Sounding Board

Banana planters vs City of Davao

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer, First Posted 02:20:00 01/26/2009
THE City of Davao passed an ordinance prohibiting aerial spraying in all plantations within the
province and criminally penalizing violation of the ordinance. Obviously it was a health
measure. The ordinance was to take effect three months after approval. The banana planters
challenged the constitutionality of the ordinance mainly on two basic grounds: (1) they claimed
the ordinance was oppressive and confiscatory and (2) it violated equal protection of law.
The argument of oppressiveness was based on a number of factual arguments: (1) the
impossibility of switching to other forms of spraying within three months and the enormous cost
it would take to accomplish the switch; (2) the harm to the health of workers who would do the
manual spraying; (3) and the lack of scientific proof that aerial spraying was harmful to health.
As to equal protection, the ordinance was challenged on the argument that it prohibited all forms
of aerial spraying.
The Court of Appeals based in Cagayan de Oro City, by a vote of 4 to 1, upheld the contention of
the planters that the ordinance was unconstitutional. I am sure, however, that the CAs decision
will not be the end of the story. As the feisty editor of SunStar Davao said, it will be a long haul.
I believe that when the case goes to the Supreme Court , it will give the Court the opportunity to
elaborate on how the due process and equal protection clauses of the Constitution operate.
The case in essence is a conflict between the right to property and the right to life. The accepted
jurisprudence is that in the hierarchy of rights life normally prevails over property. This principle
will certainly play a role in any review of the Court of Appeals decision.
Strangely, while the challengers of the ordinance expressed concern about the health of farm
workers doing manual spraying, no similar concern was expressed about the health of the other
people in the vicinity.
On the battle about the impossibility of carrying out the switch from aerial spraying within the
three-month period set by the ordinance, the challengers set out a parade of experts. Contrary
assessments were also presented by the City of Davao, but the Court of Appeals belittled the
effort of the City saying that it betrays its lack of technical understanding on the intricacies of
the engineering works required for the efficient operation of banana plantations, and exposes its
indifference to the corporeal rights [sic] of banana planters to protect and enhance their
investments.
Will the Supreme Court accept this conclusion or will it send the matter back for further factual
evaluation?
It is also interesting that the Court of Appeals itself did not find itself satisfied with the evidence
on whether the sprays being used were safe or not. It said: We are skeptical of the foregoing

claims on the seemingly fool proof safety of pesticides or fungicides, both as chemical
substances and in terms of human exposure to the same, since petitioners-appellant already
admitted that the pesticides or fungicides they used would prejudice the health of their workers if
manually sprayed. The admission would sensibly mean that exposure to such substances, even in
the diluted form, poses danger to the human health.
The CA continued: Our opinion is not necessarily a categorical indictment against the degree of
safety in the usage of these substances. However, without preponderant and actual empirical
proof of the testimonies of petitioners-appellants witnesses, no conclusion can be reached as to
whether or not the use of pesticides or fungicides is safe.
On the other hand, the court also said that the respondents did not prove that the aerial spraying
of substances is the proximate cause of the various ailments (itchiness and irritation of skin,
contraction and tightening of chest, minimal tuberculosis, recurring stomachaches, nausea and
lost appetite) they allegedly suffer.
On the basis of these two uncertainties the court decided to favor the planters. This raises the
issue whether in a conflicting situation like this where the court is uncertain as to who is wrong
and who is right a court should substitute its judgment for that of the legislator. Apparently the
legislator had made its judgment on the basis of evidence it had found and on labels on the
solutions saying, as the editor of SunStar Davao enumerates:
Harmful if absorbed through the skin, may cause nose, throat, eyes and skin irritation.
Do not breathe dust of spray mist.
This pesticide is toxic to fish. Drift and runoff from treated areas may be hazardous to aquatic
organisms in neighboring areas.
During aerial application, human flaggers must be in enclosed cabs.
What of the lack of equal protection? The argument is that the ordinance prohibits the use of all
sprays without distinction. Here again I am sure that the Supreme Court will have the
opportunity to explain how the equal protection clause operates. But first, does the ordinance
prohibit all forms of spray solutions or only those currently being used in the plantations? In
making allowable classifications, jurisprudence uses two possible approaches: the strict scrutiny
approach and the liberal or rational approach. The strict scrutiny approach is used to measure
classifications based on race, national origin, religion, alienage, denial of the right to vote,
interstate migration, access to courts and other rights recognized as fundamental.
The liberal or rational approach is used in economic matters: briefly, if the legislator finds a
rational basis for making the classification, even if not conclusive, the court will accept it as
valid. Did the Court of Appeals use the strict scrutiny approach?
In conclusion, I agree with the editor of SunStar Davao that the dispute will be a long haul.
http://opinion.inquirer.net/inquireropinion/columns/view/20090126-185524/Banana-planters-vsCity-of-Davao