Mosqueda v Pilipino Banana Growers and Exporters Association

G.R. No. 189185,
August 16, 2016


G.R. No. 189305



The Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, after a committee hearing and consultations with various stakeholders, on imposing a ban against aerial spraying as an agricultural practice by all agricultural entities within Davao City. Mayor Rodrigo Duterte approved the said ordinance and took effect on March 23, 2007 after its publication in the newspaper Mindanao Pioneer.

Pursuant to Section 5 of the ordinance, the ban against aerial spraying would be strictly enforced three months thereafter. Then the Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its members, namely: Davao Fruits Corporation and Lapanday Agricultural and Development Corporation (PBGEA, et al.), filed their petition in the RTC to challenge the constitutionality of the ordinance, and sought for a temporary restraining order (TRO) and/or writ of preliminary injunction. The residents living within and adjacent to banana plantations in Davao City led by Wilfredo Mosqueda, joined by other residents of Davao City, (Mosqueda, et al.) submitted their Motion for Leave to Intervene and Opposition to the Issuance of a Preliminary Injunction.

The RTC granted and issued the TRO and writ. After trial, the RTC rendered judgment declaring Ordinance valid and constitutional. PBGEA, et al. appealed, and applied for injunctive relief from the CA, which granted the application and consequently issued a TRO to meanwhile enjoin the effectivity of the ordinance.

The CA promulgated its assailed decision reversing the judgment of the RTC. The City of Davao and the intervenors filed their respective motions for reconsideration, but the CA denied the motions. Hence, the separate, but now consolidated, appeals by petition for review on certiorari.


  1. Whether or not Ordinance No. 0309-07 is an invalid exercise of police power: (a) in imposing a ban on aerials praying as an agricultural practice in Davao City under Section 5; (b) in decreeing a 3-month transition-period to shift to other modes of pesticide application under Section 5; and (c) in requiring the maintenance of the 30-meter  buffer zone under Section 6 thereof in all agricultural lands in Davao City.
  2. Whether or not Ordinance No. 0309-07 is ultra-vires act.
  3. Whether or not Ordinance No. 0309-07 is unconstitutional on due process and equal protection grounds for being unreasonable and oppressive;


Ordinance 0309-07 is unconstitutional.
Precautionary principle should be backed with scientific basis
The precautionary principle shall only be relevant if there is concurrence of three elements;

  1. uncertainty
  2. threat of environmental damage and
  3. serious or irreversible harm.

In situations where the threat is relatively certain, or that the causal link between an action and environmental damage can be established, or
the probability of occurrence can be calculated, only preventive, not precautionary measures, may be taken. Neither will the precautionary principle apply if there is no indication of a threat of environmental harm; or if the threatened harm is trivial or easily reversible.

Initially, there has been no scientific study. Although the precautionary principle allows lack of full scientific certainty in establishing a connection between serious or irreversible harm and human activity, its application is still premised on empirical studies. Scientific analysis is still a necessary basis for effective policy choices under the precautionary principle.

The only study conducted to validate the effects of aerial spraying appears to be the Summary Report on the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in Banana Plantations. Yet, the fact-finding team that generated the report was not a scientific study that could justify the resort to the precautionary principle.

Ordinance No. 0309-07 violates the Due Process Clause

The respondents posit that the requirement of maintaining a 30-meter buffer zone under Section 6 of the ordinance violates due process for being confiscatory and that the imposition unduly deprives all agricultural landowners within Davao City of the beneficial use of their property that amounts to taking without just compensation. The contention is devoid of any merit. The establishment of the buffer zone is required for the purpose of minimizing the effects of aerial spraying within and near the plantations. Although Section 3(e) of the ordinance requires the planting of diversified trees within the identified buffer zone, the requirement cannot be construed and deemed as confiscatory requiring payment of just compensation. A landowner may only be entitled to compensation if the taking amounts to a permanent denial of all economically beneficial or productive uses of the land. The respondents cannot be said to be permanently and completely deprived of their landholdings because they can still cultivate or make other productive uses of the areas to be identified as the buffer zones.

Nonetheless, the Ordinance violates the Due Process Clause for being unreasonable and oppressive. In order to declare one as a valid piece of local legislation, it must also comply with the following substantive requirements, namely: (1) it must not contravene the Constitution or any statute; (2) it must be fair, not oppressive; (3) it must not be partial or discriminatory; (4) it must not prohibit but may regulate trade; (5) it must be general and consistent with public policy; and (6) it must not be unreasonable.

Section 5 of Ordinance No. 0309-07 is unreasonable and oppressive in that it sets the effectiveness of the ban at three months after publication of the ordinance. The impossibility of carrying out a shift to another mode of
pesticide application within three months can readily be appreciated given the vast area of the affected plantations and the corresponding resources required therefor.

The required civil works for the conversion to truck-mounted boom spraying alone will consume considerable time and financial resources given the topography and geographical features of the plantations. As such, the conversion could not be completed within the short timeframe of three months. Requiring the respondents and other affected individuals to comply with the consequences of the ban within the three-month period under pain of penalty like fine, imprisonment and even cancellation of business permits would definitely be oppressive as to constitute abuse of police power.

Ordinance No. 0309-07 violates the Equal Protection Clause

Equal protection neither requires universal application of laws to all persons or things without distinction, nor intends to prohibit legislation by limiting the object to which it is directed or by the territory in which it is to operate. The guaranty of equal protection envisions equality among equals determined according to a valid classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another. In other words, a valid classification must be: (1) based on substantial distinctions; (2) germane to the purposes of the law; (3) not limited to existing conditions only; and (4) equally applicable to all members of the class. The total ban on aerial spraying runs afoul with the equal protection clause because it does not classify which substances are prohibited from being applied aerially even as reasonable distinctions should be made in terms of the hazards, safety or beneficial effects of liquid substances to the public health, livelihood and the environment.

Ordinance No. 0309-07 is ultra vires

The Local Government Code vests the municipal corporations with sufficient power to govern themselves and manage their affairs and activities, however they definitely have no right to enact ordinances dissonant with the State’s laws and policy. The Local Government Code is not intended to vest in the local government unit the blanket authority to legislate upon any subject that it finds proper to legislate upon in the guise of serving the common good. The function of pesticides control, regulation and development is within the jurisdiction of the FPA under Presidential Decree No. 1144. The FPA was established in recognition of the need for a technically oriented government entity that will protect the public from the risks inherent in the use of pesticides. Evidently, the FPA was responsible for ensuring the compatibility between the usage and the application of pesticides in agricultural activities and the demands for human health and environmental safety.

In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City of Davao performed an ultra vires act. As a local government unit, the City of Davao could act only as an agent of Congress, and its every act should always conform to and reflect the will of its principal. Every local government unit only derives its legislative authority from Congress. In no instance can the local government unit rise above its source of authority.

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