Buttress for Another Round

By: Mymannah Lou O. Dimacaling

Paulo Coelho once said, When we least expect it, life sets us a challenge to
test our courage and willingness to change; at such a moment, there is no
point in pretending that nothing has happened or in saying that we are not
yet ready. The challenge will not wait. Life does not look back. A week is
more than enough time for us to decide whether or not to accept our
destiny. 1
In a place known as Crown Jewel of Mindanao, called by the
Clatta or Guiangans as Duhwow, or Davau, a conflict arises between
Pilipino Banana Growers and Exporters Association (PBGEA) and the
Government of Davao City.

In 2007, PBGEA filed for temporary injunction against the implementation

of an ordinance banning aerial spraying. The association contested the city
government's power to pass such ordinance. Other complainants in this
case are Davao Fruits Corporation and the Lapanday Agricultural and
Development Corporation. The group attacked the validity of the ordinance
stating that it was passed without basis.

On the other hand, the city government of Davao city is the respondent with
the 12 intervenors, all residents of areas in the city's third district directly
affected by aerial spraying, include Wilfredo Mosqueda, Marcelo Villaganes,
Crispin Alcomendras, Corazon Sabinada, Geraldine Catalan, Julieta
Lawagon, Rebeca Saligumba, Florencia Sabandon, Carolina Pilongo,
Alejandra Bentoy, Ledevina Adlawan, and Virgenia Cata-ag.2

1
Quotes about challenges at http://www.goodreads.com/quotes/tag/challenges
2
Mindanews, Court OKs intervenors in aerial spray ban trial,
at http://www.mindanews.com/c3-news/2007/06/06/court-oks-intervenors-in-aerial-spray-ban-trial/.
Aerial spraying or the use of small planes to drop agrochemicals is a
shameful and blatant disregard for the peoples right to health, environment
and livelihoods. In aerial spraying, people do not have a choice. Peoples
personal boundaries are violated by the chemical trespass. The most
adversely affected are the rural poor, the small farmers who live within and
around banana plantations.3

Temporary Injunction is a court order prohibiting an action by a party to

a lawsuit until there has been a trial or other court action.4

I. PILIPINO BANANA GROWERS AND EXPORTERS

ASSOCIATION (PBGEA)

Pilipino Banana Growers and Exporters Association (PBGEA) was

established in 1974. It is a non-stock corporation that serves as the central
coordinating agency for the development and the advancement of the
banana export industry in the Philippines. It serves as the self-regulatory
forum for the players in the industry to ensure compliance to international
quality standards, continued competitiveness in the global market,
undertake and promote research for technological innovations, and to look
after the welfare of all those involved in the industry.5

Members of PBGEA include AMS Group of Companies, Inc, Sumifru

Philippines, ANFLO Group of Companies, Alip River Development and
Export Corporation, Del Monte Fresh Produce Philippines, La Frutera
Incorporated, Lapanday Foods Corporation, Hijo Resources Corporation,
Diamond Farms Inc, Dizon Group of Companies, Marsman-Drysdale Group
of Companies, Nader and Ebrahim Hassan Philippines, Saranggani

3
Ban Aerial Spraying of Pesticides at http://www.saligan.org/index.php/archives/52-ban-aerial-spraying-of-
pesticides.html.
4
The Free Dictionary at http://legal-dictionary.thefreedictionary.com/temporary+injunction
5
About PBGEA at http://pbgea.com/?page_id=31 .
Agricultural Company Inc, Nova Vista Management and Development
Corporation, Dole Stanfilco and Tristar Group of Banana Companies.6

In 2007, the association filed a civil case in the RTC of Davao City
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.7

In one of the article posted in the website of PBGEA, its executive director
Stephen Antig was asked for his comments regarding the issue of banning
aerial spraying. On his part, he said that while the industry has been
continuously improving and upgrading its practices, which primarily rely on
scientific research and development and advanced technologies, some
groups continue to wage smear campaign against the industry.

