Court asked to reconsider decision on Davao’s aerial spraying ban

Jul. 13, 2007

DAVAO CITY — Two motions asking the court to reconsider its decision that granted the Pilipino Banana Growers and Exporters Association its appeal for an issuance of a writ of Preliminary Injunction that stopped the implementation of the ordinance banning aerial spraying have been separately filed.

The motions for reconsideration were filed by the City Legal Office, the main respondent of the case filed by PBGEA, and the group who intervened in the case. These came when Judge Renato Fuentes of the Regional Trial Court Branch 17 ordered last June 20 the granting of a writ of preliminary injunction for three months.

The Fuentes decision extended for three more months the period given by the city council before the ordinance banning aerial spraying can be fully implemented. The ordinance was signed into law in February and was supposed to be implemented last June 23.

Signed by lawyer Enrique Bonocan of the City Legal Office, the motion contested that the three months phase-out period provided by the ordinance before its implementation was unreasonable was not proven.

The intervenors motion, signed by their lawyers from the Sentro ng Alternatibong Lingap Panligan (Saligan) Mindanao, on the other hand, contested that the court erred in issuing its ordersince in actions questioning the constitutionality of an ordinance, petitioners must have at least shown a strong case to overcome the presumption of validity in the courts mind, which petitioners failed to do as ruled by this court, the motion said.

That the PBGEA and its member organizationsDavao Fruits Corporations and Lapanday Agricultural and Development Corporationsfailed to prove that the questioned three months phase-out period was unreasonable was even ironically articulated by one their own witnesses, Maria Victoria Sembrano.

As a matter of fact, witness for petitioners in the person of Maria Victoria Sembrano, a certified public accountant, testified and admitted in open court that manual spraying is one of the methods used in spraying fungicides in bananas other than aerial; and that manual method of spraying can be resorted to anytime, the motion said.

This was supported by a series of questions asked by Chief Legal Officer Melchor Quitain to Sembrano who was made to admit that manual spraying can actually be done anytime, even today.

With the admission by the said witness, petitioners claim that to shift from aerial spraing to some other modes of applying fungicides within three months is physically impossible is obviously misleading, highly implausible and glaringly nugatory, the motion stated.

Petitioners themselves admitted, as shown by the quoted declarations of witness Sembrano that they can actually avail of manual spraying, in lieu of the aerial method, at anytime. Such being the case, it perforce follows that the ordinance is actually not unreasonable, neither oppressive, nor confiscatory, it added.

And because of this, the motion said, the court, with due respect, erred in holding that the three months period within which to shift to some other modes of applying fungicides as mandated by the ordinance banning aerial spraying is unreasonable.

The intervenors motions also said that the court failed to appreciate that the case is not an ordinary injunction case where a banana industry seeks to protect its investment from a peeling loss of multi-million dollar industry, but a case involving an ordinance protecting the lives of people.

The intevenors said that the court erred many times on is resolution.

First, it was (a) mistake to have indicated that petitioners has a vested right in embarking into a vast multifarious investment, such right being merely a properly right which can be subverted by police power of the state, it said.

Second, it has not clearly indicated what substantial right and interest the petitioner have to be protected as it was merely in anticipation. Certainly, not its property rights which was failed to be substantiated during the preliminary injunction hearing. Finally, the court failed to indicate in its order what was established by the petitioners during the hearings to validate its issuance of preliminary injunction, it added.

In its decision, the court said that there is a need to grant the writ of preliminary injunction prayed by the petitioners, anticipating a certainty of grave and irreparable damage and injuries the petitioners will suffer if the remedy is not granted, to ensure the protection of substantial right and interest if petitioner, recognizing its vested right in embarking into a vast multifarious investment.

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