. The legislator, in this case the City Council of Davao, armed with

preponderant evidence of cases involving people complaining of

disturbance to their lives with respect to aerial spraying activities, decided

in favor of the aerial spray ban. It is noteworthy to reiterate herein, one of

the bases of the legislator in deciding in favor of the ban, the

Precautionary Principle in Environmental Law22, which states:

22 Principle 15, United Nations Conference on Environment and Development (UNCED), June 16, 1992, Rio

de Janeiro, Brazil.



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In order to protect the environment, the precautionaryapproach shall be widely applied by States according to theircapabilities. Where there are threats of serious or irreversibledamage, lack of full scientific certainty shall not be used

as a reason for postponing cost-effective measures toprevent environmental degradation.

In his most recent column Sounding Board in the Philippine Daily

Inquirer dated 2 February 2009 entitled A Healthful and Balanced

Ecology, a copy of which is attached herein as Annex B, Fr. Bernas once

again discussed this topic, particularly on this issue of supposed lack of

evidence in banning aerial spraying, stating therein:

About the issue of lack of evidence, Fr. Jett Villarin, S.J.,president of Xavier University in Cagayan de Oro and a scientistwhose area of expertise is environmental matters, made some

interesting observations in a letter he sent me. He says:

Environmental laws and regulations must abide by theprecautionary principle. This principle simply holds thatuncertainty in the science should not be an obstacle or excuseto postpone mitigating action. It is a conservative principlewhich in the case of scientific uncertainty places the burden ofproof on the polluter, not on the affected, i.e. the polluter hasthe responsibility to prove that what is being spewed into the

environment is not harmful. [The Court of Appeals had saidthat the planters had failed to do this.] Corollary, it is not theresponsibility of the affected to prove that the effluent ispoisonous. In view of scientific uncertainty, the presumption isthat the chemical is harmful.

Aerial spraying is better deployed in advanced countrieswhere there is mechanized agriculture and land buffers aremaintained. In the Philippines and other developing countries,

communities live close to the plants and the land they till.

The degree of harm depends on the lifetime, humanexposure and concentration levels of the chemical. These willdepend on the state of the atmosphere. Greater control of thedispersion of chemicals is possible in stable atmospheres.



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Tropical atmospheres are frequently unstable and lesspredictable. You only need to ask a fisherman who knows howlocally unpredictable amihan can be these days.

If I were a banana plant manager, I would seriouslyweigh the marginal cost of mitigating the impact of aerialspraying or the total cost of adopting another technologyalongside the externality costs of possible medical,rehabilitation, and legal class action in the future. If threemonths are not enough to change systems, I would negotiatefor a protracted withdrawal schedule. Time, like air, can dilutecosts.

If I were a banana farmer, I would try to convince myamo that people are better than planes. People can say thankyou. Planes can only fly.

As a priest, I hope that our judges and our agriculturistssee that heaven might be an aerial place and that Godsbottom line might be different from theirs.

Of course, the last two paragraphs are neither science

nor law. But they can be of greater significance than eitherscience or law, or bananas. (Italics supplied.)

This Court should be guided not merely by the principles of law and

jurisprudence which clearly enunciates matters in favor of the case of

communitys right to a healthful and balanced ecology, but also by

precepts of truth and justice. Hence, this Ordinance is constitutional;

C. This Court Erred In DeclaringThat The Means Employed HasNo Reasonable Relation To ThePurpose Sought To Be Achieved.

This Court committed a grave and reversible error in granting the

Appeal and in its declarations that the means employed has no reasonable

relation to the purpose sought to be achieved, stating therein:



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Even as We agree with both appellees opinion that theOrdinance was enacted to protect the public and the environmentagainst the harmful effects in aerial spraying pesticides orfungicides, We do not find any reasonable relation between

such purpose and measure to ban aerial spraying of allforms of substances, not only of fungicides or pesticides,as the Ordinance expressly imposes.23

With all due respect to the majority opinion of this Court, it failed to

appreciate the subject Ordinance for what it is, and not for what the

appellants claim it to be. The very title of the Ordinance24 suggests that it

is an ordinance banning aerial spraying, and not of regulating

pesticides or fungicides. The evil sought to be avoided by the ordinance

is not merely pesticides or fungicides aerially sprayed, as what appellants

claim it is, but it seeks to prohibit aerial spraying which affects the people

and the environment that the banana plantations are not connected with.

