INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH

APPLICATIONS v. GREENPEACE SOUTHEAST ASIA , GR No. 209271, 2016-07-26

Facts:
From 2007 to 2009, petitioner University of the Philippines Los Baiios (UPLB), the
implementing institution of the field trials, conducted a contained experiment on Bt talong
under the supervision of the National Committee on Biosafety of the Philippines (NCBP)
The NCBP, created under Executive Order No. (EO) 430,... is the regulatory body tasked to:
(a) "identify and evaluate potential hazards involved in initiating genetic engineering
experiments or the introduction of new species and genetically engineered organisms and
recommend measures to minimize risks"; and (b) "formulate and review national policies
and guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests
and their genetic materials for the protection of public health, environment[,] and
personnel^] and supervise the implementation thereof."
Upon the completion of the contained experiment, the NCBP issued a Certificate... therefor
stating that all biosafety measures were complied with, and no untoward incident had
occurred
On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries (BPI) issued two (2)-
year Biosafety Permits... for field testing of Bt talong
Consequently, field testing proceeded in approved trial sites in North Cotabato, Pangasinan,
Camarines Sur, Davao City, and Laguna.
On April 26, 2012, respondents Greenpeace Southeast Asia (Philippines) (Greenpeace),
Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG), and others
(respondents) filed before the Court a Petition for Writ of Continuing Mandamus and Writ of
Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection Order
(TEPO)
(petition for Writ of Kalikasan) against herein petitioners... alleging that the Bt talong field
trials violated their constitutional right to health and a balanced ecology considering, among
others, that: (a) the Environmental Compliance Certificate (ECC), as required by
Presidential Decree No. (PD) 1151,... was not secured prior to the field trials;... b) the
required public consultations under the Local Government Code (LGC) were not complied
with;... and (c) as a regulated article under DAO 08-2002, Bt talong is presumed harmful to
human health and the environment, and that there is no independent, peer-reviewed study
showing its safety for human consumption and the environment
Further, they contended that since the scientific evidence as to the safety of Bt talong
remained insufficient or uncertain, and that preliminary scientific evaluation shows
reasonable grounds for concern, the precautionary principle should be applied and, thereby,
the field trials be enjoined.
On May 2, 2012, the Court issued... a Writ of Kalikasan against petitioners (except UPLB
May 17, 2013, the CA ruled in favor of respondents and directed petitioners to permanently
cease and desist from conducting the Bt talong field trials.
Issues:
the case should have been dismissed for mootness in view of the completion and
termination of the Bt talong field trials and the expiration of the Biosafety Permits;... b) the
Court should not have ruled on the validity of DAO 08-2002 as it was not raised as an issue
Ruling:
The Proceedings Before the Court
Agreeing with the CA, the Court held that the precautionary principle applies in this case
since the risk of harm from the field trials of Bt talong remains uncertain and there exists a
possibility of serious and irreversible harm. The Court observed that eggplants are a staple
vegetable in the country that is mostly grown by small-scale farmers who are poor and
marginalized; thus, given the country's rich biodiversity, the consequences of contamination
and genetic pollution would be disastrous and irreversible.
The Court likewise agreed with the CA in not dismissing the case for being moot and
academic despite the completion and tennination of the Bt talong field trials, on account of
the following exceptions to the mootness principle: (a) the exceptional character of the
situation and the paramount public interest is involved; and (b) the case is capable of
repetition yet evading review.
Thus, the Court permanently enjoined the field testing of Bt talong. In addition, it declared
DAO 08-2002 null and void for failure to consider the provisions of the NBF. The Court also
temporarily enjoined any application for contained use, field testing, propagation,
commercialization, and importation of genetically modified organisms until a new
administrative order is promulgated in accordance with law.
The Court's Ruling
The Court grants the motions for reconsideration on the ground of mootness.
As a rule, the Court may only adjudicate actual, ongoing controversies.
Accordingly, the Court is not empowered to decide moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the result as to the thing in issue
in the case before it. In other words, when a case is moot, it becomes non-justiciable
An action is considered "moot" when it no longer presents a justiciable controversy because
the issues involved have become academic or dead or when the matter in dispute has
already been resolved and hence, one is not entitled to judicial intervention unless the issue
is likely to be raised again between the parties. There is nothing for the court to resolve as
the determination thereof has been overtaken by subsequent events
Nevertheless, case law states that the Court will decide cases, otherwise moot, if: first,
there is a grave violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest are involved; third, when the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet evading review
Thus, jurisprudence recognizes these four instances as exceptions to the mootness
principle.
In the December 8, 2015 Decision of the Court, it was held that (a) the present case is of
exceptional character and paramount public interest is involved, and (b) it is likewise
capable of repetition yet evading review. Hence, it was excepted from the mootness
principle
However, upon a closer scrutiny of the parties' arguments, the Court reconsiders its ruling
and now finds merit in petitioners' assertion that the case should have been dismissed for
being moot and academic, and that the aforesaid exceptions to the said rule should not
have been applied.
I. On the paramount public interest exception.
However, a survey of cases would show that, as a common guidepost for application, there
should be some perceivable benefit to the public which demands the Court to proceed with
the resolution of otherwise moot questions.
no perceivable benefit to the public - whether rational or practical - may be gained by
resolving respondents' petition for Writ of Kalikasan on the merits.
To recount, these cases, which stemmed from herein respondents petition for Writ of
Kalikasan, were mooted by the undisputed expiration of the Biosafety Permits issued by the
BPI and the completion and tennination of the Bt talong field trials subject of the same
These incidents effectively negated the necessity for the reliefs sought by respondents in
their petition for Writ of Kalikasan as there was no longer any field test to enjoin. Hence, at
the time the CA rendered its Decision dated May 17, 2013, the reliefs petitioner sought and
granted by the CA were no longer capable of execution.
As the matter never went beyond the field testing phase, none of the foregoing tasks related
to propagation were pursued or the requirements therefor complied with. Thus, there are no
guaranteed after-effects to the already concluded Bt talong field trials that demand an
adjudication from which the public may perceivably benefit. Any future threat to the right of
herein respondents or the public in general to a healthful and balanced ecology is therefore
more imagined than real
In fact, it would appear to be more beneficial to the public to stay a verdict on the safeness
of Bt talong - or GMOs, for that matter - until an actual and justiciable case properly
presents itself before the Court
II. The case is not one capable of repetition vet evading review.Likewise, contrary to the
Court's earlier ruling... these cases do not fall under the "capable of repetition yet evading
review" exception.
Under DAO 08-2002, no specific guidelines were used in the conduct of risk assessment,
and the DA was allowed to consider the expert advice of, and guidelines developed by,
relevant international organizations and regulatory authorities of countries with significant
experience in the regulatory supervision of the regulated article.
However, under JDC 01-2016, the CODEX Alimentarius Guidelines was adopted to govern
the risk assessment of activities involving the research, 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.
Based on the foregoing, it is apparent that the regulatory framework now applicable in
conducting risk assessment in matters involving the research, development, handling,
movement, and release into the environment of genetically modified plant and plant
products derived from the use of modern biotechnology is substantially different from that
which was applied to the subject field trials. In this regard, it cannot be said that the present
case is one capable of repetition yet evading review.
the Court discerns that there are two (2) factors to be considered before a case is deemed
one capable of repetition yet evading review: (1) the challenged action was in its duration
too short to be fully litigated prior to its cessation or expiration; and (2) there was a
reasonable expectation that the same complaining party would be subjected to the same
action.
Here, respondents cannot claim that the duration of the subject field tests was too short to
be fully litigated. It must be emphasized that the Biosafety Permits for the subject field tests
were issued on March 16, 2010 and June 28, 2010, and were valid for two (2) years.
However, as aptly pointed out by Justice Leonen, respondents filed their petition for Writ of
Kalikasan only on April 26, 2012 -just a few months before the Biosafety Permits expired
and when the field testing activities were already over.[108] Obviously, therefore, the
cessation of the subject field tests before the case could be resolved was due to
respondents' own inaction.
Moreover, the situation respondents complain of is not susceptible to repetition. As
discussed above, DAO 08-2002 has already been superseded by JDC 01-2016. Hence,
future applications for field testing will be governed by JDC 01-2016 which, as illustrated,
adopts a regulatory framework that is substantially different from that of DAO 08-2002.
In fact, in relation to the latter, it is observed that the Court should not have even delved into
the constitutionality of DAO 08-2002 as it was merely collaterally challenged by
respondents, based on the constitutional precepts of the people's rights to information on
matters of public concern, to public participation, to a balanced and healthful ecology, and
to health.
All told, with respondents' petition for Writ of Kalikasan already mooted by the expiration of
the Biosafety Permits and the completion of the field trials subject of these cases, and with
none of the exceptions to the mootness principle properly attending, the Court grants the
instant motions for reconsideration and hereby dismisses the aforesaid petition. With this
pronouncement, no discussion on the substantive merits of the same should be made.
Principles:
At this point, the Court discerns that there are two (2) factors to be considered before a
case is deemed one capable of repetition yet evading review: (1) the challenged action was
in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there
was a reasonable expectation that the same complaining party would be subjected to the
same action.
 EN BANC

G.R. No. 209271, December 08, 2015

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH

APPLICATIONS, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASIÑO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO
QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN
AND EDWIN MARTHINE LOPEZ, Respondents.

CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF

ENVIRONMENT AND NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND
FERTILIZER AND PESTICIDE AUTHORITY OF THE DEPARTMENT OF
AGRICULTURE, Petitioners, v. COURT OF APPEALS, GREENPEACE SOUTHEAST
ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO
QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN
AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE PHILIPPINES,
INC. Petitioner-in-Intervention.

G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION,

INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ
LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.

G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA

(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
 MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO
QUIJANO, DR. WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND
EDWIN MARTHINE LOPEZ, Respondents.

DECISION

VILLARAMA, JR., J.:

The consolidated petitions before Us seek the reversal of the Decision1 dated May 17,
2013 and Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-
G.R. SP No. 00013 which permanently enjoined the conduct of field trials for genetically
modified eggplant.

The Parties

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of

Greenpeace Southeast Asia, a regional office of Greenpeace International registered in
Thailand.3 Greenpeace is a non-governmental environmental organization which
operates in over 40 countries and with an international coordinating body in
Amsterdam, Netherlands. It is well known for independent direct actions in the global
campaign to preserve the environment and promote peace.

Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc.

(ISAAA) is an international non-profit organization founded in 1990 "to facilitate the
acquisition and transfer of agricultural biotechnology applications from the industrial
countries, for the benefit of resource-poor farmers in the developing world" and
ultimately "to alleviate hunger and poverty in the developing countries." Partly funded
by the United States Agency for International Development (USAID), ISAAA promotes
the use of agricultural biotechnology, such as genetically modified organisms (GMOs).4

Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a

coalition of local farmers, scientists and NGOs working towards "the sustainable use and
management of biodiversity through farmers' control of genetic and biological
resources, agricultural production, and associated knowledge."

The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the
University of the Philippines (UP), originally established as the UP College of Agriculture.
It is the center of biotechnology education and research in Southeast Asia and home to
at least four international research and extension centers. Petitioner UPLB Foundation,
Inc. (UPLBFI) is a private corporation organized "to be an instrument for
institutionalizing a rational system of utilizing UPLB expertise and other assets for
generating additional revenues and other resources needed by [UPLB]". Its main
purpose is to assist UPLB in "expanding and optimally utilizing its human, financial, and
material resources towards a focused thrust in agriculture, biotechnology, engineering
and environmental sciences and related academic programs and activities." A
memorandum of agreement between UPLBFI and UPLB allows the former to use
available facilities for its activities and the latter to designate from among its staff such
personnel needed by projects.5
Petitioner University of the Philippines (UP) is an institution of higher learning founded
in 1908. Under its new charter, Republic Act 9500,6 approved on April 29, 2008 by
President Gloria Macapagal-Arroyo, UP was declared as the national university tasked
"to perform its unique and distinctive leadership in higher education and development."
Among others, UP was mandated to "serve as a research university in various fields of
expertise and specialization by conducting basic and applied research and development,
and promoting research in various colleges and universities, and contributing to the
dissemination and application of knowledge."7

The other individual respondents are Filipino scientists, professors, public officials and
ordinary citizens invoking their constitutionally guaranteed right to health and balanced
ecology, and suing on their behalf and on behalf of future generations of Filipinos.