He added that while the issues raised are mere rehash, the industry will no
longer take it sitting down as there are families who will go hungry and
communities that will be saddled with socio-economic problems brought
about by unemployment and inadequate livelihood opportunities should the
industry suffers.

Furthermore, Antig added that Instead of hitting the government and the
industry, these critics like Idis8 and Maas9 propagandists should somehow
make significant contributions in generating jobs and livelihood
opportunities in the countryside as this is now the primary concern of

6
People vs Profit at http://peoplevsprofit.wordpress.com/2007/11/29/people-vs-profit-a-briefer-on-the-stop-the-
toxic-shower-campaign-in-davao-city/.
7
City govt., PBGEA brace for battle in Supreme Court at http://www.edgedavao.net/index.php?
option=com_content&view=article&id=1009:city-govt-pbgea-brace-for-battle-in-supreme-court .
8
Interface Development Interventions (Idis).
9
Mamamayan Ayaw sa Aerial Spraying (Maas).
everyone amidst the massive devastation brought about by natural
calamities. Otherwise, they should justify their vigilance to what they
claimed as human rights issues without distorting the facts.

II. CITY GOVERNMENT OF DAVAO AND ITS RESIDENTS

DIRECTLY AFFECTED BY AERIAL SPRAYING

The city government of Davao passed ordinance no. 0309-07, series of 2007
banning aerial spraying as an agricultural practice in all agricultural
activities by all agricultural entities in Davao City.

On the other hand, the movants-intervenors, all residents of areas in the city
experienced the adverse effects thereof on their health and livelihood. Their
residences and farms are found in areas within or adjacent to banana
plantations. They have personally experienced having been sprayed upon
with substances coming from the plane/or inhaled the same, or having their
crops and water sources sprayed with the substance, as stated in the motion
signed by their legal counsel led by Atty. Raissa Jajure and her colleagues
from Sentro ng Alternatibong Lingap Panligal (Saligan). They invoked the
constitutional right to a balanced and healthful ecology, and health as
guaranteed under the constitution.10

Furthermore, according to Interface Development Interventions (Idis),

Aerial Spraying has three issues, they are as follows:11

First Issue: The chemicals sprayed is inherently poison. Pesticides are

designed to kill. Even if registered by the Fertilizer and Pesticide Authority,

10
Davao Today, Group Files Motion to Intervene in Banana Firms Case vs Davao City Govt
at http://davaotoday.com/environment/group-files-motion-to-intervene-in-banana-firms-case-vs-davao-city-govt/.
11
3 issues on Aerial Spraying at http://peoplevsprofit.wordpress.com/2007/11/29/3-issues-on-aerial-spraying/ .
they still have ill effects on non-target organisms. Women and children are
especially vulnerable to effects of pesticides.

Second Issue: Aerial spraying increases the spray drift. Predictable

percentage of spray drift can reach to 3.2 km from the treatment site
(USEPA). A study in Central Washington says it can reach 80 km in hilly
terrain under windy conditions. Aerial Spraying contaminates open/exposed
bodies of water (rivers, wetlands, and springs) where people get drinking
water! It contaminates the roofs of houses where people usually collect
rainwater for domestic use! So, it sure contaminates people, animals, other
crops.

Third Issue: Poor regulation on aerial spraying; lack of enforcement;

lack of monitoring. Vegetative buffer zones required near schools, rivers,
public roads, and houses, is not complied with by banana companies. It is
amazing that the proposed buffer zone by different concerned
organizations, which is less than 1 mile around drinking water, cannot be
complied with. In Alaska, the current required buffers to protect drinking
water sources is 66 meters.

Regulations for aerial spraying are not regularly monitored by Fertilizers

and Pesticides Authority because of lack of personnel and
budget.which means there is a lack of environmental health
monitoring in the country.12

III. THE REGIONAL TRIAL COURT

The court allowed the residents affected by the aerial spraying to intervene
in the case and to support the city government and its ordinance.

12
Id.
In its decision, the Regional Trial Court found that the ordinance was
constitutional. However, it was reversed by the Court of appeals.