The lone dissent of Justice Romulo Borja clearly appreciates this,

stating in his Dissenting Opinion25 that:

But, more importantly, it bears stressing that theassailed Ordinance does not ban the use of pesticides outright.What it prohibits is only the aerial mode of spraying them.Carefully scanning the challenged Ordinance, I find that it isnot so much a measure on the application of pesticides andfungicides but mainly and principally, a measure against airpollution. When these chemicals are sprayed aerially, theybecome a form of air or atmospheric pollution. This is clearfrom the above-cited premise of the PD 1144 itself which

proclaims-WHEREAS, improper pesticide usage presents serious

risks to users, handlers, and the public in general because of

23 Page 33, Decision.24 Ordinance No. 0309-07, Series of 2007, An Ordinance Banning Aerial Spraying as an AgriculturalPractice in all Agricultural Activities by all Agricultural Entities in Davao City.25 Pages 12-13, Dissenting Opinion.



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the inherent toxicity of these compounds which are, moreover,

potential environmental contaminants xxx [Italics added]

If the majority of this Court merely browsed over the provisions of

said Ordinance, not a single word denotes relation to pesticides or

fungicides because clearly this is not an ordinance about pesticides and

fungicides, but the method on how such substances and all other

substances are sprayed by banana plantations. And we agree with the

strong dissent of Justice Borja on this proposition, stating therein:

In contending that the means employed by the assailedOrdinance has no reasonable relation to the purpose sought tobe achieved, appellants miss the entire point of the Ordinance:that it is not an absolute ban on the use of pesticides buta ban on aerial spraying which is a form of air pollution.(Emphasis supplied.)26

Not only did appellants miss the point, but the majority opinion of

this Court erred in accepting such point missed by appellants. The records

of the proceedings before the Sangguniang Panglungsod of Davao City, a

voluminous part of the records of this case, clearly shows that the public

purpose or the evil sought to be avoided are the drift being

sprayed to unintended objects when aerial spraying is conducted,

such as residential areas bordering on banana plantations. Reasonable

relation does exist between such conduct of aerial spraying which results

in the drift and the means employed which is to ban aerial spraying.

26 Page 15, Dissenting Opinion.



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In Social Justice Society v. Atienza, G.R. No. 156052,

February 13, 2008, the Court reiterated the principle that to constitute a

reasonable exercise of police power, the ordinance must, among

others, employ means which are reasonably necessary to attain

the object sought to be accomplished:

As with the State, local governments may be consideredas having properly exercised their police power only if thefollowing requisites are met: (1) the interests of the public

generally, as distinguished from those of a particular class,require its exercise and (2) the means employed arereasonably necessary for the accomplishment of the purposeand not unduly oppressive upon individuals. In short, theremust be a concurrence of a lawful subject and a lawfulmethod.27

Definitely, the means employed which is to ban aerial spraying

activities is reasonably necessary for the attainment of the object sought to

be accomplished, which is the nuisance being inflicted upon members of

the community, who have been showered by the substances being applied

through the use of aircraft. Had the subject sought to be avoided, as

claimed by the appellants is the harmful effect of pesticides, then the

ordinance could have proposed to ban or regulate the use of pesticide.

Apparently, that is not the case, and appellants wisdom cannot be

substituted with the collective wisdom of the City Council which

sought to remedy the shared sentiments of communities to ban the

method of aerial application of all substance:

27 Citing therein Lucena Grand Central Terminal, Inc. v. Jac Liner, Inc., G.R. No. 148339, 23 February2005, 452 SCRA 174, 185, citing Department of Education, Culture and Sports v. San Diego, G.R. No.89572, 21 December 1989, 180 SCRA 533, 537.