Factual Background

Biotechnology is a multi-disciplinary field which may be defined as "any technique that

uses living organisms or substances from those organisms to make or modify a
product, to improve plants or animals, or to develop microorganisms for specific
uses."8 Its many applications include agricultural production, livestock, industrial
chemicals and pharmaceuticals.

In 1979, President Ferdinand Marcos approved and provided funding for the
establishment of the National Institute for Applied Microbiology and Biotechnology
(BIOTECH) at UPLB. It is the premier national research and development (R & D)
institution applying traditional and modern biotechnologies in innovating products,
processes, testing and analytical services for agriculture, health, energy, industry and
development.9

In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the
National Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among
others, to "identify and evaluate potential hazards involved in initiating genetic
engineering experiments or the introduction of new species and genetically engineered
organisms and recommend measures to minimize risks" and to "formulate and review
national policies and guidelines on biosafety, such as the safe conduct of work on
genetic engineering, pests and their genetic materials for the protection of public
health, environment and personnel and supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the
regulation of the importation or introduction, movement and field release of potentially
hazardous biological materials in the Philippines. The guidelines also describe the
required physical and biological containment and safety procedures in handling
biological materials. This was followed in 1998 by the "Guidelines on Planned Release of
Genetically Manipulated Organisms (GMOs) and Potentially Harmful Exotic
Species (PHES)."10

On December 29, 1993, the Convention on Biological Diversity (CBD) came into force.
This multilateral treaty recognized that "modern biotechnology has great potential for
human well-being if developed and used with adequate safety measures for the
environment and human health." Its main objectives, as spelled out in Article 1, are the
"conservation of biological diversity, the sustainable use of its components and the fair
and equitable sharing of the benefits arising out of the utilization of genetic resources."

In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety

(Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol aims "to
contribute to ensuring an adequate level of the safe transfer, handling and use of living
modified organisms resulting from modern biotechnology that may have adverse effects
on the conservation and sustainable use of biological diversity, taking into account risks
to human health, and specifically focusing on transboundary movements."

On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force
on September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate
Resolution No. 92 or the "Resolution Concurring in the Ratification of the Cartagena
Protocol on Biosafety (CPB) to the UN Convention on Biological Diversity."

On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement

reiterating the government policy of promoting the safe and responsible use of modern
biotechnology and its products as one of several means to achieve and sustain food
security, equitable access to health services, sustainable and safe environment and
industry development.11

In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO)
No. 08 providing rules and regulations for the importation and release into the
environment of plants and plant products derived from the use of modem
biotechnology.

DAO-08-2002 covers the importation or release into the environment of: (1) any plant
which has been altered or produced through the use of modem biotechnology if the
donor organism, host organism, or vector or vector agent belongs to the genera or taxa
classified by the Bureau of Plant Industry (BPI) as meeting the definition of plant pest
or is a medium for the introduction of noxious weeds; or (2) any plant or plant product
altered through the use of modem biotechnology which may pose significant risks to
human health and the environment based on available scientific and technical
information.

The country's biosafety regulatory system was further strengthened with the issuance
of EO No. 514 (EO 514) on March 17, 2006, "Establishing the National Biosafety
Framework (NBF), Prescribing Guidelines for its Implementation, and Strengthening the
NCBP." The NBF shall apply to the development, adoption and implementation of all
biosafety policies, measures and guidelines and in making decisions concerning the
research, development, handling and use, transboundary movement, release into the
environment and management of regulated articles.12

EO 514 expressly provides that, unless amended by the issuing departments or

agencies, DAO 08-2002, the NCBP Guidelines on the Contained Use of Genetically
Modified Organisms, except for provisions on potentially harmful exotic species which
were repealed, and all issuances of the Bureau of Food and Drugs Authority (FDA) on
products of modem biotechnology, shall continue to be in force and effect.13

On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed

between UPLBFI, ISAAA and UP Mindanao Foundation, Inc.
(UPMFI), in pursuance of a collaborative research and development project on
eggplants that are resistant to the fruit and shoot borer. Other partner agencies
involved in the project were UPLB through its Institute of Plant Breeding, Maharastra
Hybrid Seed Company (MAHYCO) of India, Cornell University and the Agricultural
Biotechnology Support Project II (ABSPII) of US AID.

As indicated in the Field Trial Proposal15 submitted by the implementing institution

(UPLB), the pest-resistant crop subject of the field trial was described as a
"bioengineered eggplant." The crystal toxin genes from the soil bacterium Bacillus
thuringiensis (Bt) were incorporated into the eggplant (talong) genome to produce the
protein CrylAc which is toxic to the target insect pests. CrylAc protein is said to be
highly specific to lepidopteran larvae such as the fruit and shoot borer (FSB), the most
destructive insect pest of eggplant.

Under the regulatory supervision of NCBP, a contained experiment was started in 2007
and officially completed on March 3, 2009. The NCBP thus issued a Certificate of
Completion of Contained Experiment stating that "During the conduct of the
experiment, all the biosafety measures have been complied with and no untoward
incident has occurred."16

BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010.
Thereafter, field testing of Bt talong commenced on various dates in the following
approved trial sites: Kabacan, North Cotabato; Sta. Maria, Pangasinan; Pili, Camarines
Sur; Bago Oshiro, Davao City; and Bay, Laguna.

On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et

al.) filed a petition for writ of kalikasan and writ of continuing mandamus with prayer
for the issuance of a Temporary Environmental Protection Order (TEPO). They alleged
that the Bt talong field trials violate their constitutional right to health and a balanced
ecology considering that (1) the required environmental compliance certificate under
Presidential Decree (PD) No. 1151 was not secured prior to the project implementation;
(2) as a regulated article under DAO 08-2002, Bt talong is presumed harmful to human
health and the environment, and there is no independent, peer-reviewed study on the
safety of Bt talong for human consumption and the environment; (3) a study conducted
by Professor Gilles-Eric Seralini showed adverse effects on rats who were fed Bt corn,
while local scientists also attested to the harmful effects of GMOs to human and animal
health; (4) Bt crops can be directly toxic to non-target species as highlighted by a
research conducted in the US which demonstrated that pollen from Bt maize was toxic
to the Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that
beneficial insects have increased mortality when fed on larvae of a maize pest, the corn
borer, which had been fed on Bt, and hence non-target beneficial species that may feed
on eggplant could be similarly affected; (6) data from China show that the use
of Bt crops (Bt cotton) can exacerbate populations of other secondary pests; (7) the
built-in pesticides of Bt crops will lead to Bt resistant pests, thus increasing the use of
pesticides contrary to the claims by GMO manufacturers; and (8) the 200 meters
perimeter pollen trap area in the field testing area set by BPI is not sufficient to stop
contamination of nearby non-Bt eggplants because pollinators such as honeybees can
fly as far as four kilometers and an eggplant is 48% insect-pollinated. The full
acceptance by the project proponents of the findings in the MAHYCO Dossier was
strongly assailed on the ground that these do not precisely and adequately assess the
numerous hazards posed by Bt talong and its field trial.

Greenpeace, et al. further claimed that the Bt talong field test project did not comply
with the required public consultation under Sections 26 & 27 of the Local Government
Code, A random survey by Greenpeace on July 21, 2011 revealed that ten households
living in the area immediately around the Bt talong experimental farm in Bay, Laguna
expressed lack of knowledge about the field testing in their locality. The Sangguniang
Barangay of Pangasugan in Baybay, Leyte complained about the lack of information on
the nature and uncertainties of the Bt talong field testing in their barangay. The Davao
City Government likewise opposed the project due to lack of transparency and public
consultation. It ordered the uprooting of Bt eggplants at the trial site and disposed
them strictly in accordance with protocols relayed by the BPI through Ms. Merle
Palacpac. Such action highlighted the city government's policy on "sustainable and safe
practices." On the other hand, the Sangguniang Bayan of Sta. Barbara, Iloilo passed a
resolution suspending the field testing due to the following: lack of public consultation;
absence of adequate study to determine the effect of Bt talong field testing on friendly
insects; absence of risk assessment on the potential impacts of genetically modified
(GM) crops on human health and the environment; and the possibility of cross-
pollination of Bt eggplants with native species or variety of eggplants, and serious
threat to human health if these products were sold to the market.

Greenpeace, et al. argued that this case calls for the application of the precautionary
principle, the Bt talong field testing being a classic environmental case where scientific
evidence as to the health, environmental and socio-economic safety is insufficient or
uncertain and preliminary scientific evaluation indicates reasonable grounds for concern
that there are potentially dangerous effects on human health and the environment.

The following reliefs are thus prayed for:

a. Upon the filing [of this petition], a Temporary Environment Protection Order should
be issued: (i) enjoining public respondents BPI and FPA of the DA from processing for
field testing, and registering as herbicidal product, Bt talong in the Philippines; (ii)
stopping all pending field testing of Bt talong anywhere in the Philippines; and (in)
ordering the uprooting of planted Bt talong for field trials as their very presence pose
significant and irreparable risks to human health and the environment.

b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact
statement system under the Environmental Management Bureau;

(ii) Respondents to submit independent, comprehensive, and rigid risk assessment,

field tests report, regulatory compliance reports and supporting documents, and other
material particulars of the Bt talong field trial;

(iii) Respondents to submit all its issued certifications on public information, public
consultation, public participation, and consent of the local government units in the
barangays, municipalities, and provinces affected by the field testing of Bt talong;

(iv) Respondent regulator, in coordination with relevant government agencies and in

consultation with stakeholders, to submit an acceptable draft of an amendment of the
National Bio-Safety Framework of the Philippines, and DA Administrative Order No. 08,
defining or incorporating an independent, transparent, and comprehensive scientific and
socio-economic risk assessment, public information, consultation, and participation, and
providing for their effective implementation, in accord with international safety
standards; and,

(v) Respondent BPI of the DA, in coordination with relevant government agencies, to
conduct balanced nationwide public information on the nature of Bt talong and Bt
talong field trial, and a survey of social acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to
file their respective returns and explain why they should not be judicially sanctioned for
violating or threatening to violate or allowing the violation of the above-enumerated
laws, principles, and international principle and standards, or committing acts, which
would result into an environmental damage of such magnitude as to prejudice the life,
health, or property of petitioners in particular and of the Filipino people in general.

d. After hearing and judicial determination, to cancel all Bt talong field experiments that
are found to be violating the abovementioned laws, principles, and international
standards; and recommend to Congress curative legislations to effectuate such
order.18
ChanRoblesVirtualawlibrary

On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental
Management Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB,18-
a
 ordering them to make a verified return within a non-extendible period often (10)
days, as provided in Sec. 8, Rule 7 of the Rules of Procedure for Environmental Cases.19

ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all
argued that the issuance of writ of kalikasan is not proper because in the
implementation of the Bt talong project, all environmental laws were complied with,
including public consultations in the affected communities, to ensure that the people's
right to a balanced and healthful ecology was protected and respected. They also
asserted that the Bt talong project is not covered by the Philippine Environmental
Impact Statement (PEIS) Law and that Bt talong field trials will not significantly affect
the quality of the environment nor pose a hazard to human health. ISAAA contended
that the NBF amply safeguards the environment policies and goals promoted by the
PEIS Law. On its part, UPLBFI asserted that there is a "plethora of scientific works and
literature, peer-reviewed, on the safety of Bt talong for human consumption."20 UPLB,
which filed an Answer21 to the petition before the CA, adopted said position of UPLBFI.

ISAAA argued that the allegations regarding the safety of Bt talong as food are
irrelevant in the field trial stage as none of the eggplants will be consumed by humans
or animals, and all materials that will not be used for analyses will be chopped, boiled
and buried following the Biosafety Permit requirements. It cited a 50-year history of
safe use and consumption of agricultural products sprayed with commercial Bt microbial
pesticides and a 14-year history of safe consumption of food and feed derived
from Bt crops. Also mentioned is the almost 2 million hectares of land in the Philippines
which have been planted with Bt corn since 2003, and the absence of documented
significant and negative impact to the environment and human health. The statements
given by scientists and experts in support of the allegations of Greenpeace, et al. on the
safety of Bt corn was also addressed by citing the contrary findings in other studies
which have been peer-reviewed and published in scientific journals.
On the procedural aspect, ISAAA sought the dismissal of the petition for writ
of kalikasan for non-observance of the rule on hierarchy of courts and the allegations
therein being mere assertions and baseless conclusions of law. EMB, BPI and FPA
questioned the legal standing of Greenpeace, et al. in filing the petition for writ
of kalikasan as they do not stand to suffer any direct injury as a result of the Bt
talong field tests. They likewise prayed for the denial of the petition for continuing
mandamus for failure to state a cause of action and for utter lack of merit.

UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that
they have been prejudiced or damaged, or their constitutional rights to health and a
balanced ecology were violated or threatened to be violated by the conduct of Bt
talong field trials. Insofar as the field trials in Davao City, the actual field trials at Bago
Oshiro started on November 25, 2010 but the plants were uprooted by Davao City
officials on December 17-18, 2010. There were no further field trials conducted and
hence no violation of constitutional rights of persons or damage to the environment,
with respect to Davao City, occurred which will justify the issuance of a writ
of kalikasan. UPMFI emphasized that under the MOU, its responsibility was only to
handle the funds for the project in their trial site. It pointed out that in the Field Trial
Proposal, Public Information Sheet, Biosafety Permit for Field Testing, and Terminal
Report (Davao City Government) by respondent Leonardo R. Avila III, nowhere does
UPMFI appear either as project proponent, partner or implementing arm. Since UPMFI,
which is separate and distinct from UP, undertook only the fund management of Bt
talong field test project the duration of which expired on July 1, 2011, it had nothing to
do with any field trials conducted in other parts of the country.

Finally, it is argued that the precautionary principle is not applicable considering that
the field testing is only a part of a continuing study being done to ensure that the field
trials have no significant and negative impact on the environment. There is thus no
resulting environmental damage of such magnitude as to prejudice the life, health,
property of inhabitants in two or more cities or provinces. Moreover, the issues raised
by Greenpeace, et al. largely involve technical matters which pertain to the special
competence of BPI whose determination thereon is entitled to great respect and even
finality.

By Resolution dated July 10, 2012, the Court referred this case to the CA for
acceptance of the return of the writ and for hearing, reception of evidence and rendition
of judgment.22

CA Proceedings and Judgment

At the preliminary conference held on September 12, 2012, the parties submitted the
following procedural issues: (1) whether or not Greenpeace, et al. have legal standing
to file the petition for writ of kalikasan; (2) whether or not said petition had been
rendered moot and academic by the alleged termination of the Bt talong field testing;
and (3) whether or not the case presented a justiciable controversy.

Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et
al. possess the requisite legal standing to file the petition for writ of kalikasan; (2)
assuming arguendo that the field trials have already been terminated, the case is not
yet moot since it is capable of repetition yet evading review; and (3) the alleged non-
compliance with environmental and local government laws present justiciable
controversies for resolution by the court.

The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method
wherein the expert witnesses of both parties testify at the same time. Greenpeace, et
al. presented the following as expert witnesses: Dr. Ben Malayang III (Dr. Malayang),
Dr. Charito Medina (Dr. Medina), and Dr. Tushar Chakraborty (Dr. Chakraborty). On the
opposing side were the expert witnesses in the persons of Dr. Reynaldo Ebora (Dr.
Ebora), Dr. Saturnina Halos (Dr. Halos), Dr. Flerida Cariño (Dr. Cariño), and Dr. Peter
Davies (Dr. Davies). Other witnesses who testified were: Atty. Carmelo Segui (Atty.
Segui), Ms. Merle Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr.
Randy Hautea (Dr. Hautea).

On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an
Urgent Motion for Leave to Intervene as Respondent.24 It claimed to have a legal
interest in the subject matter of the case as a broad-based coalition of advocates for
the advancement of modern biotechnology in the Philippines.

In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for
intervention stating that the latter had no direct and specific interest in the conduct
of Bt talong field trials.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents are DIRECTED to: chanRoblesvirtualLawlibrary

(a) Permanently cease and desist from further conducting bt talong field trials; and

(b) Protect, preserve, rehabilitate and restore the environment in accordance with the
foregoing judgment of this Court.

No costs.

SO ORDERED.26 ChanRoblesVirtualawlibrary

The CA found that existing regulations issued by the DA and the Department of Science
and Technology (DOST) are insufficient to guarantee the safety of the environment and
health of the people. Concurring with Dr. Malayang's view that the government must
exercise precaution "under the realm of public policy" and beyond scientific debate, the
appellate court noted the possible irreversible effects of the field trials and the
introduction of Bt talong to the market.

After scrutinizing the parties' arguments and evidence, the CA concluded that the
precautionary principle set forth in Section 1, Rule 20 of the Rules of Procedure for
Environmental Cases27 finds relevance in the present controversy. Stressing the fact
that the "over-all safety guarantee of the bt talong" remains unknown, the appellate
court cited the testimony of Dr. Cariño who admitted that the product is not yet safe for
consumption because a safety assessment is still to be done. Again, the Decision
quoted from Dr. Malayang who testified that the question of Bt talong's safety demands
maximum precaution and utmost prudence, bearing in mind the country's rich
biodiversity. Amid the uncertainties surrounding the Bt talong, the CA thus upheld the
primacy of the people's constitutional right to health and a balanced ecology.

Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and
UPLBFI, the CA in its Resolution dated September 20, 2013 rejected the argument of
UPLB that the appellate court's ruling violated UPLB's constitutional right to academic
freedom. The appellate court pointed out that the writ of kalikasan originally issued by
this Court did not stop research on Bt talong but only the particular procedure adopted
in doing field trials and only at this time when there is yet no law in the form of a
congressional enactment for ensuring its safety and levels of acceptable risks when
introduced into the open environment. Since the writ stops the field trials of Bt
talong as a procedure but does not stop Bt talong research, there is no assault on
academic freedom.

The CA then justified its ruling by expounding on the theory that introducing a
genetically modified plant into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a
universe of biotic (living) and non-biotic things interacting as a living community in a
particular space and time. In the ecosystem are found specific and particular biotic and
non-biotic entities which depend on each other for the biotic entities to survive and
maintain life. A critical element for biotic entities to maintain life would be that their
populations are in a proper and natural proportion to others so that, in the given limits
of available non-biotic entities in the ecosystem, no one population overwhelms
another. In the case of the Philippines, it is considered as one of the richest countries in
terms of biodiversity. It has so many plants and animals. It also has many kinds of
other living things than many countries in the world. We do not fully know how all these
living things or creatures interact among themselves. But, for sure, there is a perfect
and sound balance of our biodiversity as created or brought about by God out
of His infinite and absolute wisdom. In other words, every living creature has been
in existence or has come into being for a purpose. So, we humans are not supposed to
tamper with any one element in this swirl of interrelationships among living things in
our ecosystem. Now, introducing a genetically modified plant in our intricate
world of plants by humans certainly appears to be an ecologically imbalancing
act. The damage that it will cause may be irreparable and irreversible.

At this point, it is significant to note that during the hearing conducted by this Court on
November 20, 2012 wherein the testimonies of seven experts were given, Dr. Peter J.
Davies (Ph.D in Plant [Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and
Molecular Biology), Dr. Charito Medina (Ph.D in Environmental Biology), Dr. Reginaldo
Ebora (Ph.D in Entomology), Dr. Flerida Cariño (Ph.D in Insecticide Toxicology), Dr. Ben
Malayang (Ph.D in Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in
Genetics) were in unison in admitting that bt talong is an altered plant. x x x

xxxx

Thus, it is evident and clear that bt talong is a technology involving the deliberate
alteration of an otherwise natural state of affairs. It is designed and intended to alter
natural feed-feeder relationships of the eggplant. It is a deliberate genetic
reconstruction of the eggplant to alter its natural order which is meant to eliminate one
feeder (the borer) in order to give undue advantage to another feeder (the humans).
The genetic transformation is one designed to make bt talong toxic to its pests (the
targeted organisms). In effect, bt talong kills its targeted organisms. Consequently, the
testing or introduction of bt talong into the Philippines, by its nature and
intent, is a grave and present danger to (and an assault on) the Filipinos'
constitutional right to a balanced ecology because, in any book and by any
yardstick, it is an ecologically imbalancing event or phenomenon. It is a willful and
deliberate tampering of a naturally ordained feed-feeder relationship in our
environment. It destroys the balance of our biodiversity. Because it violates the
conjunct right of our people to a balanced ecology, the whole constitutional right of our
people (as legally and logically construed) is violated.

Of course, the bt talong's threat to the human health of the Filipinos as of now remains
uncertain. This is because while, on one hand, no Filipinos has ever eaten it yet, and so,
there is no factual evidence of it actually causing acute or chronic harm to any or a
number of ostensibly identifiable perms, on the other hand, there is correspondingly no
factual evidence either of it not causing harm to anyone. However, in a study published
on September 20, 2012 in "Food and Chemical Toxicology", a team of scientists led by
Professor Gilles-Eric Seralini from the University of Caen and backed by the France-
based Committee of Independent Research and Information on Genetic Engineering
came up with a finding that rats fed with Roundup-tolerant genetically modified corn for
two years developed cancers, tumors and multiple organ damage. The seven expert
witnesses who testified in this Court in the hearing conducted on November 20, 2012
were duly confronted with this finding and they were not able to convincingly rebut it.
That is why we, in deciding this case, applied the precautionary principle in granting the
petition filed in the case at bench.

Prescinding from the foregoing premises, therefore, because one conjunct right in the
whole Constitutional guarantee is factually and is undoubtedly at risk, and the other still
factually uncertain, the entire constitutional right of the Filipino people to a balanced
and healthful ecology is at risk. Hence, the issuance of the writ of kalikasan and the
continuing writ of mandamus is justified and warranted.28 (Additional Emphasis
supplied.)
Petitioners' Arguments

G.R. No. 209271

ISAAA advances the following arguments in support of its petition:

I

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION

FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
THE SAME IS ALREADY MOOT AND ACADEMIC.

II

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION

FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
THE SAME RAISES POLITICAL QUESTIONS.
 A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN
ACCEPTABLE DRAFT OF THE AMENDMENT OF THE NATIONAL BIO-SAFETY
FRAMEWORK OF THE PHILIPPINES, AND DA ADMINISTRATIVE ORDER NO.
08," AND IN PRAYING THAT THE COURT OF APPEALS "RECOMMEND TO
CONGRESS CURATIVE LEGISLATIONS," RESPONDENTS SEEK TO REVIEW
THE WISDOM OF THE PHILIPPINE REGULATORY SYSTEM FOR GMOS,
WHICH THE COURT OF APPEALS IS WITHOUT JURISDICTION TO DO SO.

B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS
GOVERNING THE STUDY, INTRODUCTION AND USE OF GMOS IN THE
PHILIPPINES AND COMPLETELY DISREGARDED E.O. NO. 514 AND DA- AO
08-2002.

III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION

FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
RESPONDENTS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.

IV

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION

FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
PRIMARY JURISDICTION OVER THE SAME LIES WITH THE REGULATORY AGENCIES.

THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE
INSTANT CASE WHEN IT RENDERED THE ASSAILED DECISION DATED 17 MAY 2013
AND RESOLUTION DATED 20 SEPTEMBER 2013.

VI

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN

FAVOR OF RESPONDENTS.

A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF

THE BT TALONG FIELD TRIALS COMPLIED WITH ALL ENVIRONMENTAL
LAWS, RULES AND REGULATIONS IN ORDER TO ENSURE THAT THE
PEOPLE'S RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY ARE
PROTECTED AND RESPECTED.

B. THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS

DO NOT CAUSE ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE
LIFE, HEALTH AND PROPERTY OF INHABITANTS OF TWO OR MORE
PROVINCES OR CITIES.

C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE

PRECAUTIONARY PRINCIPLE IN THIS CASE DESPITE THE FACT THAT
 RESPONDENTS FAILED TO PRESENT AN IOTA OF EVIDENCE TO PROVE
THEIR CLAIM.

VII

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING

MANDAMUS AGAINST PETITIONER ISAAA.

VIII

THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20

SEPTEMBER 2013 IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC
PROGRESS.29 ChanRoblesVirtualawlibrary

G.R. No. 209276

Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG)
assails the CA Decision granting the petition for writ of kalikasan and writ of continuing
mandamus despite the failure of Greenpeace, et al. (respondents) to prove the
requisites for their issuance.