IV. COURT OF APPEALS

It reversed the decision of the Regional Trial Court (RTC). In its resolution,
it states that PBGEA was able to establish a prima facie evidence.

In a write-up by IDIS, the court gave more credence to the reference of

PBGEA to government agencies like the Department of Health (DOH),
Fertilizer and Pesticide Authority, and the Department of Trade and
Industries (DTI). They took the paper of the DTI that vouched to the
acceptability of aerial spraying as an internationally accepted Good
Agricultural Practice.13

What is more, the CA decision also pointed, "the lead agencies of the
government, such as the FPA and the DOH show that such practice is safe
and cannot harm the environment and that sickness and deaths in the
barangays near the plantations are not tied up to the chemicals being used
in aerial spraying." 14

In asking for reconsideration, 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. Nonetheless, 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

13
Pro-Aerial Spray Ban Contest CA Injunction at http://idisphil.org/dirtybananas/pro-aerial-spray-ban-contest-ca-
injunction/.
14
Id.
to the likelihood, or cause of that harm through reasonable legislations
within the framework of the Constitution. 15

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.16

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. 17

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., as written in the
blog of EDGE Davao.18

During that time, the City Legal Officer Melchor Quitain was quoted to have
said the city governments legal team has started preparing for the
elevation of the case to the SC. On the other hand, Anthony B. Sasin,
spokesperson of PBGEA, said that the banana industry is prepared to
protect its interest and the millions of Filipinos whose lives depend on it;

15
See supra note 7.
16
Id.
17
Id.
18
Id.
 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.19

At any rate, regarding the accusation of the petitioners that the court was
biased and prejudiced, Associate Justice Jane Aurora C. Lantion said that
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. 20

On the contrary, Associate Justices Romulo V. Borja wrote a 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.21

IV. LAWS RELATED TO THE CASE

A. Article II, 1987 Philippine Constitution:

Declaration of Principles and State Policies

Section 15. The State shall protect and promote the right to health of
the people and instill health consciousness among them.

Section 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm
and harmony of nature.

19
Id.
20
Id.
21
Id.
 B. DAVAO CITY ORDINANCE No. 0309-07, series of 2007

Salient features of the Ordinance which banned Aerial Spraying as an

agricultural practice in all agricultural activities by all agricultural
entities in Davao City:22

I. Bans aerial spraying as an agricultural practice in Davao City 3

months after effectivity of the ordinance;

II. Gives plantations 3 months to shift from aerial to ground

spraying;

III. Defines aerial spraying as the application of substances through

the use of aircraft of any form;

IV. Requires plantations to put up 30-meter buffer zones to protect

adjacent fields, neighboring farms, residential areas, schools and
workplaces;

V. Defines buffer zones as:

a. a 30-meter area within the property of the plantation

b. does not include public land, public thoroughfare or adjacent

private property

c. planted with diversified trees that grow taller than what is

grown in the plantation

VI. Requires plantations to submit survey plan of plantation with

buffer zones clearly identified through GPS

22
Salient features of the ordinance at http://peoplevsprofit.wordpress.com/salient-features-of-the-ordinance/
 C. RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT 23

Principle 15

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 degradation.

V. CONCLUSION

Consequently, the case is still pending for review on the Supreme Court.
The government of Davao City, the intervenors and PBGEA buttress for
battle in Supreme Court.

I opt that the court will uphold the Davao Citys ordinance banning
aerial spray in order that the environment will be protected. The right of
the people will be heard, no more residents will be affected and there
will be a balance and healthful ecology. Not only these, but as well as, it
will promote and give importance to the right to health of the people
and instill health consciousness among them. There will be no threats of
serious or irreversible damage wherein lack of full scientific certainty
are used as a reason for postponing cost-effective measures to prevent
environmental degradation.

23
Rio Declaration on Environment and Development at http://www.unep.org/Documents.Multilingual/Default.asp?
DocumentID=78&ArticleID=1163