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Wide discretion is vested on the legislativeauthority to determine not only what the interests ofthe public require but also what measures arenecessary for the protection of such interests. Clearly,

the Sanggunian was in the best position to determine theneeds of its constituents. Social Justice Society v. Atienza, G.R.No. 156052, February 13, 2008. (Emphasis supplied.)

Certainly, this Court nor appellants are not in the best position to

determine the needs of the constituents of Davao City, but the local

government unit of Davao City itself. This is a political question which is

exclusive realm of the officials to address. It is thus error on the part of

the Court to conclude that the aerial ban on all substances exceeds what is

fairly required by the legitimate demands of public welfare, stating therein:

In effect, the Ordinance forbids the aerial spraying evenof vitamins or minerals and other substances such as waterwhich are commonly known as safe and which normallyenhance the growth and harvest, thereby compromisingagricultural productivity. This amounts to an arbitraryintrusion into petitioners-appellants prerogatives inpursuing a lawful endeavor and in protecting itsinvestments, exceeding what may be fairly required bythe legitimate demands of public welfare.28

Essentially, this Court placed a much higher importance to appellants

businesses and in protecting its investments, than the much higher

legitimate demands of the public welfare for peoples lives, health and

their livelihood, and the peoples right to a healthful ecology. The drift

coming from aerial spraying may not have been pesticide or fungicide, but

clearly there is a drift. Such drift has become a nuisance to members of




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the community who have no interests at all to the business of the

appellants. Aerial spraying of substances has clearly maximized this natural

drift of spraying substances that it has become a disturbance to

communities.

As fittingly expounded by Justice Borja, in his erudite dissent, while

all forms of pesticide spraying involves some drift, aerial spraying

maximizes such drift, stating therein:

The Report is correct in stating that banning theelimination of aerial spraying will not entirely eliminate thepublic hazards of pesticides. But that is hardly comforting. Forin so stating, the Report confirms the public hazards ofpesticides spraying, whether aerial or ground.

But what the Summary Report failed to focus on is the wind drift factor, that is, the fact that aerial sprayingmaximizes the drift of the pesticide mist to areas wherethere are residents and inhabitants who are notconnected with the plantations. As stated above, allforms of pesticide spraying involves some drift. But it isself-evident that aerial spraying maximizes that drift.(Emphasis supplied.)29

The wind drift factor is material in this case considering that wind

drift is a natural occurrence when one sprays substances. Even an ordinary

spray of perfume causes drift for the smell to reach others who are not the

intended target. This is a normal occurrence to ground spraying in

plantations, thus the necessity of having personal protective equipment for

plantation workers. However, when such spray is done aerially, the drift




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covers a wider area considering the wind that cannot be controlled by

humans. This is one of the risks of aerial spraying, as contended by Justice

Borja, stating therein:

It is one thing for the plantations to assume those risksfor themselves and their workers; it is entirely anothermatter for them to put the unwilling public at a similarrisk. To the extent that the Ordinance seeks to shield thepublic from potential harm arising from the inherent toxicity ofpesticide, the ban on aerial spraying of these chemicals isvery much germane to the purposes the Ordinanceseeks to achieve.30

This Court cannot merely ignore the lamentations of people in their

complaints against aerial spraying. Aerial spraying, and its substance drift,

regardless of what substance is being sprayed, and that fact that said drift

lands on people, animals and water bodies causing even the minor irritants

like itchiness, swelling, difficulty of breath, or even exuding foul odor, thus

the declaration of a public nuisance, which the law can seek to abate. The

following are the pertinent provisions of Nuisance under our Civil Code:

Article 694. A nuisance is any act, omission, establishment,

business, condition of property, or anything else which:(1) Injures or endangers the health or safety of others; or(2) Annoys or offends the senses; or(3) Shocks, defies or disregards decency or morality; or(4) Obstructs or interferes with the free passage of anypublic highway or street, or any body of water; or(5) Hinders or impairs the use of property.