Petitioners contend that while respondents presented purported studies that supposedly
show signs of toxicity in genetically engineered eggplant and other crops, these studies
are insubstantial as they were not published in peer-reviewed scientific journals.
Respondents thus failed to present evidence to prove their claim that the Bt talong field
trials violated environmental laws and rules.

As to the application of the precautionary principle, petitioners asserted that its

application in this case is misplaced. The paper by Prof. Seralini which was relied upon
by the CA, was not formally offered in evidence. In volunteering the said article to the
parties, petitioners lament that the CA manifested its bias towards respondents'
position and did not even consider the testimony of Dr. Davies who stated that
"Seralini's work has been refuted by International committees of scientists"30 as shown
by published articles critical of Seralini's work.

Petitioners aver that there was no damage to human health since no Bt talong will be
ingested by any human being during the field trial stage. Besides, if the results of said
testing are adverse, petitioners will not allow the release of Bt talong to the
environment, in line with the guidelines set by EO 514. The CA thus misappreciated the
regulatory process as approval for field testing does not automatically mean approval
for propagation of the same product. And even assuming that the field trials may
indeed cause adverse environmental or health effects, the requirement of unlawful act
or omission on the part of petitioners or any of the proponents, was still absent.
Respondents clearly failed to prove there was any unlawful deviation from the
provisions of DAO 08-2002. The BPI's factual finding on the basis of risk assessment on
the Bt talong project should thus be accorded respect, if not finality by the courts.

Petitioners likewise fault the CA in giving such ambiguous and general directive for
them to protect, preserve, rehabilitate and restore the environment, lacking in specifics
which only indicates that there was really nothing to preserve, rehabilitate or restore as
there was nothing damaged or adversely affected in the first place. As to the supposed
inadequacy and ineffectiveness of existing regulations, these are all political questions
and policy issues best left to the discretion of the policy-makers, the Legislative and
Executive branches of government. Petitioners add that the CA treads on judicial
legislation when it recommended the re-examination of country's existing laws and
regulations governing studies and research on GMOs.

GR. No. 209301

Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence
necessary to prove actual or imminent injury to them or the environment as to render
the controversy ripe for judicial determination. It points out that nowhere in the
testimonies during the "hot-tub" presentation of expert witnesses did the witnesses for
respondents claim actual or imminent injury to them or to the environment as a result
of the Bt talong field tests, as they spoke only of injury in the speculative, imagined
kind without any factual basis. Further, the petition for writ of kalikasan has been
mooted by the termination of the field trials as of August 10, 2012.

Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by

reason of the nature, character, scale, duration, design, processes undertaken, risk
assessments and strategies employed, results heretofore recorded, scientific literature,
the safeguards and other precautionary measures undertaken and applied, the Bt
talong field tests did not or could not have violated the right of respondents to a
balanced and healthful ecology. The appellate court apparently misapprehended the
nature, character, design of the field trials as one for "consumption" rather than for
"field testing" as defined in DAO 08-2002, the sole purpose of which is for the "efficacy"
of the eggplant variety's resistance to the FSB.

Against the respondents' bare allegations, UPLBFI submits the following "specific facts
borne by competent evidence on record" (admitted exhibits)31:
118. Since the technology's inception 50 years ago, studies have shown that genetically
modified crops, including Bt talong, significantly reduce the use of pesticides by
farmers in growing eggplants, lessening pesticide poisoning to humans.
   
119. Pesticide use globally has decreased in the last [14-15] years owing to the use of insect-
resistant genetically modified crops. Moreover, that insect-resistant genetically modified
crops significantly reduce the use of pesticides in growing plants thus lessening
pesticide poisoning in humans, reducing pesticide load in the environment and
encouraging more biodiversity in farms.
   
120. Global warming is likewise reduced as more crops can be grown.
   
121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian
cotton industry by largely controlling Lepidopteran pests. To date, it had no significant
impact on the invertebrate community studied.
   
122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory
heteropterans and, therefore, cultivation of Bt cotton may provide an opportunity for
conservation of these predators in cotton ecosystems by reducing insecticide use.
   
123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not
negatively affect monarch butterflies.
   
124. The field trials will not cause "contamination" as feared by the petitioners because flight
distance of the pollinators is a deterrent to cross pollination. Studies reveal that there can
be no cross pollination more than a fifty (50) meter distance.
   
xxx  
x
   
135. There is a 50 year history of safe use and consumption of agricultural products sprayed
with commercial Bt microbial pesticides and a 14 year history of safe consumption of
food and feed derived from Bt crops.
   
xxx  
x
   
140. In separate reviews by the European Food Safety Agency (EFSA) and the Food
Standards Australia and New Zealand (FSANZ), the "work" of one Prof. Seralini relied
upon by [respondents] was dismissed as "scientifically flawed", thus providing no
plausible basis to the proposition that Bt talong is dangerous to public health.
   
141. In a learned treatise by James Clive entitled "Global Status of Commercialized
Biotech/GM Crops: 2011," the Philippines was cited to be the first country in the
ASEAN region to implement a regulatory system for transgenic crops (which includes
DAO 08-[2]002). Accordingly, the said regulatory system has also served as a model for
other countries in the region and other developing countries outside of Asia.
On the precautionary principle, UPLBFI contends that the CA misapplied it in this case.
The testimonial and documentary evidence of respondents, taken together, do not
amount to "scientifically plausible" evidence of threats of serious and irreversible
damage to the environment. In fact, since BPI started regulating GM crops in 2002,
they have monitored 171 field trials all over the Philippines and said agency has not
observed any adverse environmental effect caused by said field trials. Plainly,
respondents failed to show proof of "specific facts" of environmental damage of the
magnitude contemplated under the Rules of Procedure for Environmental Cases as to
warrant sanctions over the Bt talong field trials.

Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional
liberty of scientists and other academicians of UP, of which they have been deprived
without due process of law. Stressing that a possibility is not a fact, UPLBFI deplores
the CA decision's pronouncement of their guilt despite the preponderance of evidence
on the environmental safety of the field trials, as evident from its declaration that "the
over-all safety guarantee of Bt talong remains to be still unknown." It thus asks if in the
meantime, petitioners must bear the judicial stigma of being cast as violators of the
right of the people to a balanced and healthful ecology for an injury or
damage unsubstantiated by evidence of scientific plausibility.

G.R. No. 209430

Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was

conducted in the exercise of UPLB's academic freedom, which is a constitutional right.
In this case, there is nothing based on evidence on record or overwhelming public
welfare concern, such as the right of the people to a balanced and healthful ecology,
which would warrant restraint on UPLB's exercise of academic freedom. Considering
that UPLB complied with all laws, rules and regulations regarding the application and
conduct of field testing of GM eggplant, and was performing such field tests within the
prescribed limits of DAO 08-2002, and there being no harm to the environment or
prejudice that will be caused to the life, health or property of inhabitants in two or more
cities or provinces, to restrain it from performing the said field testing is unjustified.

Petitioner likewise objects to the CA's application of the precautionary principle in this
case, in violation of the standards set by the Rules of Procedure for Environmental
Cases. It points out that the Bt eggplants are not yet intended to be introduced into the
Philippine ecosystem nor to the local market for human consumption.

Cited were the testimonies of two expert witnesses presented before the CA: Dr.
Navasero who is an entomologist and expert in integrated pest management and insect
taxonomy, and Dr. Davies, a member of the faculty of the Department of Plant Biology
and Horticulture at Cornell University for 43 years and served as a senior science
advisor in agricultural technology to the United States Department of State. Both had
testified that based on generally accepted and scientific methodology, the field trial
of Bt crops do not cause damage to the environment or human health.

Petitioner assails the CA in relying instead on the conjectural statements of Dr.

Malayang. It asserts that the CA could not support its Decision and Resolution on the
pure conjectures and imagination of one witness. Basic is the rule that a decision must
be supported by evidence on record.

Respondents' Consolidated Comment

Respondents aver that Bt talong became the subject of public protest in our country
precisely because of the serious safety concerns on the impact of Bt talong toxin on
human and animal health and the environment through field trial contamination. They
point out that the inherent and potential risks and adverse effects of GM crops are
recognized in the Cartagena Protocol and our biosafety regulations (EO 514 and DAO
08-2002). Contamination may occur through pollination, ingestion by insects and other
animals, water and soil run off, human error, mechanical accident and even by stealing
was inevitable in growing Bt talong in an open environment for field trial. Such
contamination may manifest even after many years and in places very far away from
the trial sites.

Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful
omission, respondents assert that, in the face of scientific uncertainties on the safety
and effects of Bt talong, petitioners omitted their crucial duties to conduct
environmental impact assessment (EIA); evaluate health impacts; get the free, prior
and informed consent of the people in the host communities; and provide remedial and
liability processes in the approval of the biosafety permit and conduct of the field trials
in its five sites located in five provinces. These omissions have put the people and the
environment at serious and irreversible risks.

Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic

Crops/Foods: A Compilation of Scientific References with Abstracts" printed by Coalition
for a GMO-Free India; a study on Bt corn in the Philippines, "Socio-economic Impacts of
Genetically Modified Corn in the Philippines" published by MASIPAG in 2013; and the
published report of the investigation conducted by Greenpeace, "White Corn in the
Philippines: Contaminated with Genetically Modified Corn Varieties" which revealed
positive results for samples purchased from different stores in Sultan Kudarat,
Mindanao, indicating that they were contaminated with GM corn varieties, specifically
the herbicide tolerant and Bt insect resistant genes from Monsanto, the world's largest
biotech company based in the US.

To demonstrate the health hazards posed by Bt crops, respondents cite the following
sources: the studies of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla,
and RI Vazquez-Padron, all from the Universidad Nacional Autonoma de Mexico; the
conclusion made by Prof. Eric-Gilles Seralini of the University of Caen, France, who is
also the president of the Scientific Council of the Committee for Independent Research
and Information on Genetic Engineering (CRIIGEN), in his review, commissioned by
Greenpeace, of Mahyco's data submitted in support of the application to grow and
market Bt eggplant in India; and the medical interpretations of Prof. Seralini's findings
by Filipino doctors Dr. Romeo Quijano of the University of the Philippines-Philippine
General Hospital and Dr. Wency Kiat, Jr. of St. Luke's Medical Center (Joint Affidavit).

According to respondents, the above findings and interpretations on serious health risks
are strengthened by the findings of a review of the safety claims in the MAHYCO
Dossier authored by Prof. David A. Andow of the University of Minnesota, an expert in
environmental assessment in crop science. The review was made upon the request in
2010 of His Honorable Shri Jairam Ramesh of the Ministry of Environment and Forests
of India, where MAHYCO is based. MAHYCO is the corporate creator and patent owner
of the Bt gene inserted in Bt talong.

The conclusions of health hazards from the above studies were summarized32 by
respondents, as follows:
Studies/interpretation by Conclusion/interpretation
Drs. L. Moreno-Fierros, N. Garcia, For Bt modified crops (like Bt talong), there is concern
R. Gutierrez, R. over its potential
Lopez-Revilla, and RI Vazquez- allergenicity. CrylAcc (the gene inserted in Bt talong)
Padron protoxin is a potent immunogen (triggers immune
response); the protoxin is immunogenic by both the
intraperitoneal (injected) and intragastric (ingested)
route; the immune response to the protoxin is both
systemic and mucosal; and CrylAcc protoxin binds to
surface proteins in the mouse small intestine. These
suggest that extreme caution is required in the use
of CrylAcc in food crops.
Prof. Eric-Gilles Seralini His key findings showed statistical significant
differences between group of animals fed GM and non-
GM eggplant that raise food safety concerns and
warrant further investigation.
Dr. Romeo Quijano & Dr. Wency Interpreting Prof. Seralini's findings, the altered
Kiat, Jr. condition of rats symptomatically indicate hazards for
human health.
Prof. David A. Andow The MAHYCO dossier is inadequate to support the
needed environmental risk assessment; MAHYCO's
food safety assessment does not comply with
international standards; and that MAHYCO relied on
dubious scientific assumptions and disregarded real
environmental threats.
As to environmental effects, respondents said these include the potential for living
modified organisms, such as Bt talong tested in the field or released into the
environment, to contaminate non-GM traditional varieties and other wild eggplant
relatives and turn them into novel pests, outcompete and replace their wild relatives,
increase dependence on pesticides, or spread their introduced genes to weedy relatives,
potentially creating superweeds, and kill beneficial insects.

