POSITION PAPER

PILIPINO BANANA GROWERS AND EXPORTERS ASSOCIATION INC.

The Court Appeals is correct in ruling that Ordinance 0309-07 constituted an

unreasonable exercise of police power.

There is no question that it is within the power of the Sangguniang

Panglungsod of Davao City to enact such ordinance (Section 16 or the General

Welfare Clause, and under Section 458 of the Local Government Code) as such

involves a measure with a lawful subject, that is, the protection of the public health

and the environment against the alleged harmful effects of aerial spraying of

pesticides and fungicides. However, in the exercise of such power, the means

employed must also be reasonable. It must not unduly be oppressive to

individuals. In this case, it has been shown as will be discussed below that such

means is unreasonable and unduly oppressive to individuals, particularly our

client, the Pilipino Banana Growers and Exporters.

I. Section 5 of the Ordinance requiring a period of 3 months to shift from aerial

spraying to ground spraying is “unreasonable, oppressive and impossible to

comply with”

Section 5 of the Ordinance is unreasonable because in effect it criminalizes

aerial spraying even as it would be physically impossible for the banana growers

to be able to configure their banana plantations for ground spraying within such

insufficient period of 3 months. As correctly ruled by the respondent Court of

Appeals, “[I}n view of the infrastructural requirements, it was physically be

impossible for petitioners-appellants (banana growers) to carry out a carefully

planned configuration of vast hectares of banana plantations and be able to

actually adopt truck-mounted boom spraying within 3 months. To compel

petitioners-appellants (banana growers) to abandon aerial spraying in favor of

manual or backpack spraying or sprinkler spraying within 3 months puts

petitioners-appellants (banana growers) in a vicious dilemma between protecting

its investments and the health of its workers, on the one hand, and the threat of

prosecution if they refuse to comply with the imposition”

Furthermore “the 3-month transition period is insufficient not only in

acquiring and gearing up the plantation workers and safety appurtenances, nut

more importantly in reviewing safety procedures for manual or backpack spraying

and in training such workers for the purpose. Also, the engineering works for a

sprinkler system in vast hectares of banana plantations could not possibly be

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completed within such period, considering that safety and efficient factors need to

be considered in structure re-designing.”

Section 5 also, in effect, compels petitioners-appellants (banana growers) to

abandon aerial spraying without affording them enough time to convert to other

spraying practices. This would petitioners-appellants (banana growers) from being

able to fertilize their plantation with essential vitamins and minerals, aside from

applying the needed pesticides and fungicides to control if not eliminate the threat

of plant diseases. Such the would prejudice the operation of plantations, and the

economic repercussions thereof may lead to shutting down the venture of

petitioners-appellants (banana growers).

II. Even assuming arguendo that it was physically possible for the petitioners-

appellants (banana growers) to shift to other modes of spraying, still the

Ordinance in question is invalid because there is no scientific basis for banning

aerial spraying

There is no scientific basis that aerial spraying of pesticides or fungicides

poses a serious threat to the health and livelihood of people and to the

environment. The oppositors argue that since the Court of Appeals ruled that the

issue of aerial spraying as inimical to public health and livelihood has not been

factually settled, then the presumption of validity must be applied. This is

untenable. The presumption of validity is inapplicable in this case. Legislation

must be based on hard facts. Inasmuch as it would prejudice petitioners-appellants

(banana growers) if such Ordinance is not based on hard evidence to show that

aerial spraying is inimical to public safety, then the burden of proof is on the

Sanggunian to prove otherwise.

III. The Ordinance violates the equal protection clause of the Constitution

The Ordinance violates the equal protection clause because it is a sweeping

importation against the aerial spraying of all forms of substances, not only

pesticides or fungicides but including water and all forms of chemicals, regardless

of its elements, composition or degree of safety. As the Court of Appeals

correctly held, “[It] does not classify which substances are prohibited from being

aerially even as reasonable distinctions would be made in terms of the hazards,

safety or beneficial effects of liquid substances to the public health, livelihood and

the environment. The measure also fails to differentiate among classes of

pesticides or fungicides, and does not distinguish levels of concentration of such

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substances when aerially sprayed, such that even substances which are beneficial

to and enhance agricultural production are covered by the ban.

IV. The means employed provided for in the Ordinance has no relation to the

purpose sought to be achieved

The means to enforce the ordinance has no reasonable relation to the evil

sought to be avoided, which is the alleged harmful effects of pesticides on public

health and the environment, because instead of regulation the substances sprayed,

the measure bans aerial spraying which is the means to achieve the purpose, hence,

only a method of application.

In effect, the Ordinance forbids the aerial spraying even of vitamins or

other substances like water which are commonly known as safe and which

normally enhance the growth and harvest thereby compromising agricultural

productivity. This amounts to an arbitrary intrusion into the banana growers’ and

exporters’ prerogatives in pursuing a lawful endeavor and in protecting its

investments, exceeding what must be fairly required by the legitimate demands of

public welfare

V. The Ordinance is tantamount to confiscation of property without due process of

law

Section 6 of the Ordinance provides that “all agricultural entities must

provide fro a 30-meter buffer zone within the boundaries of their agricultural

farms / plantations.” This is an unreasonable police measure as it violates the due

process clause in that it is tantamount to confiscation of property without due

process of law.

The requirement under Section 6 apparently makes no fair distinction as to

the area or size of the plantation over which the buffer zone would be established.

It imposes a fixed 30-meter buffer zone without regard to the size of the

landholdings or plantations. Owners of farms, even those with areas of perhaps 1

or 2 hectares, or maybe lesser, which could meagerly accommodate a low-budget

activity, would then cede portions thereof for such purpose, downsizing the area to

be cultivated and constricting further the viability of their farmlands for profitable

endeavors. Thus the requirement violates due process because it unreasonably

deprives plantation owners of the lawful and beneficial use of such areas to be

ceded, without just compensation.

Moreover, the area to be ceded is not noxious property or has not been used

for noxious purpose. Farms and banana plantations per se are not noxious to the

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public welfare. Hence, police power cannot be invoked to justify a compulsion for

plantation owners to cede a portion of their property as a buffer zone without the

payment of just compensation. So, Section 6 constitute unlawful taking without

due process.

BALISI, REODY ANTHONY M.

PINEDA, GIULIA FRANCESCA

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