Wednesday, January 14, 2009 Aerial spray ban case: Why Justice Borja dissented
JUSTICE Romulo Borja, the executive justice of the Cagayan de Oro-based Court of Appeals (CA), is the lone dissenting voice in the court's decision to declare "unconstitutional" the Davao City ordinance that banned aerial spraying of pesticides.
Among the many reasons he did not join four other justices in the majority, according to his 34-page dissenting opinion, was that the banana growers "cherry-pick their evidence."
Chiefly, however, Justice Borja said the Pilipino Banana Growers and Exporters Association (PBGEA) failed to "overthrow the presumption in favor of the validity of the ordinance."
"To me, appellants' (PBGEA) arguments have, at most engendered some doubt. But under the prevailing constitutional jurisprudence, such doubt is not sufficient for this court to declare the ordinance unconstitutional," the Cagayan de Oro native magistrate said.
One of the contentious points in the case is the three-month transition period set by the ordinance for banana growers to shift to ground spraying from aerial spraying.
The court's 47-dage decision described the three-month compliance period "impractical" and "unreasonable, oppressive and impossible to comply with."
On the contrary, Borja said it was the banana growers who actually failed to establish that the time limit was not doable.
He noted how PBGEA employee Maria Victoria Cembrano, a Certified Public Accountant (CPA), testified that the plantations would need at least P400 million to shift to manual or ground spraying. Cembrano also admitted to the "feasibility of shifting" chemical application practice from aerial spraying.
While lawyers of PBGEA admitted on Cembrano's incompetence to testify on technical or engineering matters, the appellants did not stop from invoking her testimony that manual spraying was less safe compared to truck-mounted spraying, Borja said.
"If Cembrano, a mere CPA, was incompetent to testify on the technical feasibility of an immediate shift to manual spraying, a matter for engineers, neither was she competent to testify on the efficiency and safety of truck-mounted spraying relative manual spraying and engineering matter. Appellants cherry-pick their evidence," he said.
As a CPA, Cembrano's expertise lies in the field of finance and Borja said that as a witness, she "clearly invoked a fundamental truth in any economic undertaking: that the bottom line is money."
"Temporal and logistical constraints are overcome if sufficient financial resources are committed to the undertaking. The ultimate constraint, therefore, is finances...in other words, the shift to manual spraying within three months transition is feasible," he said.
The only question now is whether manual spraying is safe and efficient or not, said Borja, who stressed the testimonies offered by PBGEA expert-Anacleto Pedrosa, a plant doctor, "deserve a good hard look."
"Dr. Pedrosa's - and appellants' - solicitousness for the workers of the banana plantation is commendation, but I do not find it matched by an equal concern for those, not being connected in any manner to the business of the plantations, are nonetheless subject to spray drift," he said.
"While there may be such drift even in manual spraying, in the case of aerial spraying, the drift is most pronounced. This lies at the heart of the controversy before this Court: aerial spraying maximizes the amount of pesticide subject to drift. It will not belittle the impact of such drift on persons inhabiting areas around and near the banana plantations. The Court finds that, in the exercise of its regulatory powers, the Sangguniang Panlungsod [City Council] of Davao City had this foremost in mind," Borja added.
Scrutinizing further the testimony of Pedro, Borja said he found a "serious gap" between his statements and the evidence presented by PBGEA.
"He did not dwell on whether there are available sufficient protective gears or devices or clothing that can insulate the manual sprayer from the toxic chemicals he is spraying or on the cost thereof. This is a serious gap...it is incumbent upon them to establish by at least clear and convincing evidence that all forms of ground spraying was 'unreasonable, oppressive and impossible to comply with."
He said: "By their relative reticence on the feasibility of manual or back-pack spraying, appellants have failed to establish their claim of unreasonableness of the transition period. There is no reason to conclude that the manual sprayer cannot be protected from the toxic spray. It is possible that appellants merely do not want to expend the amounts necessary to protect their workers.
Borja also disagreed with PBGEA's contention that the chemicals used in aerial spraying are no longer hazardous to human health because they have been diluted in water.
When the majority ruled: "neither side has sufficiently established to the Court's satisfaction that the chemicals aerially sprayed is or is not hazardous to one's health," the dissenting justice argued that the burden of proof lies primarily on PGBEA because it is the petitioner in the case.
"Considering that the case involves a challenge to the constitutionality of a statute, that burden is all the more urgent," he added.
Moreover, the majority of the justices said they were "convinced that the total ban on aerial spraying runs afoul with the equal protection clause because it does not classify which substances are prohibited from being applied aerially even as reasonable distinctions should be made in terms of the hazards, safety, or beneficial effects of liquid substances to the public health, livelihood, and the environment."
But Borja thought otherwise.
"It bears repeating: the essence of the assailed ordinance is that it is a measure against air pollution. This is why it is the aerial spraying as an agricultural practice which is being prohibited and not any specific that is being sprayed," he said.
It is clear, he said, that not all spraying of substances is banned but only those that are actually practiced by the agricultural companies in Davao City that includes pesticides.
While majority of his colleagues called the farmers opposing aerial spraying as "squatters", Borja said: "no evidence appears to have been adducted in support of the thesis that appellants' plantations and the practice of aerial spraying of pesticides and fungicides predated the ownership or occupation of the properties by the persons affected by aerial spraying."
"The reference to some of the affected persons as squatters is purely gratuitous and grossly unfair. Lastly, the principle has utterly no applicability in the present case. Environmental degradation cannot be justified on the basis of prior or long-adopted practice," Borja said.