Respondents then gave the following tabulated summary33 of field trial contamination

cases drawn from various news reports and some scientific literature submitted to the
court:
What happened Impact How did it occur
During 2006 and 2007, traces of In July 2011, Bayer eventually Field trials were
three varieties of unapproved agreed to a $750m US dollar conducted between the
genetically modified rice owned settlement resolving claims with mid-1990s and early
by Bayer Crop Science were about 11,000 US farmers for 2000s. The US
found in US rice exports in over market losses and clean-up costs. Department of
30 countries worldwide. Agriculture (USDA)
The total costs to the rice industry reported these field trials
are likely to have been over $1bn were the likely sources
 worldwide. of the contamination
between the modified
rice and conventional
varieties. However, it
was unable to conclude
[if it] was caused by
gene flow (cross
pollination) or
mechanical mixing.
In 2009, unauthorised Canada lost exports to its main In the late 1980s a
GElinseed (also known as 'flax') European market worth hundreds public research
produced by a public research of millions of dollars and non- institution, the Crop
institution was discovered in GElinseed farmers have faced Development Centre in
food in several EU countries, huge costs and market losses. Saskatoon, Saskat-
having been imported from chewan, developed a
Canada. GElinseed variety FP96
—believed to be the
origin of the
contamination.
During 2004, the Thai Exports of papaya to Europe have GEpapaya is not grown
government found that papaya been hit because of fears that commercially in
samples from 85 farms were contamination could have spread. Thailand, so it was clear
genetically modified. The The Thai government said it was that the contamination
contamination continued into taking action to destroy the originated from the
2006 and it is likely that the GE contaminated trees. government station
contamination reached the food experimentally breeding
chain. GE papaya trees. Tests
that showed that one
third of papaya orchards
tested in the eastern
province of Rayong and
the north-eastern
provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GE-
contaminated papaya
seeds in July 2005. The
owners said that a
research station gave
them the seeds.
In the US in 2002, seeds from a Prodigene, the company Seeds from the GEmaize
GEmaize pharma-crop responsible, was fined $3m for crop sprouted
containing a pig vaccine grew tainting half a million bushels of voluntarily in the
independently among normal soya bean with a trial vaccine used following season.
soybean crops. to prevent stomach upsets in
piglets. Prodigene agreed to pay a
fine of $250,000 and to repay the
government for the cost of
incinerating the soya bean that had
been contaminated with
genetically altered corn.
In 2005, Greenpeace discovered The European Commission The source of the
that GE rice seeds had been adopted emergency measures (on contamination appears
illegally sold in Hubei, China. 15 August 2008) to require to have been the result
Then, in 2006, GE rice event compulsory certification for the of illegal planting of
Bt63 was found in baby food imports of Chinese rice products GEseeds. Seed
sold in Beijing, Guangzhou and that could contain the companies in China
Hong Kong. In late 2006, GE unauthorised GE rice Bt63. found to have sold
rice Bt63 was found to be GErice hybrid seed to
contaminating exports in The Chinese government took farmers operated
Austria, France, the UK and several measures to try to stop the directly under the
Germany. In 2007 it was again contamination, which included university developing
found in EU imports to Cyprus, punishing seed companies, GM rice. It has been
Germany, Greece, Italy and confiscating GEseed, destroying reported that the key
Sweden. GErice grown in the field and scientist sat on the board
tightening control over the food of one GEseed
chain. company.

 
In 2005, the European The European Commission The contamination arose
Commission announced that blocked US grain import unless because Syngenta's
illegal Bt10 GEmaize produced they could be guaranteed free of quality control
by GEseed company Syngenta Bt10. The USDA fined Syngenta procedures did not
had entered the European food $375,000. There are no figures for differentiate between
chain. The GEmaize Bt10 the wider costs. Bt10 and its sister
contains a marker gene that commercial line, Bt11.
codes for the widely-used As a result, the
antibiotic ampicillin, while the experimental and
Bt11 does not. According to the substantially different
international Codex Bt10 line was
Alimentarius Guideline for mistakenly used in
Conduct of Food Safety breeding. The error was
Assessment of Foods Derived detected four years later
from Recombinant-DNA:Plants: when one of the seed
'Antibiotic resistance genes used companies developing
in food production that encode Bt11 varieties adopted
resistance to clinically used more sophisticated
antibiotics should not be present analytical techniques.
in foods' because it increases the
risk of antibiotic resistance in
the population.
Refuting the claim of petitioners that contamination is nil or minimal because the scale
of Bt talong field trial is isolated, restricted and that "each experiment per site per
season consists of a maximum net area planted to Bt eggplant of between 480 sq.
meters to 1,080 sq. meters,"34 respondents emphasize that as shown by the above,
contamination knows no size and boundaries in an open environment.

With regard to the required geographical coverage of environmental damage for the
issuance of writ of kalikasan, respondents assert that while the Bt talong field trials
were conducted in only five provinces, the environmental damage prejudicial to health
extends beyond the health of the present generation of inhabitants in those provinces.

On petitioners' insistence in demanding that those who allege injury must prove injury,
respondents said that biosafety evidence could not be readily contained in a corpus
delicti to be presented in court. Indeed, the inherent and potential risks and adverse
effects brought by GMOs are not like dead bodies or wounds that are immediately and
physically identifiable to an eyewitness and which are resulting from a common crime.
Precisely, this is why the Cartagena Protocol's foundation is on the precautionary
principle and development of sound science and its links, to social and human rights law
through its elements of public awareness, public participation and public right to know.
This is also why the case was brought under the Rules of Procedure for Environmental
Cases and not under ordinary or other rules, on the grounds of violation of the rights of
the Filipino people to health, to a balanced and healthful ecology, to information on
matters of national concern, and to participation. The said Rules specifically provides
that the appreciation of evidence in a case like this must be guided by the
precautionary principle.

As to the non-exhaustion of administrative remedies being raised by petitioners as

ground to dismiss the present petition, respondents said that nowhere in the 22
sections of DAO 08-2002 that one can find a remedy to appeal the decision of the DA
issuing the field testing permit. What is only provided for is a mechanism for applicants
of a permit, not stakeholders like farmers, traders and consumers to appeal a decision
by the BPI-DA in case of denial of their application for field testing. Moreover, DAO 08-
2002 is silent on appeal after the issuance of the biosafety permit.

Finally, on the propriety of the writ of continuing mandamus, respondents argue that
EO 514 explicitly states that the application of biosafety regulations shall be made in
accordance with existing laws and the guidelines therein provided. Hence, aside from
risk assessment requirement of the biosafety regulations, pursuant to the PEISS law
and Sections 12 and 13 of the Philippine Fisheries Code of 1998, an environmental
impact statement (EIS) is required and an environmental compliance certificate (ECC)
is necessary before such Bt crop field trials can be conducted.

Petitioners' Replies

G.R. No. 209271

ISAAA contends that the Precautionary Principle and the Rules of Procedure for
Environmental Cases do not empower courts to adjudicate a controversy that is moot
and academic. It points out that respondents failed to satisfy all the requirements of the
exception to the rule on actual controversies. The Biosafety Permit is valid for only two
years, while the purported stages in the commercialization, propagation and
registration of Bt talong still cannot confer jurisdiction on the CA to decide a moot and
academic case.

As to the propriety of the writ of continuing mandamus, ISAAA maintains that public
petitioners do not have "mandatory" and "ministerial" duty to re-examine and reform
the biosafety regulatory system, and to propose curative legislation. The law (EO 514)
cited by respondents does not impose such duty on public petitioners. As for the
Cartagena Protocol, it laid down a procedure for the evaluation of the Protocol itself, not
of the Philippine biosafety regulatory system. ISAAA stresses that the CA is without
jurisdiction to review the soundness and wisdom of existing laws, policy and
regulations. Indeed, the questions posed by the respondents are political questions,
which must be resolved by the executive and legislative departments in deference to
separation of powers.

On the availability of administrative remedies, ISAAA asserts that respondents are

mistaken in saying that these are limited to appeals. The concerned public may invoke
Section 8 (G) of DAO 08-2002 which grants them the right to submit their written
comments on the BPI regarding the field testing permits, or Section 8 (P) for the
revocation and cancellation of a field testing permit. Respondents' failure to resort to
the internal mechanisms provided in DAO 08-2002 violates the rule on exhaustion of
administrative remedies, which warrants the dismissal of respondents' petition.

ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving
authority for field testing permits, while under Title IV, Chapter 4, Section 19 of
the Administrative Code of 1987, the DA through the BPI, is responsible for the
production of improved planting materials and protection of agricultural crops from
pests and diseases. In bypassing the administrative remedies available, respondents
not only failed to exhaust a less costly and speedier remedy, it also deprived the parties
of an opportunity to be heard by the BPI which has primary jurisdiction and
knowledgeable on the issues they sought to raise.

Rejecting the scientific data presented by the respondents, petitioners found Annex "A"
of the Consolidated Comment as irrelevant because it was not formally offered in
evidence and are hearsay. Majority of those records contain incomplete information and
none of them pertain to the Bt talong. Respondents likewise presented two misleading
scientific studies which have already been discredited: the 2013 study by B.P.
Mezzomo, et al. and the study by Prof. Seralini in 2012. Petitioner notes that both
articles have been withdrawn from publication.

ISAAA further describes Annex "A" as a mere compilation of records of flawed studies
with only 126 usable records out of the 338 records. In contrast, petitioner cites the
work of Nicolia, A., A. Manzo, F. Veronesi, and D. Rosellini, entitled "An overview of the
last 10 years of genetically engineered crop safety research." The authors evaluated
1,783 scientific records of GE crop safety research papers, reviews, relevant opinions
and scientific reports from 2002-2012. Their findings concluded that "the scientific
research conducted so far has not detected any significant hazards directly connected
with the use of GE crops." In the article "Impacts of GM crops on biodiversity," in which
scientific findings concluded that "[o]verall, x x x currently commercialized GM crops
have reduced the impacts of agriculture on biodiversity, through enhanced adoption of
conservation tillage practices, reduction of insecticide use and use of more
environmentally benign herbicides and increasing yields to alleviate pressure to convert
additional land into agricultural use."

Debunking the supposed inherent risks and potential dangers of GMOs, petitioner
cites EUR 24473-A decade of EU-funded GMO research (2001-2010), concluded from
more than 130 research projects, covering a period of 25 years of research, and
involving more than 500 independent research groups, that "biotechnology, and in
particular GMOs, are not per se more risky than e.g. conventional plant breeding
technologies." Another article cited is "Assessment of the health impact of GM plant
diets in long-term and multigenerational animal feeding trials: A literature review"
which states that scientific findings show that GM crops do not suggest any health
hazard, and are nutritionally equivalent to their non-GM counterparts and can be safely
used in food and feed.

Addressing the studies relied upon by respondents on the alleged adverse

environmental effects of GM crops, petitioner cites the article "Ecological Impacts of
Genetically Modified Crops: Ten Years of Field Research and Commercial Cultivation"
which concluded that "[T]he data available so far provide no scientific evidence that the
cultivation of the presently commercialized GM crops has caused environmental harm."
A related article, "A Meta-Analysis of Effects of Bt Cotton and Maize on Non-target
Invertebrates" states that scientific findings show that non-target insects are more
abundant in GM crop fields like Bt cotton and Bt maize fields than in non-GM crops that
are sprayed with insecticides.

The two tables/summaries of studies submitted by respondents are likewise rejected by

ISAAA, which presented the following comments and criticisms on each of the
paper/article cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be
rejected considering that this was not formally offered as evidence by respondents.
Hence, the same may not be considered by the Honorable Court. (Section 34, Rule 132
of the Rules of Court; Heirs of Pedro Pasag v. Spouses Parocha, supra)

Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study
was from engineered E. coli and may have been contaminated by endotoxin.
The CrylAcc used in the study was not from Bt talong. Hence, respondents' attempt to
extrapolate the interpretation and conclusion of this study to Bt talong is grossly
erroneous and calculated to mislead and deceive the Honorable Court.

Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by
L. Moreno-Fierros, et al., which was published in an article entitled A Review of the
Food Safety of Bt Crops, the authors reported that Adel-Patient, et al. tried and failed to
reproduce the results obtained by the study made by L. Moreno-Fierros, et al. The
reason is because of endotoxin contamination in the preparation of the CrylAc protein.
Further, when purified Cry protein was injected to mice through intra-gastric
administration, there was no impact on the immune response of the mice.
In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to
assessing potential health risks from human consumption of foods derived
from Bt crops can be questioned because the doses tested in mice is irrelevant to
human dietary exposure, i.e., the doses given were "far in excess of potential human
intakes".

With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not
entitled to any weight and consideration because his sworn statement was not admitted
in evidence by the Court of Appeals.

Further, Seralini's findings are seriously flawed. Food safety experts explained the
differences observed by Seralini's statistical analysis as examples of random biological
variation that occurs when many measurements are made on test animals, and which
have no biological significance. Hence, there are no food safety concerns. Further,
petitioner ISAAA presented in evidence the findings of regulatory bodies, particularly
the EFSA and the FSANZ, to controvert Seralini's findings. The EFSA and the FSANZ
rejected Seralini's findings because the same were based on questionable statistical
procedure employed in maize in 2007.

In addition, it must be pointed out that the Indian regulatory authority, GEAC,
has not revised its earlier decision approving the safety of Bt eggplant notwithstanding
the findings of Seralini's assessment. In effect, Seralini's findings and interpretation
were rejected by the Indian regulatory agency.

With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the
same is not entitled to any weight and consideration because the Court of Appeals did
not admit their sworn statement. Further, Drs. Romeo Quijano and Wency Kiat sought
to interpret a seriously flawed study, making their sworn statements equally flawed.

In an attempt to mislead the Honorable Court, respondents tried to pass off the review
of Prof. David A. Andow as the work of the National Academy of Sciences of the USA.
Such claim is grossly misleading. In truth, as Prof. David A. Andow indicated in the
preface, the report was produced upon the request of Aruna Rodriguez, a known anti-
GM campaigner.

Further, Prof. David A. Andow's review did not point to any negative impact to the
environment of Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period
of conduct of field trials all over the country. He concluded, however, that the dossier is
inadequate for ERA. This is perplexing considering this is the same gene that has been
used in Bt cotton since 1996. Scores of environmental and food safety risk assessment
studies have been conducted and there is wealth of information and experience on its
safety. Various meta-analyses indicate that delaying the use of this already effective Bt
brinjal for managing this devastating pest only ensures the continued use of frequent
insecticide sprays with proven harm to human and animal health and the environment
and loss of potential income of resource-poor small farmers.

Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating

that the Indian regulatory body, GEAC, has not revised its earlier decision approving
the safety of Bt eggplant based on the recommendation of two expert committees
which found the Mahyco regulatory dossier compliant to the ERA stipulated by the
Indian regulatory body. In effect, like Seralini, Andow's findings and interpretation were
also rejected by the Indian regulatory agency.35 ChanRoblesVirtualawlibrary

Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and
the rigid requirements under Section 8 of DAO 08-2002 already takes into consideration
any and all significant risks not only to the environment but also to human health. The
requirements under Sections 26 and 27 of the Local Government Code are also
inapplicable because the field testing is not among the six environmentally sensitive
activities mentioned therein; the public consultations and prior local government unit
(LGU) approval, were nevertheless complied with. Moreover, the field testing is an
exercise of academic freedom protected by the Constitution, the possibility of Bt
talong's commercialization in the future is but incidental to, and fruit of the experiment.

As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that

these are inadmissible, hearsay and unreliable. These were not formally offered in
evidence; self-serving as it was conducted by respondents Greenpeace and MASIPAG
themselves; the persons who prepared the same were not presented in court to identify
and testify on its findings; and the methods used in the investigation and research were
not scientific. Said studies failed to establish any correlation between Bt corn and the
purported environmental and health problems.

G.R. No. 209276

EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated
comment, for the same reasons given by ISAAA. They noted that the affidavit of Prof.
Seralini, and the joint affidavit of Dr. Kiat and Dr. Quijano were denied admission by
the CA. Given the failure of the respondents to present scientific evidence to prove the
claim of environmental and health damages, respondents are not entitled to the writ
of kalikasan.

Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made
sure that the latter complied with all the requirements under DAO 08-2002, including
the conduct of risk assessment. The applications for field testing of Bt talong thus
underwent the following procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI
several applications for issuance of Biosafety Permits to conduct multi-locational field
testing of Bt talong. Even before the proponent submitted its application, petitioner BPI
conducted a consultative meeting with the proponent to enlighten the latter about the
requirements set out by DA AO No. 8.

Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of

Section 8 of DA AO No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant
information as required in Section 8 (A) (1) of DA AO No. 08.

Second. The applications were accompanied by a (i) Certification from the NCBP that
the regulated article has undergone satisfactory testing under contained conditions in
the Philippines, (ii) technical dossier consisting of scientific literature and other scientific
materials relied upon by the applicant showing that Bt talong will not pose any
significant risks to human health and the environment, and (iii) copy of the proposed
PIS for Field Testing as prescribed by Section 8 (A) (2) of DA AO No. 08; and
Third. The applications contained the Endorsement of proposal for field testing, duly
approved by the majority of all the members of the respective Institutional Biosafety
Committees (IBC), including at least one community representative, as required by
Section 8 (E) of DA AO No. 08.

a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial
evaluation of the risk assessment and risk management strategies of the applicant for
field testing using the NCBP guidelines. The IBC shall determine if the data
obtained under contained conditions provide sufficient basis to authorize the
field testing of the regulated article. In making the determination, the IBC shall
ensure that field testing does not pose any significant risks to human health
and the environment. The IBC may, in its discretion, require the proponent to
perform additional experiments under contained conditions before acting on the field
testing proposal. The IBC shall either endorse the field testing proposal to the BPI or
reject it for failing the scientific risk assessment.

b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which
requires an applicant for field testing to establish an IBC in preparation for the field
testing of a regulated article and whose membership has been approved by the BPI.
Section 1 (L) of DA AO No. 08, requires that the IBC shall be composed of at least five
(5) members, three (3) of whom shall be designated as "scientist-members" who shall
possess scientific and technological knowledge and expertise sufficient to enable them
to evaluate and monitor properly any work of the applicant relating to the field testing
of a regulated article, and the other members are designated as "community
representatives" who are in a position to represent the interest of the communities
where the field testing is to be conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to
Section 8 (F) of DA AO No. 08, forwarded the complete documents to three (3)
independent Scientific Technical Review Panel (STRP) members. Pending receipt of the
risk assessment reports of the three STRP members, petitioner BPI conducted its own
risk assessment.

Thereafter, on separate occasions, petitioner BPI received the final risk assessment
reports of the three STRP members recommending the grant of Biosafety Permits to
UPLB after a thorough risk assessment and evaluation of UPLB's application for field
trial of Bt talong.

Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field
Testing in each concerned barangays and city/municipal halls of the localities having
jurisdiction over its proposed field trial sites.

In addition to the posting of the PISs for Field Testing, petitioner BPI conducted

consultative meetings and public seminars in order to provide public information and in
order to give an opportunity to the public to raise their questions and/or concerns
regarding the Bt talong field trials.36
ChanRoblesVirtualawlibrary

Petitioners maintain that Sections 26 and 27 of the Local Government Code are

inapplicable to the Bt talong field testing considering that its subject matter is not mass
production for human consumption. The project entails only the planting of Bt eggplants
and cultivation in a controlled environment; indeed, the conduct of a field trial is not a
guarantee that the Bt talong will be commercialized and allowed for cultivation in the
Philippines.

On the non-exhaustion of administrative remedies by the respondents, petitioners note

that during the period of public consultation under DAO 08-2002, it is BPI which
processes written comments on the application for field testing of a regulated article,
and has the authority to approve or disapprove the application. Also, under Section 8
(P), BPI may revoke a biosafety permit issued on the ground of, among others, receipt
of new information that the field testing poses significant risks to human health and the
environment. Petitioners assert they were never remiss in the performance of their
mandated functions, as shown by their immediate action with respect to the defective
certification of posting of PIS in Kabacan, North Cotabato. Upon receiving the letter-
complaint on January 24, 2012, BPI readily ordered their re-posting. The same incident
occurred in Davao City, where BPI refused to lift the suspension of biosafety permits
until "rectification of the conditions for public consultation is carried out."

To underscore respondents' blatant disregard of the administrative process, petitioners

refer to documented instances when respondents took the law in their own hands.
Greenpeace barged into one of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay,
Laguna, forcibly entered the entrance gate through the use of a bolt cutter, and then
proceeded to uproot the experimental crops without permission from BPI or the project
proponents. Petitioners submit that the non-observance of the doctrine of exhaustion of
administrative remedies results in lack of cause of action, one of the grounds under
the Rules of Court justifying the dismissal of a complaint.

Petitions-in-Intervention

Crop Life Philippines, Inc. (Crop Life)

Crop Life is an association of companies which belongs to a global (Crop Life

International) as well as regional (Crop Life Asia) networks of member-companies
representing the plant science industry. It aims to "help improve the productivity of
Filipino farmers and contribute to Philippine food security in a sustainable way." It
supports "innovation, research and development in agriculture through the use of
biology, chemistry, biotechnology, plant breeding, other techniques and disciplines."

On procedural grounds, Crop Life assails the CA in rendering judgment in violation of

petitioners' right to due process because it was prevented from cross-examining the
respondents' expert witnesses and conducting re-direct examination of petitioners' own
witnesses, and being an evidently partial and prejudiced court. It said the petition for
writ of kalikasan should have been dismissed outright as it effectively asks the Court to
engage in "judicial legislation" to "cure" what respondents feel is an inadequate
regulatory framework for field testing of GMOs in the Philippines. Respondents also
violated the doctrine of exhaustion of administrative remedies, and their petition is
barred by estoppel and laches.

Crop Life concurs with the petitioners in arguing that respondents failed to specifically
allege and prove the particular environmental damage resulting from the Bt talong field
testing. It cites the scientific evidence on record and the internationally accepted
scientific standards on GMOs and GMO field testing, and considering the experience of
various countries engaged in testing GMOs, telling us that GMO field testing will not
damage the environment nor harm human health and more likely bring about beneficial
improvements.

Crop Life likewise assails the application of the Precautionary Principle by the CA which
erroneously equated field testing of Bt talong with Bt talong itself; failed to recognize
that in this case, there was no particular environmental damage identified, much less
proven; relied upon the article of Prof. Seralini that was retracted by the scientific
journal which published it; there is no scientific uncertainty on the adverse effects of
GMOs to environment and human health; and did not consider respondents' failure to
prove the insufficiency of the regulatory framework under DAO 08-2002.

On policy grounds, Crop Life argues that requiring all organisms/plants to be considered
absolutely safe before any field testing may be allowed, would result in permanently
placing the Philippines in the shadows of more developed nations (whose economies
rest on emerging markets importing products from them). It points out that the testing
of Bt talong specifically addresses defined problems such as the need to curb the
misuse of chemical pesticides.

Biotechnology Coalition of the Philippines (BCP)

BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral

coalition of advocates of modern biotechnology in the Philippines.

Reversal of the CA ruling is sought on the following grounds:

I.

THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF

THE KALIKASAN PETITION IN THE ABSENCE OF ANY JUSTICIABLE CONTROVERSY.

II.

EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE

THE PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.

III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE

PRECAUTIONARY PRINCIPLE.

IV.

THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY

PRINCIPLE, IF SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS
ANTI-PROGRESS, ANTI-TECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE
FILIPINO PEOPLE.37 ChanRoblesVirtualawlibrary

BCP argued that in the guise of taking on a supposed justiciable controversy, despite
the Bt talong field trials having been terminated, the CA entertained a prohibited
collateral attack on the sufficiency of DAO 08-2002. Though not invalidating the
issuance, which the CA knew was highly improper, it nonetheless granted the petition
for writ of kalikasan on the theory that "mere biosafety regulations" were insufficient to
guarantee the safety of the environment and the health of the people.

Also reiterated were those grounds for dismissal already raised by the petitioners:
failure to exhaust administrative remedies and finality of findings of administrative
agencies.

