Philippine Court of Appeals

My more than two decades of working within the Science and Technology sector has dad me believe that I had a considerable grasp of certain programs that the sector advocates such as biotechnology having Joined various seminars and for a; written popular articles and speeches; and personally promoted it in schools and other avenues.

Yet, given a different lens with which to view biotechnology, I admit I had to take time to reconsider my position and views regarding the matter. Though I still consider biotechnology as a potentially good tool, along with its inherent risks, to partially help solve many of our problems, reading the actual ruling of the Special Thirteenth Division of the Court of Appeals (CA) made me see it in a different perspective.

It provided the following major realizations: the issue may focus on Bit Talons, but it is actually a pseudo case against biotechnology in general, such that the ruling has an impact on the biotechnology research and development program of the country; It has also gone beyond the realm of science and into the field of public policy and laws; Biotechnology advocates have yet to address the fear of the public on biotechnology, most especially, genetically modified organisms.

Science, though a strong scholastic field in itself, has to contend with laws and culture when applied to society, requiring it to play within the ‘rules and regulations’ of a particular ‘playing field. ‘ Moreover, reading through the CA ruling, it was tempting to question the authority of the court to determine the pros and cons of the case, yet it is obvious that to do such would be unwise. This paper would try hard not to dwell on the legal aspect (its merits and demerits) of the case but how we can learn and move forward in pursuing better and more relevant R&D programs.

Specifically, this paper reviewed the content of the CA ruling, taking a grasp of the positions of the petitioners and respondents, the appreciation of the court of the Philippine Court of Appeals’ Bit Eggplant Ruling: Beyond the Realm of Science By lobbying public), and from there tried to harvest learning and posit recommendations. 1 | Beyond the Realm of Science Why Bit Talons Research? The Southeast Asian Regional Center for Graduate Study and Research in Agriculture – Biotechnology Information Center (SCARCE-BBC) laid the foundation on why the need for BIT Talons in its Biotechnology Information Resources No. Trial written by JAG Panoply and SMS Mercado. “Eggplant farming,” according to the material, “involves 30,243 small-resource farmers, with average holdings of 0. 7 ha. Last year, Bureau of Agricultural Statistics (BAS) data showed that the eggplant areas harvested totaled 21 , 170 ha, with Panamanian, Uneven Acacia, Isabella, Zebu and Guenon as top producers. The volume was 200,942 metric tons, valued at P 3. 13 billion at current prices. ” But like most common vegetables, eggplant in the country is heavily infested by pests, in particular the fruit and shoot borer (Lucidness orbital’s Eugene), which loud wipe out the entire harvest.

The pest feeds on the leaves and shoots during the early vegetative stage, and feasts on the fruit during the fruiting stage. Eggplants riddled with holes cannot be sold anywhere. Though there are various methods to control the pest, most farmers find them to laborious and inefficient. Thus, farmers rely on the use of chemical inputs to solve the pest problem. But the solution itself poses its own set of problems. The resource material cites a finding in the study “Value of Environmental Benefits of Bit eggplant in the Philippines” by Dry. Serge Francisco, Mr… Jason Mapping, and Dry.