Article 695. Nuisance is either public or private. A public

nuisance affects a community or neighborhood or anyconsiderable number of persons, although the extent ofthe annoyance, danger or damage upon individuals maybe unequal. A private nuisance is one that is not includedin the foregoing definition.




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Article 699. The remedies against a public nuisance are:(1) A prosecution under the Penal Code or any localordinance: or

(2) A civil action; or(3) Abatement, without judicial proceedings.

A case in point on nuisance is Tatel vs. Virac, G.R. No. 40243

March 11, 1992, where the Court sustained the validity of Ordinance No.

13, series of 1952, prohibiting the construction of warehouses near a block

of houses either in the poblacion or barrios without maintaining the

necessary distance of 200 meters from said block of houses to avoid loss

of lives and properties by accidental fire, based on the general welfare

clause and Article 694 of the civil code on nuisance. In Social Justice

Society v. Atienza, G.R. No. 156052, February 13, 2008, the Court

declared as valid an ordinance where operation of the businesses of oil

companies in their present location will no longer be permitted:

In the exercise of police power, property rights ofindividuals may be subjected to restraints and burdens

in order to fulfill the objectives of the government.Otherwise stated, the government may enact legislationthat may interfere with personal liberty, property,lawful businesses and occupations to promote thegeneral welfare. However, the interference must bereasonable and not arbitrary.And to forestall arbitrariness,the methods or means used to protect public health,morals, safety or welfare must have a reasonablerelation to the end in view. (Emphasis ours.)

The end view in the subject Ordinance is the prevention of

continuous drift affecting members of the community who have no



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connection with the business of banana plantations, but the method of

aerial application has actually increased the drift given the natural forces of

air and wind that cannot be controlled by humans. The method or means

used to protect public health, safety and welfare, including their livelihood

and the environment, from the incessant unwanted spray to ordinary

people, that is to ban aerial spray, therefore is reasonable. The aerial spray

activities have affected not just the intended targets, but those

unintentionally showered due to the maximized wind drift;

The references of Justice Borja of this situation to what is contained

in the law under R.A. 8749 are quite telling, particularly on the polluting

nature of aerially sprayed pesticides, stating therein:

If there be any doubt as to the polluting character ofaerial sprayed pesticides, the Clean Air Act itself provides that-

a) Air pollutant means any matter found in theatmosphere other than oxygen, nitrogen, watervapor, carbon dioxide, and the inert gases in their

natural or normal concentrations, that is detrimentalto health or the environment, which includes but notlimited to smoke,dust, soot, cinders, fly ash, solidparticles of any kind, gases, fumes, chemical mists,steam and radioactive substances; [Italics supplied]

b) Air pollution means any alteration of the physical,chemical and biological properties of the atmosphericair, or any discharge thereto of any liquid, gaseous or

solid substances that will or is likely to create or torender the air resources of the country harmful,detrimental, or injurious to public health, safety orwelfare or which will adversely affect their utilizationfor domestic, commercial, industrial, agricultural,recreational, or other legitimate purposes xxx.



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This Court erred in its comparison of the case City of Manila v.

Laguio, G.R. No. 118127, April 12, 2005 with this case, claiming that

the indiscriminate imposition of the ban on aerial spraying of all substances

has no relation to the public purpose for which the Ordinance was enacted.

The citation of the Laguio doctrine in this case is misleading since in that

case, the City of Manila sought the closure of businesses which is claimed

to be offensive to morality. In this case, banana plantations are not being

closed. What is merely prohibited is merely the particular mode of

delivering pesticides to the banana trees and imposition of buffer zones.

It is thus without doubt that the ordinance banning aerial spraying is

a reasonable means enacted by the local legislative body to abate a public

nuisance, which aerial spraying has been clearly declared. A mere

regulation of pesticides and its application, would not serve the

general welfare of the people of Davao, particularly residents of

communities continually battling the disturbances of being sprayed with

drifts and affecting their ordinary lives, health, food, sources of water, and

even their livelihood.

