Lawyers Back Davao Ordinance Vs Aerial Spraying

Sep. 09, 2006

DAVAO CITY The Sentro ng Alternatibong Lingap Panlegal (Saligan), a national law group, asserts that there is no law that would be affected by the proposed ordinance banning aerial spraying, a fact that gives the Davao City government a wide space for local legislation.

The absence of a national law on aerial spraying has already been repeatedly stressed by officials of the Fertilizer and Pesticide Authority in several instances. No less than Dr. Norito Gicana, executive director of FPA, said in a letter that there is no specific law, circular or administrative order on aerial spraying.

Saligan, in maintaining the constitutionality of the proposed ordinance, said the only law created regarding pesticides is the one that resulted in the creation of FPA. The law, however, is limited to which kinds of chemicals should be available in the market for agricultural usage.

We agree that the mode of application is secondary to the form of substance. However, no national law governs this activity, Saligan-Mindanao said in a position paper signed by lawyers Raissa Jajurie, Jason Christopher Co, Raymond Salas, Rosalinda Torrefranca, and Maria Julita Asis.

Saligan is a legal resource nongovernment organization doing alternative or developmental legal assistance with farmers, fisherfolk, labor, urban poor, Moro and indigenous peoples on issues of local governance, peace and environment.

The group said that the proposed ordinance banning aerial spraying in the city will test the city governments readiness and will to exercise its police power articulated under the General Welfare Clause of the Local Government Code of 1991.

One of the issues raised by some of the local lawmakers is the constitutionality of the proposed ordinance.

The group said that the General Welfare Clause relates to ordinances and regulations as maybe necessary to carry into effect and discharge the powers and duties conferred upon the city council by law.

This power authorizes such ordinances as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the city and the inhabitants thereof, and for the protection of property therein, the group said.

The group said that the tests of a valid ordinance are well established. The proposed ordinance, for one, does not contravene the Constitution or any statute; it is not unfair and oppressive; not partial and discriminatory; does not prohibit but regulate trade; general and consistent with public policy; and it is reasonable.

Does it prohibit trade? Definitely not as it merely bans an activity of an agricultural entity and not prohibit any trade. Agricultural entities can still perform its business even without an aerial spraying activity, the group said.

The Supreme Court has consistently ruled in favor of local government units asserting their power to prohibit some activities which the LGU believes to be harmful to its inhabitants and the environment, the group added.

The group cited the 1992 Tatel v. Municipality of Virac case where the court concluded that a municipality may, by way of an ordinance, prohibited the construction of warehouses which store inflammable product near houses so as to protect lives and property and thereafter enforce a resolution declaring a subject warehouse a public nuisance and direct the owners to remove and transfer the warehouse.

Citing another case, Tano v. Socrates, the Supreme Court declared as constitutional the city and province ordinances of Puerto Princesa and Palawan, respectively banning the shipment of all live fish and lobster outside their respective jurisdictions and explain that the general welfare clause provisions shall be liberally interpreted to give more powers to the LGU.

In that case, the Supreme Court also noted that there is a specific mention in the local government code which sought to give flesh and blood to the constitutionality of guaranteed right of the people to a balanced and healthy environment.

Former Chief Justice Hilario Davide, when he wrote the decision, said we commend the Sangguniang Panlungsod for exercising the requisite political will to enact urgently needed legislation to protect and enhance the environment, thereby sharing in the herculean task of arresting the tide of ecological destruction. We hope that other LGUs shall not be roused from lethargy and adopt a more vigilant stand in the battle against the decimation of our legacy to the future generations. At this time, the repercussion of any further delay in their response may prove disastrous, if not, irreversible.

These cases reflect the encompassing power of the city and its council as its basis in enforcing a ban on aerial spraying. Aside from that, the council should be guided by the precautionary principle in international environmental laws, the group said.

This principle states that local decision makers should take immediate preventive action using the best available knowledge, in situations where there is reason to think that something is causing a potentially severe or irreparable environmental harm — even in the absence of conclusive scientific evidence establishing a causal link. Let us not put the burden on the environment on this case, but instead heed on the call to end this development pressure, the group added.

If the City Council will pass the ordinance, the group said, it will again become an additional feat for Davao as it is being watched closely now, not only by lobby efforts of interest groups, but also from other areas — locally and internationally.

We cannot undermine the urgency of the matter as the state of health of the people and the environment is at risk in this case. Davao city is actually trailblazing on this mattermost importantly, we are all accountable to the people of Davao, whose interest is to preserve the bounty of the harvest and the richness of our nature, for the next generations of Davaoenos and those yet unborn, the group said.

comments powered by Disqus