George Norton in 2009, that farmers spray about 42 times per production period (others even spray as frequently as 80 times, or every other day), using approximately more than 65 liters (L) of chemicals per hectare. This practice presents a health risk not Just for the farmers but most especially to the consumers. Moreover, the study reports that chemical use takes up almost 30 % of the production cost, or about APP,OHO/ ha per cropping season, a clear additional financial burden to the producers. Bit Talons is seen as a solution to the FSP problem and an alternative to the unhealthy, expensive, and laborious control methods. Beyond the Realm of Science In their study about its environmental benefits, Franciscans team found that Bit eggplant reduces not only pesticide use, but also risks to human and animal health. They found that Bit eggplant could cut by nearly half the amount of pesticide used. Franciscans team estimates that a 48 % reduction in pesticide use is expected from adopting Bit eggplant. It would only require 6. 2 L of pesticide per hectare, about half of what is used for its non-Bit counterpart (12 1/ha). The environmental impact quotient (IQ), or the collective measure of risks related to active ingredients in suicides, went down 19. % for Bit eggplant. Francisco said the environmental benefits brought by in health costs and about UP. 8 million in other environment categories covering farm animals, beneficial insects and avian species. Through modern biotechnology, the Bit eggplant, an FSP-resistant variety, was developed by the Maharajah’s Hybrid Seeds Co. , Ltd. (MACHO) in India. By introducing a gene from the Bacillus thirstiness (Bit), a non-pathogenic, nitroglycerin’s bacterium found in the soil, the eggplant was rendered immune to FSP.

It works in such manner that when an FSP ingests any part of the eggplant -fruit, shoot, or leaf, the pest would die due to the Bit protein. The FSP-resistant eggplant lines developed by MACHO have been used as source of the resistance trait of biotech eggplants in India, Bangladesh, and the Philippines. Bit Talons in the Philippines In the Philippines, Bit eggplant technology has been made available by MACHO to the University of the Philippines Los Banns (PULP) royalty-free through a subsidence agreement. This agreement allows PULP to develop and commercialism varieties and hybrids containing Bit technology.

FSP-Resistant eggplants were developed by the Institute of Plant Breeding (PIP) at PULP with support from the United States Aid for international Studies (SAID) through the Agricultural 3 | Beyond the Realm of Science Biotechnology Support Project II (ABS II), the International Service for the Acquisition of Agoraphobic Application (ISAAC), and the Department of Agriculture (DAD). Currently, several promising FIBS eggplant lines are being fully evaluated for safety and performance under multiplication trials across the country.

The DAD, Bureau of Plant Industry (BPI), the National Committee on Biostatic of the Philippines (NCSC) and the Department of Science and Technology Biostatic Committee (DOST-BC), work together to impose strict regulatory controls on Bit eggplant to ensure that it is safe to people and the environment before it is commercialese. An independent body of assessors called the Scientific and Technical Review Panel (STRAP), composed of scientists and experts from different fields, also ensures the biostatic of the product. This Philippine biostatic scheme is considered as a model by many countries.

Clarita Barron, director of BPI said that they would continue to monitor the field trials, in compliance with the DAD Administrative Order (AY) No. 8, which tastes “no regulated article shall be released into the environment for field testing unless a Permit to Field Test has been secured from the BPI, and the regulated article has been tested under contained conditions in the Philippines. ” BPI certified that the Bit eggplant had satisfied the contained trials (greenhouse and single location contained FL led test) under the supervision of the DOST-BC.

Opposition to Bit Talons On 26 April 2012, Greenback Southeast Asia Philippines, an non-profit domestic civil society organization formed for the purpose of serving as a beacon of public awareness in environmental retention and sustainable development in the country, Nagasaki at Sensitivity as Upgradeable Eng Agricultural (MASSING), a civil society organization composed of farmers, scientists, and Nags Working 4 | Beyond the Realm of Science Basis of the Writ of Salinas?

It rests in Article II, Section 16 on the Declaration of Principles and State Policies of the 1987 Constitution, which states 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 important feature of this writ is that the magnitude acquirement with regards to the destruction or imminent destruction which is sought to be prevented must be present.