In fine, this Court in finding no reasonable relation to the purpose

sought to be achieved committed an error in its Decision.



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D. This Court Erred In PronouncingThat The Ban On AerialSpraying Runs Afoul With TheEqual Protection Clause Of The

Constitution, Applying A StrictScrutiny Approach In MakingAllowable Classifications.

This Court committed a grave and reversible error in pronouncing

that the ban on aerial spraying is violative of the equal protection clause of

the Constitution, applying a strict scrutiny approach in making allowable

classifications, rather than a liberal or rational approach, stating therein:

We are, therefore, convinced that the total ban onaerial spraying runs afoul with the equal protectionclause because it does not classify which substances areprohibited from being applied aerially even asreasonable distinctions should be made in term ofhazards, safety or beneficial effects of liquid substances

to the public health, livelihood and the environment.The measure also fails to differentiate among the classes ofpesticides or fungicides, and does not distinguish levels ofconcentration of such substances when aerially sprayed, suchthat even substances which are beneficial to and enhanceagricultural production are covered by the ban.31


such finding considering that the subject Ordinance indeed made

reasonable and substantial classifications and distinctions, applicable to the

very subject of the Ordinance. The Constitution allows substantial

distinctions, and not an exhaustive classification, as what this Court

suggests that the Ordinance should have done, stating therein:

We find petitioners-appellants contention more tenable.Ordinance No. 0309-07 defines aerial spraying as the




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application of substances through the use of aircraft of anyform which disposes the substance in the air. Inevitably, theban imposed encompasses aerial application ofpractically all substances, not only pesticides or

fungicides but including water and all forms ofchemicals, regardless of its elements, composition, ordegree of safety.32

The majority of this Court would have wanted us to follow appellants

argument that distinction should have been made with respect to the level

of toxicity of the chemicals, elements of such substances, and the degree

of safety of each substance. But definitely this argumentation misses the

point with respect to the subject matter of the Ordinance. We stated

earlier, and reiterate now, that this is not a local policy with respect

to fungicides or pesticides, this is about the mode of application

of substance, on which aerial spraying maximized such drift.

The Constitution provides that no person shall be denied of the equal

protection of the law which mandates that all persons or things similarly

situated should be treated alike. It is likewise an established principle of

constitutional law that the guaranty of the equal protection of the

laws is not violated by a legislation based on reasonable

classification. The Supreme Court, in People v. Cayat [68 Phil 12, 18

(1939)], laid down the requirements for a valid classification, as follows:1. Based on substantial distinctions2. Germane to the purpose of the law3. Not limited to existing conditions only




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4. Must apply equally to all members of the same class

In this case, a substantial distinction was made by the local

legislative body in distinguishing between aerial spraying and other form of

non-aerial spraying. This distinction is germane to the purpose of the law,

which is to abate the wind drift of substances that is maximized whenever

aerial spraying is conducted. The aerial spray ban is not limited to existing

conditions only, but to future activities as well and not limited to banana

companies but to all agricultural activities. The subject ordinance is

applicable to all members of the same class, in this case agricultural

entities. Thus, a valid classification was made in the subject ordinance.

Fr. Joaquin G. Bernas, S.J., in his column earlier attached as Annex

A, explained on the matter of the equal protection clause and of the

standards in making allowable classification, stating therein:

What of the lack of equal protection? The argument isthat the ordinance prohibits the use of all sprays withoutdistinction. Here again I am sure that the Supreme Court willhave the opportunity to explain how the equal protectionclause operates. But first, does the ordinance prohibit all formsof spray solutions or only those currently being used in theplantations? In making allowable classification, jurisprudenceuses two possible approaches: the strict scrutiny approachand the liberal or rational approach. The strict scrutinyapproach is used to measure classifications based on race,national origin, religion, alienage, denial of the right to vote,interstate migration, access to courts and other other rightsrecognized as fundamental.

