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Friday, July 4, 2008

Solgen: Spray ban is constitutional

DAVAO CITY. The Office of the Solicitor General (OSG) has recommended that the decision of the Regional Trial Court that upheld the constitutionality of the Davao City ordinance banning aerial spraying be affirmed "in toto for being in conformity with law, evidence on record and prevailing jurisprudence".

This came following the comment sought by the Judges of Court of Appeals in Cagayan de Oro from the OSG before it comes out with a decision on the case filed by the Pilipino Banana Growers and Exporters Association questioning the constitutionality of the ordinance that has been a subject of debates in and outside the courts.

The OSG comment, signed by assistant Solicitor Generals Magtanggol Castro and Charina Soria and issued June 20, said that PBGEA failed to show "beyond reasonable doubt that ordinance No. 0309-07 is unconstitutional".

"In this case, the burden of proving beyond reasonable doubt that Davao City's Ordinance No. 0309-07 is unconstitutional rested on appellants' shoulders, a burden which they sorely failed to discharge," the OSG said.

The OSG said that the findings of fact by the Regional Trial Court Branch 17, presided by Judge Renato Fuentes, are "accorded by the high court high respect, if not conclusive effect".

In the same manner, the comment also highlighted Davao City government's exercise of police power when it enacted the ordinance banning aerial spraying. Citing section 16 (general welfare clause) of the Local Government Code of 1991, the OSG said that this exercise cannot be questioned.

"Pertinently, the ordinance was enacted for the purpose of abating the health and environment hazards posed by the aerial drift of toxic chemicals consequent to aerial spraying of pesticides in Davao City," the OSG said.

The OSG stressed that PBGEA "vainly failed to persuade the court that the pesticides they were using were not hazardous to humans and the environment…however, despite the expert opinions and technical explanations of (PBGEA) witnesses, the trial court was not convinced that the pesticides used by appellants were not toxic to humans and the environment."

"The warning labels of the products themselves openly declare that their contents are hazardous to humans and the environment, with explicit instructions for their safe handling and use and the manufacturer's disclaimer of any responsibility for their improper use," the OSG said.

The OSG also noted how PBGEA witness Richard Billington, a self-confessed expert employed by the Dow AgroSciences, failed to reconcile his assertions on the non-toxicity to humans of mancozeb, the chemicals used in aerial spraying.

The assertion that the chemicals used in aerial spraying are mild that a person can ingest them without feeling any adverse effects at all is dangerously misleading according to the OSG.

PBGEA, the OSG stressed, failed to offer any compelling evidence to prove the supposed safety of the pesticides they used and added that their theoretical inferences "greatly pales in comparison to the first-hand narratives of the folks residing near the banana plantations".

The OSG was referring to the assertion of the members of the community affected by aerial spraying that they have been drenched with the chemicals used in the chemical application practice, they have inhaled the drift of the chemicals, their children are hit by the drift by going to school, some of them develop skin diseases and pulmonary disorders, among others.

The OSG said that these human accounts, although missing in scientific tag, are credible evidence of the noxious effects of the aerial spraying drift of pesticides.

"In fine, the health and environmental harm caused by aerial spraying of pesticides has turned into a public nuisance in Davao City that affected numerous families. Thus, its immediate abatement is necessary," the OSG said.

Sunstar Davao
July 2, 2008

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