BCP further asserts that the application of a stringent "risk assessment" process to

regulated articles prior to any release in the environment for field testing mandated by
AO No. 8 sufficiently complies with the rationale behind the development of the
precautionary principle. By implementing the stringent provisions of DAO 08-2002, in
conjunction with the standards set by EO 514 and the NBF, the government
preemptively intervenes and takes precautionary measures prior to the release of any
potentially harmful substance or article into the environment. Thus, any potential
damage to the environment is prevented or negated. Moreover, international
instruments ratified and formally adopted by the Philippines (CBD and the Cartagena
Protocol) provide additional support in the proper application of the precautionary
principle in relation to GMOs and the environment.

On the "misapplication" by the CA of the precautionary principle, BCP explains that the
basic premise for its application is the existence of threat of harm or damage to the
environment, which must be backed by a reasonable scientific basis and not based on
mere hypothetical allegation, before the burden of proof is shifted to the public
respondents in a petition for writ of kalikasan. Here, the CA relied heavily on its
observation that "... field trials of bt talong could not be declared ... as safe to human
health and to ecology, with full scientific certainty, being an alteration of an otherwise
natural state of affairs in our ecology" and "introducing a genetically modified plant in
our intricate world of plants by humans certainly appears to be an ecologically
imbalancing act," among others. BCP finds that this pronouncement of the CA
constitutes an indictment not only against Bt talong but against all GMOs as well. The
appellate court's opinion is thus highly speculative, sweeping and laced with obvious
bias.

There being no credible showing in the record that the conduct of Bt talong field trials
entails real threats and that these threats pertain to serious and irreversible damage to
the environment, BCP maintains that the precautionary principle finds no application in
this case. While Rule 20 of the Rules of Procedure for Environmental Cases states that
"[w]hen there is a 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 before it," the CA failed to note that the element of lack
of full scientific certainty pertains merely to the causal link between human activity and
environmental effect, and not the existence or risk of environmental effect.

BCP laments that sustaining the CA's line of reasoning would produce a chilling effect
against technological advancements, especially those in agriculture. Affirming the CA
decision thus sets a dangerous precedent where any and all human activity may be
enjoined based on unfounded fears of possible damage to health or the environment.

Issues
From the foregoing submissions, the Court is presented with the following issues for
resolution:

1. Legal standing of respondents;

2. Mootness;

3. Violation of the doctrines of primary jurisdiction and exhaustion of

administrative remedies;

4. Application of the law on environmental impact statement/assessment on

projects involving the introduction and propagation of GMOs in the
country;

5. Evidence of damage or threat of damage to human health and the

environment in two or more provinces, as a result of the Bt talong field
trials;

6. Neglect or unlawful omission committed by the public respondents in

connection with the processing and evaluation of the applications for Bt
talong field testing; and

7. Application of the Precautionary Principle.

The Court's Ruling

Legal Standing

Locus standi is "a right of appearance in a court of justice on a given question."38 It

refers particularly to "a party's personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result" of the act being challenged, and "calls
for more than just a generalized grievance."39

However, the rule on standing is a matter of procedure which can be relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest.40 The Court thus
had invariably adopted a liberal policy on standing to allow ordinary citizens and civic
organizations to prosecute actions before this Court questioning the constitutionality or
validity of laws, acts, rulings or orders of various government agencies or
instrumentalities.41

Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in
public suits. In said case, we recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is
solemnly incorporated in the fundamental law." We held that such right need not be
written in the Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue
of transcendental importance with intergenerational implications. Such right carries with
it the correlative duty to refrain from impairing the environment.

Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own and
future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to
sue in behalf of the succeeding generations can only be based on the concept
of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the country's forest, mineral,
land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end
that their exploration, development and utilization be equitably accessible to the
present as well as future generations. Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment
of a balanced and healthful ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to
come.43 (Emphasis supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for
Environmental Cases which allows the filing of a citizen suit in environmental
cases.44 The provision on citizen suits in the Rules "collapses the traditional rule on
personal and direct interest, on the principle that humans are stewards of nature," and
aims to "further encourage the protection of the environment."45

There is therefore no dispute on the standing of respondents to file before this Court
their petition for writ of kalikasan and writ of continuing mandamus.

Mootness

It is argued that this case has been mooted by the termination of all field trials on
August 10, 2012. In fact, the validity of all Biosafety permits issued to UPLB expired in
June 2012.

An action is considered 'moot' when it no longer presents a justiciable controversy

because the issues involved have become academic or dead, or when the matter in
dispute has already been resolved and hence, one is not entitled to judicial intervention
unless the issue is likely to be raised again between the parties.46 Time and again,
courts have refrained from even expressing an opinion in a case where the issues have
become moot and academic, there being no more justiciable controversy to speak of,
so that a determination thereof would be of no practical use or value.47

Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a
grave violation of the Constitution; second, the exceptional character of the situation
and the paramount public interest is involved; third, when the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar and the
public; and fourth, the case is capable of repetition yet evading review.48 We find that
the presence of the second and fourth exceptions justified the CA in not dismissing the
case despite the termination of Bt talong field trials.

While it may be that the project proponents of Bt talong have terminated the subject
field trials, it is not certain if they have actually completed the field trial stage for the
purpose of data gathering. At any rate, it is on record that the proponents expect to
proceed to the next phase of the project, the preparation for commercial propagation of
the Bt eggplants. Biosafety permits will still be issued by the BPI for Bt talong or other
GM crops. Hence, not only does this case fall under the "capable of repetition yet
evading review" exception to the mootness principle, the human and environmental
health hazards posed by the introduction of a genetically modified plant, a very popular
staple vegetable among Filipinos, is an issue of paramount public interest.

Primary Jurisdiction and Exhaustion of Administrative Remedies

In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction

and exhaustion of administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he
should first avail of all the means afforded him by administrative processes. The issues
which administrative agencies are authorized to decide should not be summarily taken
from them and submitted to a court without first giving such administrative agency the
opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of

primary jurisdiction; that is, courts cannot or will not determine a controversy involving
a question which is within the jurisdiction of the administrative tribunal prior to the
resolution of that question by the administrative tribunal, where the question demands
the exercise of sound administrative discretion requiring the special knowledge,
experience and services of the administrative tribunal to determine technical and
intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary

doctrine of primary jurisdiction, which are based on sound public policy and practical
considerations, are not inflexible rules. There are many accepted exceptions, such
as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where
the challenged administrative act is patently illegal, amounting to lack of jurisdiction;
(c) where there is unreasonable delay or official inaction that will irretrievably prejudice
the complainant; (d) where the amount involved is relatively small so as to make the
rule impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is
urgent; (g) when its application may cause great and irreparable damage; (h) where
the controverted acts violate due process; (i) when the issue of non-exhaustion of
administrative remedies has been rendered moot; (j) when there is no other plain,
speedy and adequate remedy; (k) when strong public interest is involved; and, (1)
in quo warranto proceedings. x x x (Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by
BPI after public information sheets have been posted (Section 7[G]). Section 7(P) also
provides for revocation of field testing permit on certain grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of
the following grounds:
 1. Provision of false information in the Application to Field Test;

2. Violation of SPS or biosafety rules and regulations or of any conditions

specified in the permit;

3. Failure to allow the inspection of the field testing site;

4. Receipt by BPI of new information that the field testing of the regulated
article poses significant risks to human health and the environment;

5. Whether the regulated article was imported, misdeclaration of shipment;

or

6. Such other grounds as BPI may deem reasonable to prevent significant

risks to human health and the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases,

claiming serious health and environmental adverse effects of the Bt talong field trials
due to "inherent risks" associated with genetically modified crops and herbicides. They
sought the immediate issuance of a TEPO to enjoin the processing for field testing and
registering Bt talong as herbicidal product in the Philippines, stopping all pending field
trials of Bt talong anywhere in the country, and ordering the uprooting of planted Bt
talong in the field trial sites.

In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a
writ of continuing mandamus commanding the respondents to: (1) comply with the
requirement of environmental impact statement; (2) submit comprehensive risk
assessments, field test reports, regulatory compliance reports and other material
documents on Bt talong including issued certifications on public consultation with LGUs;
(3) work with other agencies to submit a draft amendment to biosafety regulations;
and (4) BPI, in coordination with relevant government agencies, conduct balanced
nationwide public information on the nature of Bt talong field trial, and a survey of its
social acceptability.

Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy
for the respondents "to determine the questions of unique national and local importance
raised here that pertain to laws and rules for environmental protection, thus [they
were] justified in coming to this Court."50 We take judicial notice of the fact that
genetically modified food is an intensely debated global issue, and despite the entry of
GMO crops (Bt corn) into the Philippines in the last decade, it is only now that such
controversy involving alleged damage or threat to human health and the environment
from GMOs has reached the courts.

Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or

animal to fulfill specific purposes. The basic strategy employed is to use the sexual
mechanism to reorganize the genomes of two individuals in a new genetic matrix, and
select for individuals in the progeny with the desirable combination of the parental
characteristics. Hybridization is the conventional way of creating variation. In animals,
mating is effected by introducing the desired sperm donor to the female at the right
time. In plants, pollen grains from the desired source are deposited on the stigma of a
receptive female plant. Pollination or mating is followed by fertilization and
subsequently development into an embryo. The effect of this action is the
reorganization of the genomes of two parents into a new genetic matrix to create new
individuals expressing traits from both parents. The ease of crossing of mating varies
from one species to another. However, conventional breeding technologies are limited
by their long duration, need for sexual compatibility, low selection efficiency, and
restricted gene pool.51

Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows

scientists to transfer genes from one organism to any other, circumventing the sexual
process. For example, a gene from a bacterium can be transferred to corn.
Consequently, DNA technology allowed scientists to treat all living things as belonging
to one giant breeding pool. Unlike other natural genome rearrangements
phenomena, rDNA introduces alien DNA sequences into the genome. Even though
crossing of two sexually compatible individuals produces recombinant progeny, the
term recombinant DNA is restricted to the product of the union of DNA segments of
different biological origins. The product of recombinant DNA manipulation is called
a transgenic organism. rDNA is the core technology of biotechnology.52

The organism that is created through genetic engineering is called a genetically

modified organism (GMO). Since the production of the first GMOs in the 1970s, genes
have been transferred between animal species, between plant species, and from animal
species to plant species. Some genes can make an animal or plant grow faster or
larger, or both. A gene produced by flounder (anti-freeze) was transplanted into salmon
so that salmon can be farmed in colder climates. Many species offish are genetically
engineered to speed growth, to alter flesh quality, and to increase cold and disease
resistance. In farm animals such as cattle, genes can be inserted to reduce the amount
of fat in meat, to increase milk production, and to increase superior cheese-making
proteins in milk. Biotechnology has also modified plants to produce its own pesticide,
resist common diseases or to tolerate weed-killing herbicide sprays.53

Despite these promising innovations, there has been a great deal of controversy over
bioengineered foods. Some scientists believe genetic engineering dangerously tampers
with the most fundamental natural components of life; that genetic engineering is
scientifically unsound; and that when scientists transfer genes into a new organism, the
results could be unexpected and dangerous. But no long-term studies have been done
to determine what effects GMO foods might have on human health.54

Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using
the latest molecular biology techniques. These plants are modified in the laboratory to
enhance desired traits such as increased resistance to herbicides or improved
nutritional content.55 Genetic modification of plants occurs in several stages:

1. An organism that has the desired characteristic is identified and the

specific gene producing this characteristic is located and the DNA is cut
off.
 2. The gene is then attached to a carrier in order to introduce the gene into
the cells of the plant to be modified. Mostly plasmid (piece of bacterial
DNA) acts as a carrier.

3. Along with the gene and carrier a 'promoter' is also added to ensure that
the gene works adequately when it is introduced into the plant.

4. The gene of interest together with carrier and promoter is then inserted
into bacterium, and is allowed to reproduce to create many copies of the
gene which are then transferred into the plant being modified.

