– CA denies city’s motion on aerial spraying
The protagonists in the civil case over the constitutionality of a 2007 Davao City ordinance banning the practice of aerial spraying in agricultural activities are now gearing up for a continuation of the battle in the Supreme Court. This, after the Court of Appeals Special Division of Five denied the motion of the city and some intervenors for the appellate court to reconsider its January 2009 decision declaring the ordinance unconstitutional.
The CA ruling, penned last August 7, 2009, was in reversal of a September 2007 decision of the Regional Trial Court in Davao City finding the ordinance valid and constitutional.
The RTC in Davao City decided on the civil case filed by the Pilipino Banana Growers and Exporters Association, Lapanday Food Corporation and Davao Fruits Corporation questioning the constitutionality of the city ordinance. PBGEA and the other petitioners alleged that the city ordinance 1). Constitutes an unreasonable exercise of police power; 2). Violates the equal protection clause of the Constitution; 3). The means employed in the ordinance has no reasonable relation to the purpose sought to be achieved; and 4). That it is tantamount to confiscation of property without due process.
The main parties involved in the case—city government and PBGEA –said they are ready for legal skirmishes in the Supreme Court, virtually the fourth round in the court battle.
City Legal Officer Melchor Quitain was quoted to have said the city government’s legal team has started preparing for the elevation of the case to the SC.
Meanwhile, PBGEA spokesman Anthony B. Sasin said the banana industry is prepared to protect its interest and the millions of Filipinos whose lives depend on it.
Sasin maintained that a blanket ban on, instead of a regulated practice of, aerial spraying is a death blow to the multi-billion industry as it will allow the spread of the deadly sigatoka disease in cavendish banana plantations, aside from increasing the cost of production by at least 30 percent.
In denying the appeal, the Cagayan de Oro City-based CA division reacted strongly at the accusation of the petitioners that the court was biased and prejudiced.
“Such accusation is not only without basis, but is condescending, uncalled for and contemptuous deserving the strongest condemnation not only by members of the Special Division of Five but by the whole Court,” it said in the decision penned by Associate Justice Jane Aurora C. Lantion.
Other members of the division were Associate Justices Romulo V. Borja, Rodrigo F. Lim Jr., Normandie B. Pizarro and Michael Elbinias. Borja wrote the dissenting opinion, using the “buffer zone” issue, arguing that the buffer zone is important because it protects the areas near the plantation from the spray drift.
The city government and groups pushing for the implementation of the ordinance have maintained that they would continue the fight as they plan to elevate it before the Supreme Court.
Earlier, City Administrator Wendel E. Avisado said the city government is prepared for a long fight over the constitutionality of the two-year old ordinance.
Groups opposing aerial spraying have also continued their protest as they have brought the issue before national agencies and fora in Metro Manila.
In asking for reconsideration on the earlier ruling, the city government and the other groups opposing aerial spraying invoked the precautionary principle, or Principle 15 of the Report of the United Nations Conference on Environment and Development.
This principle provides: “In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degredation.”
But the CA pointed out that the principle “recommends that action should be taken by governments or political decision-makers, or legislatures, to prevent serious potential harm to the environment, and perhaps to health, regardless of scientific uncertainty as to the likelihood, or cause of that harm through reasonable legislations within the framework of the Constitution.”
It explained that the city ordinance was still a subject to whether or not it was passed within the framework of the Constitution. “Our earlier decision has already ruled that the subject ordinance has no reasonable relation to the public purpose for which it was passed, and unreasonably precludes other lawful activities; hence unconstitutional,” it added.
In its latest ruling, the CA also put emphasis on the 30-meter radius buffer zone as defined in the city ordnance which is “within and around the boundaries of agricultural farms and plantations.”
“We, therefore reiterate that the Buffer Zone imposition under Section 6 of the Ordinance constitutes unlawful taking of property without due process, and such infirmity taints the whole measure with unconstitutionality,” it added.
It pointed out that a “police regulation which unreasonably restricts the right to use business property for business purposes, amounts to taking of private property and the owner may recover compensation therefore, even as ownership of such property remains with the owner.”
The city ordinance became the subject of a tug-of-war between the city and groups opposing the aerial spraying against the Pilipino Banana Growers and Exporters Association, the main banana association of big companies and growers in the Davao Region.