Writ of Continuing Mandamus? It is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final Judgment which shall remain effective until Judgment is fully satisfied. It is filed by one who is personally aggrieved. Http://coelenterate. Rug/2012/04/writ-officinal’s-and-writ-of-constitutionalism’s/ towards the sustainable use and management of biodiversity through farmers’ matron of genetic and biological resources, agricultural production, and related knowledge, petitioned the court “to issue a continuing mandamus and writ of Salinas against the respondents to stop the conduct of the multiplication field trials “Pursuant to Presidential Degree No. 1586, in relation to PDP No. 151, the Philippine environmental rights of the Filipino people to a Environmental Impact Statement System balanced and healthy ecology. ” Respondents to the petitions were the Department of Environment and Natural Resources – Environmental Management Bureau (EDEN-EMBED), DAD-BPI and the Fertilizer and Pesticide Authority, PULP, and ISAAC. Greenback and MASSING were Joined in the petition by academic and political personalities among them were Rep. Teddy Casino, Puerco Princess Mayor Edward Headgear, Noel Cabbaging, and Dry.

Ben Malagasy Ill. (EPEES) was established which required the submission of an Environmental Impact Statement before any proposal or project by a government agency or a private entity that significantly affects the environment may be implemented. In line with the EPEES, the EDEN issued Department Administrative Order No. 2003-30 (DAD 2003-30) which would certify that the proposed project or undertaking would not cause significant negative impact o the environment. Part of the Decision by the Special 13th Division of the Court of Appeals At this time, the field testing had already been conducted in the provinces of Panamanian, Laguna, and Canaries Sour. Field trial is still being done in Cabana, North Catboat. Part of the petition for a writ of continuing mandamus is the contention that the field trials are activities that significantly affects the environment and may be considered subject to DAD 082002, the field trials did not comply with the EPEES Law in that no environmental compliance certificate (SEC) for the said field trials were secured from EDEN.

Moreover, it contended that the field trials violated Sections 26 and 27 of the Local Government Code which mandated the conduct of prior consultation with affected local communities and secure the consent of affected local government councils. In support of their petition for the writ of Salinas, the petitioner further contended their constitutional and environmental rights as well as the Filipino principle was disregarded. Likewise, violated is their right to be informed on all matters of public concern including the right to participation and consumer protection.

Further, the petitioners claimed that provisions of the DAD AY No. And the National Biostatic Framework of the Philippines (Executive Order No. 514) were violated in that the respondents 5 | Beyond the Realm of Science failed to conduct valid risk assessment prior to field testing. According to them, the respondents should not have relied completely on the study of MACHO in India and conducted an independent and rigid scientific assessment of the risk to ascertain that the project will not pose any threat to the environment.

On 2 May 2012, the Court issued a writ of Salinas ordering to the respondents to address the petition. The petition for continuing mandamus was held in abeyance ending the reply of the respondents. Addressing the Petition On 22 May 2012, ISAAC filed its verified returns admitting the MOM it entered into along with UPLIFT and MIFF in September 2010 “for the purpose of pursuing R programs for the development of pest-resistant crops through field trials. ” The trials were conducted in four sites namely, PULP; Sat.

Maria, Panamanian; CASABA in Pill, Canaries Sour; and University of Southern Mindanao in South Catboat. In its verified return, ISAAC sought the dismissal of the petition on the failure of the petitioners “to observe the hierarchy of courts and on the ground that the allegations ere mere assertions and baseless conclusions. In opposing the petition to issue writ of Salinas, ISAAC insisted that the respondents complied with all environmental laws to ensure the peoples’ right to a balanced and a healthy ecology was protected and respected.

Moreover, it denied allegations that the public was not given the opportunity to participate in the decision making concerning the field trials and in that the public was not granted access to information. On the contrary, it argued that the respondents conducted extensive public consultation and awareness-raising activities and obtained the consent of respective local councils. In opposing the writ of continuing mandamus, ISAAC submitted that it was not an agency or instrumentality of the government against which a writ of continuing mandamus may be issued.

Furthermore, it insisted that the biostatic framework of BPI which granted the biostatic permits amply safeguard the environmental policies and goals which were being promoted by the EPEES. Also ISAAC opposed the applicability of the precautionary principle in this case suggesting that the field trials were Just part of an ongoing and continuous study inducted in a controlled and contained environment to ensure that it would not pose any significant risk on humans and the environment.