The liberal or rational approach is used in economicmatters: briefly, if the legislator finds a rational basis formaking the classification, even if not conclusive, the court will



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accept it as valid. Did the Court of Appeals use the strictscrutiny approach?

Appellants, in pushing for an exhaustive distinction, therefore

applying a strict scrutiny approach, seeks to differentiate not only on the

mode of application, but on the classes of pesticides or fungicides as well

as levels of concentration, that it pushes for a restrictive view on how the

legislative body should have acted. In that sense, appellants attempt to

replace its own wisdom with that of the local legislators. In the mind of

the legislator, the reasonable classification it made was

appropriate considering the local situation and problem being

addressed, with that of aerial spray as compared to manual spray drift.

Justice Borja, applying the liberal or rational approach, certainly was

not convinced also with the proposition of appellants that the subject

ordinance should have made restrictive distinctions, stating therein:

It bears repeating: the essence of the assailedOrdinance is that it is a measure against air pollution.This is why it is the aerial spraying as an agriculturalpractice which is being prohibited and not any specificsubstance that is being sprayed.33

Being an ordinance that is not about any specific substance, but about air

pollution, the ban against aerial spraying as an agricultural practice

clearly made a valid and reasonable classification. And even if such

substance is generally harmless, the ban for the aerial spraying of such

33Page 16, Dissenting Opinion.



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substance is justified with the wind drift factor that occurs during spray,

and is being maximized with the aerial application of such substance.

Clearly, the dissent of Justice Borja elucidates the nature for the

justification of the ban against all substances from aerial spraying, even of

harmless substances like water, stating therein:

Nonetheless, the outright ban against aerially spraying vitamins, minerals and organic fertilizers is still justifiable.These materials, while generally not toxic, may prove tobe threatening to the health of certain individualsbecause of wind drift from aerial spraying. Vitamins andminerals are generally non-toxic; it is less clear if organicfertilizer is not hazardous when ingested or inhaled by humans.But who is to say that they may not prove hazardous to thehealth of some persons? The adage that one mansmedicine may be another mans poison applies here.Besides, there is no technical reason why such vitamins,minerals and organic fertilizers cannot be sprayed manually orby sprinklers. If they are as harmless as appellants would haveUs believe, then they are entirely safe for manual spraying.

Appellants next ask, what about water?

Section 2 of the assailed Ordinance states as the policyunderlying the measure:

Section 2. POLICY OF THE CITY. It shall be the policyof the City of Davao to eliminate the method of aerialspraying as an agricultural practice in all agriculturalactivities by all entities within Davao City.

It is clear therefore that not all spraying of allsubstances is banned but only those that are actuallypracticed by the agricultural entities in Davao City.These definitely include the spraying of pesticides, especially

fungicides, a matter admitted by the appellants. Whether thecurrent practice includes the aerial spraying of vitamins,minerals and organic fertilizers is less clear. But there has beenno showing that aerially spraying pure water is an agriculturalpractice in Davao City or for that matter, anywhere else.



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Appellants are therefore posing a purely hypotheticalobjection to the Ordinance as a basis for attacking itsconstitutionality. When an issue of constitutionality is raised,the courts can exercise its power of judicial review only if the

following requisites concur:

(1) The existence of an actual and appropriate case;(2) A personal and substantial interest of the party raising the

constitutional question;(3) The exercise of judicial review is pleaded at the earliest

opportunity; and(4) The constitutional question is the lis mota of the case.

With respect to the issue of the sweeping character ofthe ban on aerial spraying that includes a prohibition on theaerial spraying even of what appellants deem harmless orinnocuous chemicals, appellants are not citing any situationthat is applicable to them (or to any other agricultural entity inDavao City). It is essential in any challenge to theconstitutionality of a statute or ordinance that the plaintiff mustadvance and actual and appropriate case not one that is merelytheoretical.

