April 2016

WHY THE PHILIPPINES SUPREME COURT RULED AGAINST GM EGGPLANT

The Supreme Court’s bold move is testimony of the growing rejection of genetically modified organisms worldwide.

By Lee Aruelo

            In what is regarded as a historic move, the Supreme Court of the Philippines in December 2015 ordered a permanent ban on the field testing of GM (genetically modified) eggplant and a temporary halt to all applications for contain use, import, propagation and commercialization of GM crops and products.  

          After a lengthy assessment of scientific evidence, the Supreme Court found that “there exists a preponderance of evidence that the release of GMOs (genetically modified organisms) into the environment threatened to damage ecosystems… and eventually the health” of the Filipino people from the consumption of the GM eggplant.

            It also concluded that “current scientific research indicates that the biotech industry has not sufficiently addressed the uncertainties over the safety of GMO foods and crops.”

            This ruling builds on the experience of other countries such as in Europe where many GMOs have been rejected due to social, health and environmental concerns.

            The GM eggplant is the world’s first genetically modified eggplant with insecticidal protein from the soil bacterium Bacillus thuringiensis (Bt). Originally developed in India by a Monsanto subsidiary, it was further developed in the Philippines, and is known as Bt talong (the Filipino word for eggplant). In 2010, the Institute of Plant Breeding at the University of Philippines at Los Banos obtained approval for field testing of the Bt eggplant in seven sites in the country.

            However, the decision sparked protests from various quarters and in April 2012, a group of non-governmental organizations, scientists and farmers filed a petition to the Supreme Court for a Writ of Kalikasan (1) (or nature) to halt the introduction of the Bt eggplant citing social and environmental concerns and the constitutional right of the people to a balanced and healthful environment. They also maintained that the field testing of the Bt eggplant did not comply with the required public consultation as provided for under Local Government Code.

            The respondents were the Department of Environment and Natural Resources, the Environment Management Bureau, the Department of Agriculture, the University of the Philippines Los Banos Foundation, the University of the Philippines Mindanao Foundation and the International Service for the Acquisition of Agri-biotech Applications.

            The Supreme Court issued the Writ of Kalikasan against the respondents and referred the case to the Court of Appeals (CA) for hearing, reception of evidence and rendition of judgment. The CA then proceeded to hear the merits of the case, adopting a method wherein the expert witnesses of both parties testify at the same time.

            The CA rendered its decision on 17 May 2013, in favour of the petitioners. However, two respondents — the Department of Agriculture and Institute of Plant Breeding, University of the Philippines Los Banos — filed an appeal against the CA’s decision. On 20 September 2013, the CA reaffirmed its decision of permanently halting the Bt eggplant field trials.

            However, a number of the respondents challenged the decision by filing a petition to the Supreme Court to reverse the CA’s decision.

            In December 2015, the Philippine Supreme Court gave its decisions which in many ways find in favour of the petitioners’ concerns. It permanently stopped the field testing of Bt eggplant on the basis of the non-implementation of the National Biosafety Framework, particularly in terms of shortfalls in the risk assessment and public consultation requirements as well as violated binding international obligations contained in the Cartagena Protocol on Biosafety. It also declared null and void the Department of Agriculture's Administrative Order No. 8 (herewith DAO8) governing the importation and release into the environment of plants and plant products derived from the use of modern biotechnology.

            The Supreme Court said the so-called risk assessment was not robust enough and that it did not employ as the basis of its assessment, the Precautionary Principle which states that in the absence of scientific consensus, a new product and process that could cause harm should be prohibited. It invoked the Principle mainly because it believes that the release of GMOs into the environment threatened to damage ecosystems and public health. This is first time that the Philippine Supreme Court had applied the Precautionary Principle.

            In addition, it also found that the government body that conducted the risk assessment, instead of reviewing all available evidences, had evaluated the potential risks of the proposed release of the GMO for field testing based only on the available scientific and technical information submitted by the proponents of the GMO to be released.

                           In a separate document issued at the same time as the decision by the Supreme Court, Associate Justice Marvic Leonen issued a concurring opinion where he detailed the defects of the public participation requirement outlined in DAO8. He stated that the absence of an effective mechanism for public feedback during the application process for field testing means that the DAO8 failed to meet public participation requirement of the Cartegena Protocol on Biosafety and the National Biosafety Framework.

            The Supreme Court found that the “petitioners simply adhered to the procedures laid down by [DAO8] and no real effort was made to operationalize the principles of the [National Biosafety Framework]” where field testing of the Bt eggplant is concern.

            While DAO8 requires posting and publication of notices and information sheets, the National Biosafety Framework mandates a more transparent, meaningful and participatory public consultation with some residents and government officials and encourages submission of written comments.  

            The casual approach to public participation during the application process is obvious as there is no appeal procedure for third parties under DAO8. There is no avenue for communities affected to bring up their case or grievances.

            Not only does it not adhere to the National Biosafety Framework, the regulation also does not meet the requirements of the Cartagena Protocol on Biosafety that the Philippines have signed on to. Article 23 of the Protocol stresses that the public must be consulted in the decision-making process regarding genetically modified organisms and that the decision made in this regard must be communicated to the public.

            The Supreme Court also took issue with the absence of Environmental Impact Assessment which is mandated under the National Biosafety Framework for the release of GMOs into the environment.

            The government considers an “Environmentally Critical Project” as one that is “likely to have significant adverse impact that may be sensitive, irreversible and diverse” and which “includes activities that have significant environmental consequences”.  In this context, and given the overwhelming scientific attention worldwide on the potential hazards of GMOs to human health and the environment, their release into the environment through field testing would definitely fall under this category.

            Based on the above mentioned deficiencies, the Supreme Court maintains that the said regulation in its current form could not be used as the guideline to regulate field testing or commercialization of the Bt eggplant. The effect of the Supreme Court’s ruling is that until a new law or regulation was passed that is consistent with the Constitution, treaty obligations and international laws, no genetically modified ingredients, processes or products could be imported, field tested or commercially propagated in the Philippines.

            However, on 7 March 2016, a number of government departments, namely, the Department of Science and Technology, Department of Agriculture, Department of Environment and Natural Resources, Department of Health and Department of Interior and Local Government approved the new Joint Department Circular on Rules and Regulations for the Research and Development, Handling and Use, Transboundary Movement, Release into the Environment, and Management of Genetically Modified Plant and Plant Products Derived from the Use of Modern Biotechnology. This Joint Department Circular will allow the issuance of fresh permits for the planting or import of GM crops into the Philippines. It remained to be seen as to whether the Circular will truly protect the rights of the Filipino people to a balanced and healthy environment as provided for under the Constitution, and that it is consistent with the country’s binding international obligations as contained in the Cartagena Protocol on Biosafety. – Third World Network Features.

Note

(1)   A Writ of Kalikasan is a legal remedy under Philippine law that provides protection of one's constitutional right to a healthy environment, as outlined in Section 16, Article II of the 1987 Philippine Constitution, which stipulates that the "state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature". The Writ of Kalikasan may be sought to deal with environmental damage of such magnitude that it threatens life, health, or property of inhabitants in two or more cities or provinces.

The Supreme Court decision is historic as it is the first decision to be made using Writ of Kalikasan, a legal environmental remedy found only in the Philippines.

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About the author: Lee Aruelo is a lawyer and Associate of Third World Network based in the Philippines.

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