It added that the field trials were experimental in nature and that these are the very precautionary measure with which the respondents were undertaking in deciding the release and centralization of Bit Talons in the market. 6 | Beyond the Realm of Science standing of the petitioners on the basis that none of them sustained damage or prejudice in the conduct of the trials, thus, not the “persons aggrieved. ” On the writ of Salinas, the respondents claimed no unlawful act or omission which ay have violated the right to life, health, and property of people in the test sites. Thus, the precautionary principle does not apply.

On the writ of continuing mandamus, the respondents sought its dismissal on the basis that the petitioners failed to state a cause of action and lack of merit. They asserted that the issues raised were technical matters which pertain to the special competence of BPI, which is entitled to great respect and finality in its decisions. UPLIFT took similar position to ISAAC but added that “it was no longer necessary to secure an SEC since the project would not significantly affect the environment. It also cited “a plethora of scientific works, literature, peer-reviewed, on the safety of Bit Talons for human consumption.

Court Action After the submission of the verified results, the court had to settle three procedural issues, to wit: Whether or not the petitioner had the legal standing to file the instant petition; Whether or not the petition was rendered moot and academic the allegation of the respondent that field trials had already been concluded; and Whether or not the petitioners had presented a Justifiable controversy. In a resolution dated 12 October 2012, the court ruled: that the petitioner had the legal standing to file the instant petition.

Further this court did not share the respondents’ view that the instant case must be dismissed on the ground of monotones, noting that the issues raised by herein petitioner were “capable of repetition yet evading review’ since the Bit Talons field trail is Just one of the phases or stages of an overall and bigger study that is being conducted in relation to the said genetically modified organism. In this regard, the said resolution likewise stated that the petitioners presented Justifiable questions, which were in the ambit of this court to resolve.

With the procedural issues addressed, the court applied the Australian ‘hot-tub’ method in the presentation of evidences. Expert witnesses of both parties were sworn in and presented all at the same time is a form of a free-flowing discussion and cross-examination of each other as well as questioning by the court. 7 | Beyond the Realm of Science After the filing of their formal offer of evidences and resting their case, both party submitted their memoranda in support of their respective side of the case. From there the court had 60 days to resolve the issue. Major Points of the Court Ruling

Talons field trial violate the right of the Filipino to a balanced and healthful ecology? ” To address this issue, the court was confronted with corollary question of whether or not the government had adopted sufficient biostatic protocols n the conduct of field trials and feasibility studies on genetically modified organisms to safeguard the environment and the health of the people. On this corollary question, this is the court’s opinion, “A perusal of the roll or record of the case reveals that, at this moment, there is no single law that governs the study, introduction, and use of Smog in the country.

What e have are mere biostatic regulations that were issued by the Department of Agriculture and the Department of Science and Technology on one hand and the EPEES of the public respondent EMBED on the other hand which when taken together, allegedly govern and regulate the field trials of Smog in the country. ” This led to another issue that needed resolution. The court asked, “Are these regulations sufficient as to guarantee the safety of the environment and the health of the people? To answer this, the court relied on the opinion of Dry. Ben Malagasy Ill when asked, “… Are you saying that we should exercise extraordinary care in the conduct of hose field trials on Bit Talons, and are you saying that the vetting protocols set forth in the Department of Agriculture Order No. 8 are not sufficient? Dry. Inlaying replied, miss, your Honor, I am saying that it is not sufficient because the vetting protocol itself has not been vetted across different sectors of the country… Am saying that I want to raise the precaution under the realm of science into the realm of public policy because, in the event that indeed this would turn out to be bad,… There is at least full public participation in the acceptance of the risks. I think it is not enough that we eave a vetting protocol. The vetting protocol in a situation like Bit Talons that has a very high anticipated good impact for the country must therefore by itself be broad enough that it becomes a national concern. The court placed added emphasis (by underlining and setting in bold font the above and proceeding excerpt) on his opinion that, 8 | Beyond the Realm of Science “Beyond the confines of the farm and the agriculture sector there may be other people out there and other sectors of our economy and society whose lives and practices and cultures may be effected because certain insects are no longer there to vive them the kind of fruits that they have wanted for their own religious rites or anything like that, I mean I am Just imagining, so we need to go beyond that. However, he acknowledged the certainty of the expert to guarantee the safety of the environment and the health of the people due to the protocols of science but he suggested bring the matter to the realm of public policy. To which the court concurred. It also saw the disagreement of both parties as to what guidelines or regulation to follow with regards to field trials of Bit Talons.