But the issue will nonetheless be confronted if only tohighlight the constitutional principles involved. It is true thatwater is a natural, non-toxic compound. When sprayedaerially, however, the mist drifts to the neighboringareas and their population. The act of spraying aeriallytherefore necessarily impinges upon the rights ofothers. Who is to say that such a spray would be welcomed bya neighbor who may have a perfectly good reason to oppose it

and the heightened moisture it engenders. The situation is akinto that of a man watering his own garden. His right to do so isunquestioned. But if he employs hosing equipment so powerfulthat it sprays water into the air and drenches his neighborspremises, he impinges upon another persons rights. It isimmaterial, as far as this argument goes, whether thewater is toxic or not. I take notice that some asthmaticsprefer arid climates which allow them to breathe easier andwhich minimizes asthma attacks. Aerial spraying, by

generating drift beyond the confines of the sprayersproperty, violates the right of his neighbor who has aconstitutional right to a clean and healthy environment,not according to the will of another person, but inaccordance with the rhythm and harmony of nature.(Emphasis supplied.)



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In fine, the subject ordinance does not violate equal protection

clause for having been made with allowable and substantial distinctions.

E. The Court Erred In Stating ThatThe 30-Meter Buffer ZoneConstitutes Unlawful Taking OfProperty Without Due ProcessOf Law.

This Court committed a grave and reversible error in stating that the

30-meter buffer zone constitutes unlawful taking of property without due

process of law, stating therein:

The requirement under Section 6 apparently makes nofair distinction as to the area or size of the plantationover which the Buffer Zone would be established. It

imposes a fixed 30-meter Buffer Zone without regard tothe size of the landholdings or plantations. Owners offarms, even those with areas of perhaps 1 or 2 hectares, ormaybe even lesser, which could meagerly accommodate a low-budget agricultural activity, would then cede portions thereoffor such purpose, downsizing the area to be cultivated andconstricting further the viability of their farmlands for profitableendeavors. Thus, the requirement violates the dueprocess clause because it unreasonably deprives

plantation owners of the lawful or beneficial use of suchareas to be ceded, without just compensation.34


its conclusion that the subject ordinance violates the due process law

because it confiscates property without just compensation. This is certainly

not the case considering that the subject ordinance was enacted in the

exercise of the local government unit of its police power to secure the34 Page 36, Decision.



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general welfare. In the exercise of such power, certain restraints and

burden on private property is clearly mandated to secure the

general welfare.

The cases ofSee Kee vs. the City of Manila (G.R. No. L-34976,

October 21, 1931) and Patalinghug vs. Court of Appeals (G.R. No.

104786, January 27, 1994) on the power of local governments to

validly promulgate ordinances or measures that may subject

certain kinds of restraints and burdens on persons in order to

secure the general welfare, are in point:

The declaration of the said area as a commercial zonethru a municipal ordinance is an exercise of police power topromote the good order and general welfare of the people inthe locality. Corollary thereto, the state, in order to promotethe general welfare, may interfere with personal liberty, with

property, and with business and occupations. 10 Thus,persons may be subjected to certain kinds of restraintsand burdens in order to secure the general welfare ofthe state and to this fundamental aim of government,the rights of the individual may be subordinated. Theordinance which regulates the location of funeral homes hasbeen adopted as part of comprehensive zoning plans for theorderly development of the area covered thereunder.

Likewise, it cannot be denied that the City of Manila hasthe authority, derived from the police power, of forbidding theappellant to continue the manufacture of toyo in the zonewhere it is now situated, which has been declared residential,without providing for any compensation; these provisions ofthe Revised Ordinances do not in fact deprive Manilaresidents of their property without just compensation,for it deprives then neither of the ownership nor of thepossession thereof, but simply restricts them from the

use of such property at certain places for the goods ofthe majority of inhabitants.

