Position Paper Amicus Curiae: Bernas, et al.

There is no doubt that the enactment of the Ban Against Aerial Spraying Ordinance by the City of Davao is within its police powers. Even the Court of Appeals, in this case admits so when it said: Unmistakably, it is within the mandate and authority of the City of Davao to enact Ordinance No. 0309-07 since it is a measure that has an ostensible lawful subject. that is, the protection of the public health and the environment against the alleged harmful effects of aerial spraying of pesticides or fungicides. The question there for is whether the ordinance conform to substantive requirements as enumerated in many Supreme Court decisions. In controversies regarding the constitutionality of a statute, law, ordinance, or treaty, the standing position of the Supreme Court, in its numerous rulings, is to grant the presumption of constitutionality and validity. Thus, in Tano vs Socrates (GR No. 110249, August 21, 1997), it held that: It is of course settled that laws enjoy the presumption of constitutionality. To overthrow the presumption, there must be a clear and unequivocal breach of the constitution, not merely a doubtful or argumentative contradiction. In short, the conflict with the Constitution must be shown beyond reasonable doubt. Where doubt exists, even if well founded, there can be finding of unconstitutionality. To doubt is to sustain. The Court in its latest ruling in Social Justice Society vs Atienza, Jr. (G.R. No. 156052, February 13, 2008), reiterated the presumption of constitutionality and validity of a law or an ordinance in this wise, For an ordinance to be valid, it must only be within the corporate powers of the LGU to enact and be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be oppressive or unfair; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must

be general and consistent with public policy; and (6) must not be unreasonable. In analyzing the substantive requirements above stated, it will be noted that these revolves around two basis issues; due process and equal protection. And these are discussed below in seriatim. 1. Due Process Our discussions will center on substantive due process and what this means when the issue is the constitutionality or validity of a law or ordinance. The States exercise of it police power has been long recognized in our jurisdiction. In the 1918 case of Lawton vs Steel, the SC recognized the validity of this exercise in this manner: the State may interfere wherever the public interest demands it, and in this particular instance a large discretion is necessarily vested in the legislature to determine, not only what the interest of the public require, but what measures are necessary for the protection of such interests In the same case, however, the Court set out the metes and bounds of the exercise of this power and its own power to be the arbiter of the reasonableness of the legislative act when it held that: The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the Court. Over many years, however, the Supreme Court has traditionally allowed its competence to be limited by the recognition of the presumptive reasonableness of a government action. In the 1918 US vs Salaveria case involving a municipal ordinance, it said: Who is in a better position to say whether the playing of panguingui (on weekdays) is deleterious to social order and the public interest in a certain municipality the municipal council, or the courts?

The answer is self evident. the judiciary should not lightly set aside legislative action where there is no clear invasion of personal or property rights under the guise of police regulation. A survey of cases where the issue of constitutionality was the lis mota, it was observed that the Court rarely declared a legislative measure unconstitutional not only to give due respect and deference to a coequal but also in obeisance to the doctrine of presumptive validity of official action.

On the Equal Protection clause: In order to the overthrow the presumption of validity accorded to the acts of local legislature, there must be a clear showing that the requisites of equal protection have not been complied with. In a long line of decisions, it has been held that equal protection exists when the law operates equally and uniformly on all persons under similar circumstances1 and that all persons or things similarly situated must be treated alike, both as to rights conferred and responsibilities imposed2. It is enough that there are real and substantive distinctions justifying a valid and reasonable classification. This classification, to be valid, must (1) rest on substantial distinctions, (2) be germane to the purpose of the law, (3) not be limited to existing conditions only, and (4) apply equally to all members of the same class3.
1 2

Sison v Ancheta Association of Small Landowners v Secretary of Agrarian Reform, Philippine Judges Association v Prado 3 Tiu v Court of Appeals, citing Ichong v Hernandez

In the circumstances of this particular case, it is evident that the ordinance in question complies with the requirements of equal protection. It operates equally and uniformly on all within its ambit, treating them alike both as to rights conferred and responsibilities imposed. The decision of the CA dated January 9, 2009 striking down Ordinance 0309-07, Series of 2007, is based, among other reasons, on the violation of equal protection due to a failure to classify which substances are prohibited from being applied aerially. This argument is misguided; the classification involved here is the aerial application itself. An evaluation of this classification involves the standards mentioned above, thus: 1. Is it a substantial distinction? YES. Aerial spraying generates drift beyond the confines of the sprayers property to an extent far beyond ground spraying methods. 2. Is it germane to the purpose of the law? YES. The purpose of the law is to protect the health of the inhabitants of the surrounding communities. The unique nature of aerial spraying and the effects of drift justify its segregation from other spraying methods. 3. Is it not limited to existing conditions only? YES. The ordinance in question imposes an absolute ban on aerial spraying, and not merely on existing spraying activities. 4. Does it apply equally to all members of the same class? YES. All aerial sprays are banned, for any purpose, regardless of who the sprayer is. An examination of the standards above readily lead to the conclusion that Ordinance 0309-07 does not violate the equal protection clause of the Constitution, and that petitioners have failed

to overthrow the presumption of validity which is attendant to the acts of the City of Davao. On political question: It is also worthwhile to note that the Court of Appeals, while expressing uncertainty over the safety of the pesticides and fungicides in question, upheld the petitioners on the basis of uncertainty over the causal connection between the aerial sprays and the ailments suffered by the affected communities. In effect, the Court substituted its judgment for that of the local legislature, which had already exercised its discretion on the basis of the evidence available to it. Such judgment, and the resulting action taken, is the prerogative of the legislature involved and constitutes a political question, being as it is a policy decision implemented with the welfare of the community in mind. A political question connotes a question of policy. It refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or the executive branch of the Government.4

Tanada v Cuenco