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

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 petitionersappellants (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

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

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