x x x



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Police regulations are not a taking under the rightof eminent domain or a deprivation of property withoutdue process of law. Thus, a prohibition on the use ofproperty, for purposes that are declared by valid

legislation to be injurious to the health, morals, orsafety of the community cannot, in any sense, bedeemed a taking or an appropriation of property for thepublic benefit, as such legislation does not disturb theowner in the control or use of his property for lawfulpurpose, nor restrict his right to dispose or it. It is onlya declaration by the state that its use by any one forcertain forbidden purpose is prejudicial to the publicinterests, the exercise of the police power by the

destruction of the property, which is itself a publicnuisance, or the prohibition of its use in a particularway, whereby its value becomes depreciated, is verydifferent from taking property for public use, or fromdepriving a person of his property without due processof law. (Mugler vs. Kansas, 123 U.S., 623; 8 Sup. Ct., 273; 31Law. ed., 205., as cited in See Kee vs. Mayor of Manila)(Emphasis ours)

In Social Justice Society v. Atienza, G.R. No. 156052,

February 13, 2008, the Court reiterated the rule that restrictions on

private property imposed upon the owner to protect lives, health,

including environment, is not confiscatory:

In the exercise of police power, there is a limitationon or restriction of property interests to promote publicwelfare which involves no compensable taking.Compensation is necessary only when the states power ofeminent domain is exercised. In eminent domain, property isappropriated and applied to some public purpose. Propertycondemned under the exercise of police power, on the otherhand, is noxious or intended for a noxious or forbidden purpose

and, consequently, is not compensable. The restrictionimposed to protect lives, public health and safety fromdanger is not a taking. It is merely the prohibition orabatement of a noxious use which interferes with paramountrights of the public.



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Property has not only an individual function, insofar as ithas to provide for the needs of the owner, but also a socialfunction insofar as it has to provide for the needs of theother members of society. The principle is this:

Police power proceeds from the principle thatevery holder of property, however absoluteand unqualified may be his title, holds itunder the implied liability that his use of itshall not be injurious to the equal enjoymentof others having an equal right to theenjoyment of their property, nor injurious tothe right of the community. Rights of property,

like all other social and conventional rights , aresubject to reasonable limitations in theirenjoyment as shall prevent them from beinginjurious, and to such reasonable restraintsand regulations established by law as thelegislature, under the governing and controllingpower vested in them by the constitution, maythink necessary and expedient. (Emphasis ours.)

In this case, the ordinance35 defines buffer zone as an identified 30

meter zone within and around the boundaries of agricultural farms /

plantations that need special monitoring to avoid or minimize harm

to the environment and inhabitants, pursuant to policies and

guidelines set forth in this Ordinance and other government regulations. It

is an area of land that must lie within the property which does not include

public lands, public thoroughfares or adjacent private properties. It must

be planted with diversified trees that grow taller than what are usually

planted and grown in the plantation to protect those within the adjacent

fields, neighboring farms, residential areas, schools and workplaces.

35 Sec 3(e), Ordinance No. 0309-07.



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Thus, the imposition of 30-meter buffer zones constitutes a valid

requirement under the police power exercise since the subject ordinance

seeks to minimize the harmful effects of agricultural activities to the

environment and nearby inhabitants, and establishing these zones

constitutes a reasonable means to achieve the purpose of

providing space to minimize harmful effects to the environment

and inhabitants. This is mandated by Section 16 of the general

welfare clause of the Local Government Code of 1991, reiterating the

rights to health and to a balanced and healthful ecology under Sections

15 and 16, Article II, 1987 Constitution.

It is thus an error on the part of the majority of this Court to have

concluded that the 30-meter buffer zone requirement constitutes unlawful

taking of property without due process, stating therein:

Moreover, the area to be ceded is not a noxious propertyor has not been devoted to a noxious property or has not beendevoted to a noxious purpose. Farms or banana plantations per

se are not noxious to the public welfare. Police power,therefore, cannot be invoked to justify a compulsion forplantation owners to cede a portion of their property as aBuffer Zone without the payment of just compensation.Section 6 of the Ordinance, therefore, constitutesunlawful taking of property without due process.36

The failure of the majority opinion of this Court to appreciate that

the imposition of a buffer zone requirement is for the purpose of

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