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Monday, September 24, 2007
Davao court upholds aerial spray ban
By Rhodamae M. Hernandez
DAVAO CITY -- Regional Trial Court Judge Renato Fuentes ruled in favor of the City Government's ban on aerial pesticide spray, a day before the three-month temporary restraining order (TRO) on the three-month grace period for the phasing out of the practice expired.
In his resolution dated September 22, Fuentes dismissed the case filed by the Pilipino Banana Growers and Exporters Association (PBGEA) questioning the constitutionality of the ordinance.
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The restraining order expired Sunday.
A copy of the resolution was furnished to the Sentrong Alternatibong Lingap Panligal (Saligan), one of the interveners. The copy was received by Saligan at around 2:50 p.m. Saturday at its office in Juna Subdivision.
Fuentes even lauded the City Government's move to pass the ordinance and cited how PBGEA witnesses failed to support the contention that the ordinance was unconstitutional.
The court said testimonies of PBGEA witnesses were not able to establish the petitioner's case.
Fuentes said PBGEA witness, British agricultural chemicals expert Ricahrd Billington, failed to convince the court that aerial spraying was harmless.
"When confronted with the label of the fungicide Dithane, he (Billington) admitted that his company, Dow AgroSciences European Development Center, has warned users of its dangerous effects to the health of human beings with a disclaimer of responsibility of the company in case any untoward incident resulting from the adverse effect of said fungicide," Fuentes said.
Dow AgroSciences is the manufacturer of Dithane, a chemical used against sigatoka but is known to cause cancer in animals tested in the laboratories.
"His admission of the dangerous effect of the fungicide is enough to put the public on its guard to the danger poised by the particular fungicide," Fuentes said, stressing that the disclaimer of Dow, the manufacturer of the chemical used in aerial spraying, was patent admission of the chemical's adverse effect to the people.
Fuentes, in his decision, put weight on the testimony of the City Government's witness, Dr. Lynn Crisanta Panganiban, who clearly presented her "thesis that all fungicide are poisonous and outright danger to the health and safety of human beings and the environment."
The city presented Panganiban as a witness on the merit of her exposition, theories, and studies of fungicide reflected in her excellent qualification as a doctor of medicine and a pharmacologist, along with her qualification as a toxicologist.
In upholding the constitutionality of the ordinance, Fuentes said the City Government only invoked its police power, as provided for in Local Government Code of 1991, when it approved the ordinance into law.
He explained police power as the state's power to prescribe regulations, promote health, morals, education, good order, and safety for the general welfare of the people.
"The exercise of police power is productive of a constitutional principle of social justice," Fuentes said, citing Section 15, Article II of the 1987 Philippine Constitution that states: "The state shall provide social justice in all forces of national development, along with said declaration, the state shall protect and provide the right to health of the people and instill health consciousness among them."
Fuentes also cited the infamous Oposa vs. Factoran case where the Supreme Court made a landmark environmental decision when it ruled for the protection and safeguard of the environment for the improvement and shared inheritance of the youth of the country.
Fuentes said after a very extensive review and careful evaluation of the voluminous records submitted, arguments and complicated positions from the parties, the court cannot sustain the theory and position of the petitioners in assailing the validity and constitutionality of the city ordinance.
Fuentes also pointed out that the "reasonableness of the ordinance is beyond question."
The implementation of the ordinance, which was to take effect last June 23, hit a snag when PBGEA questioned its constitutionality before the court.
Fuentes issued a writ of preliminary injunction to temporarily stop the implementation for three more months and conducted marathon hearings on the case.
In summing up PBGEA's arguments, Fuentes said the details of the testimonies of the association's witnesses were full of inconsistencies.
Fuentes also said the testimonies of those who were called to testify for the City Government deserved a credible basis for acceptance.
"They are simple people whose actual situation and happenings on the incident of aerial spraying were open and exposed to the court such that the evidence derived from their testimonies are not theories, not projection of possible experiment and or philosophy but reflection of their own simple lives, gravely affected by a concerted problem, confronting them in their everyday existence," Fuentes ruled.
The decision may not have come as a surprise to the PBGEA, which earlier said it is expecting the worst.
In an interview Sunday before word about the ruling broke out, PBGEA president Stpehen Antig said although they were hopeful that the court's ruling will favor them, they are expecting the worst.
In that interview, Antig said, the battle against the ban does not stop here.
"We would have to consult our lawyers on what to do next," Antig said.
Supporters of the ordinance hailed the court's decision.
Government lawyers who stood against the high-profile legal team of PBGEA from the Villaraza & Angangco Law Offices said they are "very happy with" the court's decision.
"We were able to prove our case and the people's plea did not fell into deaf ears," said lawyer Enrique Bonocan of the City Legal Office.
City Administrator Wendel Avisado had only good things to say about the ruling.
"Long live the people. Long live the environment. God is really good," Avisado said.
Dagohoy Magaway, spokesperson for Mamamayan Ayaw sa Aerial Spraying (Maas), said the court decision is a vindication of the long fight waged against the powerful and "moneyed companies composing the PBGEA."
"This is a case that exemplifies how a David can actually defeat a Goliath. This is a victory of truth and of the people and groups who hoped and desired to live in an environment that is safe. This is a triumph for those who want to give their children a better future," Magaway said.
Maas is a wide coalition of different people's organizations, non-government organizations, medical societies and groups, academe, church and the religious, youth and concerned individuals. It has initiated various public demonstrations, forums, and lobbied for aerial spraying to be banned in Davao City. (With report from Carlo P. Mallo)
For more Philippine news, visit Sun.Star Manila. (September 24, 2007 issue)
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