The court suggested the need to evaluate our regulations “with the end in view of adopting a et of standards that would govern our study and research of Smog, bearing in mind that this task is a public affair that would affect more sectors of society than we could of the case, “Did the conduct of the Bit Talons field trial violate the right of the Filipino to a balanced and healthful ecology? ” The court concurred with the petitioner, stating, “(the court) finds the instant petition to be impressed with merit and the issuance of the writ of Salinas in order, considering the foregoing premises in this case.

The court also relied on the Rules of Procedure for Environmental Cases which adopted an important concept in evidence which serves as the court’s guide in resolving environmental cases before it – the precautionary principle. It’s applicable “when there is lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case. One interesting indicator which the court cited in applying the precautionary principle which according to the court “stresses the product’s uncertainty is the fact that the consumption of the said product is prohibited pending its “full safety assessment. According to the ruling, the Rules of Procedure for Environmental Cases also relaxes the need to present quantum of evidences to prove potentially hazardous effects on the environment and shifts the burden to prove otherwise to the proponents of the activity that may cause damage to the environment.

Conclusion (My Realizations) The United Nations Economic and Social Council in its 36th Plenary Session Resolution in 2009 recognized, “the role (that) science, technology and engineering can play in developing 9 | Beyond the Realm of Science solutions for the problems facing the world today, including climate change and the DOD and energy crises, and that most of the knowledge that countries need in order to address their most urgent social and economic problems already exist. ” Science has proven its capacity to bring humankind far beyond its limits but it has likewise been recognized that along with it are risks that man has to face.

Yet science itself provides man the needed knowledge, skills, capabilities, and tools to manage risk. Further, it is also recognized that science cannot function in isolation. It has to work within the limits and boundaries that society defines. Such is the case of the Bit Talons field trials case. The potential to solve a huge food and economic problem along with related environmental issue is within reach yet society with its own processes and institutions prevents that potential to be fully realized. But as stated earlier, the limits that society sets are givens and when faced with such limitation man can learn to cope and move on.

From the CA ruling, we can deduce a couple of lessons and find ways to cope. A major realization on this case is that this is not Just about Bit Talons but equally a case against biotechnology in general and Smog in particular. The ruling impacts on all genetic engineering studies and researches. Hence, biotech advocates cannot address the issue on a case-to-case basis but on a whole scale level. The ruling suggests creating a law that would unify all the department orders and guidelines and govern the study, introduction and centralization of Smog.

This suggestion, if the S&T sector decides to adopt, can address a whole lot of various initiated and will definitely involve a wider sector of society. The battle of winning the hearts and minds of local government units has had its obvious success as shown by the hosting of the field trials in various sites. The battle for the Judiciary has already en initiated with the BIT Talons case. A bill on biotechnology can bring the debate to the legislative, a move that can settle once and for all the war on biotechnology.

This definitely proves that this situation has transcended the realm of science to the realm of public policy. Well in a sense this has been the case even before the BIT Talons case, which is evident in the consultations made with local governments and rural people who are perceived 10 | Beyond the Realm of Science to be affected by biotechnology projects. But the involvement of the Judiciary puts the whole situation at a different level. Though it presented and resulted in a temporary setback, it provided a new avenue to really promote and advocate biotechnology.

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