5. The plants are examined to ensure that they have the desired physical
characteristic conferred by the new gene.

6. The genetically modified plants are bred with conventional plants of the
same variety to produce seed for further testing and possibly for future
commercial use. The entire process from the initial gene selection to
commercial production can take up to ten years or more.56

Benefits of GM Foods

The application of biotechnology in agricultural production promises to overcome the

major constraints being faced in farming such as insect pest infestation and diseases
which lead to substantial yield losses. Pest-resistant crops could substantially improve
yields in developing countries where pest damage is rampant and reduce the use of
chemical pesticides. Crop plants which have been genetically engineered to withstand
the application of powerful herbicides57 using genes from soil bacteria eliminates the
time-consuming and not cost-effective physical removal of weeds by tilling. The
herbicides to which the GM crops are tolerant are "broad spectrum" weedkillers, which
means they can be sprayed over the entire field, killing all plants apart from the GM
crop. Herbicide-tolerant crops include transgenes providing tolerance to the herbicides
(glyphosate or glufosinate ammonium). These herbicides kill nearly all kinds of plants
except those that have the tolerance gene. Another important benefit is that this class
of herbicides breaks down quickly in the soil, eliminating residue carryover problems
and reducing adverse environmental impacts.58

Some plants are genetically engineered to withstand cold climates such as GM

strawberries or soybeans, expressing the anti-freeze gene of arctic flounder, to protect
themselves against the damaging effects of the frost; and GM tobacco and potato with
anti-freeze gene from cold water fish. Crops could also be genetically modified to
produce micronutrients vital to the human diet such as the "golden rice" genetically
modified to produce beta-carotene, which can solve Vitamin A deficiency and prevent
night blindness in pre-school children. Other efforts to enhance nutritional content of
plants include the genetic modification of canola to enhance Vitamin E content or better
balance fatty acids, cereals for specific starch or protein, rice for increased iron to
reduce anemia, and plant oils to adjust cholesterol levels. There are also food crops
engineered to produce edible vaccines against infectious diseases that would make
vaccination more readily available to children around the world. For example,
transgenic bananas containing inactivated viruses protecting against common
developing world diseases such as cholera, hepatitis B and diarrhea, have been
produced. These vaccines will be much easier to ship, store and administer than
traditional injectable vaccines.59

Overall, biotechnology is perceived as having the potential to either help or hinder

reconciling of the often opposing goals of meeting the human demand for food,
nutrition, fiber, timber, and other natural resources. Biotech crops could put more food
on the table per unit of land and water used in agriculture, thus resulting in decreased
land and water diverted to human uses. Increasing crop yields and reducing the
amount of cultivated land necessary would also reduce the area subject to soil erosion
from agricultural practices, which in turn would limit associated environmental effects
on water bodies and aquatic species and would reduce loss of carbon sinks and stores
into the atmosphere.60

Adverse Health Effects of GMOs

Along with the much heralded benefits of GM crops to human health and environment,
there emerged controversial issues concerning GM foods.

In 1999, it was found that genetically engineered foods can have negative health
effects. Based on scientific studies, these foods can unleash new pathogens, contain
allergens and toxins, and increase the risk of cancer, herbicide exposure, and harm to
fetuses and infants.61 Independent studies conducted went as far to conclude that GM
food and feed are "inherently hazardous to health."62

A widely reported case is that of the Brazil nut gene expressed in soybean in order to
increase the methionine content for animal feed. The protein was subsequently shown
to be an allergen and the product was never marketed. Genetically modified foods can
introduce novel proteins into the food supply from organisms that are never consumed
as foods, which may pose a health risk. This may elicit potentially harmful
immunological responses, including allergic hypersensitivity.63

A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes
genetically altered to produce lectins, natural insecticides, to protect them against
aphids, damaged the animals' gut, other organs, and immune system. Dr. Pusztai found
that "the damage originated not from the transgene and its expressed product but from
the damage caused by the insertion of the transgene, probably due to insertional
mutagenesis."64 If confirmed, Pusztai's conclusions will reinforce concerns that gene
insertion itself may create new toxins; it will also implicate the toxin commonly used in
other genetically engineered crops - the Bt toxin which, Pusztai says, is also a lectin.65

The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe,
that helps determine if the foreign gene has successfully spliced into the host organism,
is another cause of grave concern among scientists. These arm genes might
unexpectedly recombine with disease-causing bacteria or microbes in the environment
or in the guts of animals or humans who eat GM food, thus contributing to the growing
public health danger of antibiotic-resistance of infections that cannot be cured with
traditional antibiotics (e.g., new strains of salmonella, e-coli, campylobacter and
enterococci).66 However, recent advances in genetic engineering indicate that use of
such selection markers is likely to diminish with the anticipated development of
alternative types of marker genes.67
Increased cancer risk is another critical issue in the consumption of GM foods. A growth
hormone genetically modified to stimulate milk production in cows was found to elevate
levels of IGF-1 (insulin-like Growth Factor-1, identical versions of which occurs in cows
and humans) in cow's milk by 80%. IGF-1 is reported to be a key factor in prostate
cancer, breast cancer and lung cancer.68 Dr. Samuel Epstein of the University of Illinois
warned of the danger of high levels of IGF-1 contained in milk cows injected with
synthetic bovine growth hormone (rBGH), which could be a potential risk factor for
breast and gastrointestinal cancers.69

Glyphosate, the active ingredient in Monsanto's Roundup® herbicide, has been found to
worsen modern diseases. A report published in the journal Entropy  argues that
glyphosate residues, found in most commonly consumed foods in the Western diet
courtesy of genetically engineered sugar, corn, soy and wheat, "enhance the damaging
effects of other food-borne chemical residues and toxins in the environment to disrupt
normal body functions and induce disease." Another research demonstrated a
connection between increased use of Roundup with rising autism rates in the US.70

Adverse Effects of GMOs to the Environment

Genetically modified crops affect the environment in many ways such as contaminating
non-GMO plants, creating super weeds and super pests, harming non-target species,
changing soil microbial and biochemical properties, and threatening biodiversity.

There are two primary types of technology so far deployed: insect resistance (Bt) and
herbicide tolerance (HT). Both have drastic modes of action to kill the target species at
high efficiency. Bt crops contain a toxin lethal to certain insects, and Bt sprays have
been used by organic farmers as a last option to deal with certain pests like the corn
borer. It is feared that genetically modified Bt crops will speed up resistance to Bt,
thereby rendering the organic spray ineffective.71 Lab and field tests also indicate that
common plant pests such as cotton bollworms, living under constant pressure from GE
crops, will soon evolve into "superpests" completely immune to Bt sprays and other
environmentally sustainable biopesticides.72 In the case of HT, the technology involves
the combined use of a chemical herbicide and a GM plant. The herbicide is generally a
broad spectrum herbicide (commonly glyphosate or glufosinate) which kills weeds while
leaving the crop plant alive as it is genetically engineered to be resistant to the
herbicide. The herbicide acts to inhibit an essential enzyme that is found in all plants
and as a result is able to eliminate all weeds whereas most conventional herbicides are
selective in their action and target a limited number of weeds. Concern has been raised
regarding over-reliance on use of one or two herbicides in increased amounts over time
which leads to the emergence of herbicide resistant weeds. Also, the transfer of an
herbicide-resistance gene into a weed can convert it into a superweed. Pests and weeds
will emerge that are pesticide or herbicide resistant, which means that stronger, more
toxic chemicals will be needed to get rid of the pests.73

It is a well-accepted fact that genetically engineered plants can move beyond the field
sites and cross with wild relatives.74 It is by nature a design of plants to cross pollinate
to spread genes further afield. Maize, oil seed rape, sugar beet, barley, among others,
are wind and insect pollinated, allowing pollen to travel large distances. In GM crop
fields, pollen drift and insect pollination create obvious problems for nearby non-GM or
organic crops.75 GM maize could cross-pollinate neighboring non-GM or organic maize
crops. Maize pollen can travel at least 500-700 meters and still be viable and distances
of several kilometers have even been reported.76 But many experiments showed
varying results and actual cross-pollinations were observed in Mexico up to 200 meters
only, while in Oklahoma it was 500 meters. In crop species that are outcrossers, many
environmental factors influence the maximum pollination distance such as the size of
pollen grains, the humidity in the air, and the wind speed.77Brinjal is usually self-
pollinated, but the extent of cross-pollination has been reported as high as 48% and
hence it is classified as cross-pollinated crop. The cone-like formation of anthers favors
self-pollination; but since the stigma ultimately projects beyond the anthers, there is an
ample opportunity for cross-pollination. The rates of natural cross-pollination may vary
depending on genotype, location, and insect activity. The extent of outcrossing has
been reported from 3 to 7% in China and from 0 to 8.2% (with a mean of 2.7%) at
Asian Vegetable Research Development Centre; however the Indian researchers have
reported 2 to 48% outcrossing in brinjal varieties in India. Outcrossing primarily takes
place with the help of insects.78

The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a
genetically modified yellow corn which contains the pesticide Bt in every cell, was found
in white corn tortilla chips in Florida, USA. Starlink had been approved for animal feed
but not for human consumption due to concerns about dangerous allergic reactions.
The Starlink incident is often cited to illustrate how difficult it is to keep genetically
modified crops from spreading.79

This gene flow to wild species is particularly alarming to environmentalists. The wild
species from which our agricultural plants originate are an important genetic resource
for further plant breeding if, for example, there is a requirement for improved
resistance to climate change or plant pests. Future plant breeding could be jeopardized
if transgenes spread into these resources. Similarly, agriculture in the centers of origin
could be permanently damaged if transgenes spread into regional landraces.80 Invasive
species can replace a single species or a whole range of species, and they can also
change the conditions within ecological systems. Crossing can cause losses in the
genetic information of the original species, a reduction in genetic diversity and an
ongoing incremental change of genetic identity in the original plants. It is hard to
predict which species will become invasive.81 Indeed, GM crops could threaten the
centers of crop biodiversity or outgrow a local flora to the detriment of native species.82

Bt gene in genetically modified crops might be toxic to non-target organisms that

consume it. When Bt corn sheds its pollen, these are cast into the wind, dusting nearby
plants and trees. Concern has been expressed about the potential toxicity of
the Bt toxin in corn pollen to the monarch butterfly because initial laboratory studies
showed increased mortality in larvae. However, in another study it was believed that it
is unlikely that a significant risk to those butterflies exists.83

On the effect of transgene crops on soil, one study

investigated CrylAcc and CpTI proteins and their effects on microbial properties and
enzyme activities. Results showed that there was persistence of said proteins in soil
under 4-year consecutive cultivation of transgenic cottons. Soil microbial biomass
carbon, microbial activities, and soil enzyme activities (except urease and
phosphodiesterase) significantly decreased in soil under transgenic cottons.84
In another review, it was stated that the direct effects of the plant that has been
modified is of the most concern since the introduction of transgenic proteins for pest
and disease resistance can involve the production of chemical substances that are
potentially toxic to non-target soil organisms, including mycorrhizal fungi and soil
microfauna that are involved in organic matter decomposition. Experimental studies
have shown that the transgenic proteins Bt crystal toxin and T4 lysozyme, though used
to prevent insect damage to the above ground plant parts, are not only present in root
exudates but that they maintain biological activity after entering the soil.85

As to the herbicide glyphosate, recent studies revealed its negative effects on the soil,
which include compaction and resultant runoff, the killing of beneficial microbes and
bacteria, and the exhaustion of necessary minerals and nutrients that plants require. It
was found that glyphosate "locks up" manganese and other minerals in the soil so that
they can't be utilized by the plants that need them, and that it is toxic to rhizobia, the
bacterium that fixes nitrogen in the soil. There is likewise evidence showing that
glyphosates can make their way to groundwater supplies.86 In a study which tested the
effects of the herbicide Roundup on six species of larval amphibians from North
America, it was demonstrated that when we "use realistic exposure times and the
frequently occurring stress of predators found in natural ecologic communities, one of
our most widely applied herbicides (Roundup) has the potential to kill many species of
amphibians." At the same time, the study noted that Monsanto Corporation has recently
released "an additional formulation of glyphosate (Roundup Biactive), which contains a
different (but unspecified) surfactant that is reported to be less toxic."87

Evidence of Damage or Threat of Damage to Human Health and the

Environment

Both petitioners and respondents submitted documentary evidence consisting of reports

of scientific studies and articles in support of their respective positions on the benefits
and risks of GM plants.

Further, the parties presented their respective expert witnesses who testified on the
allegations raised in the petition concerning damage or threat of damage to human
health and the environment resulting from the conduct of Bt talong field trials in the
Philippines. The CA conducted "hot tubbing," the colloquial term for concurrent expert
evidence, a method used for giving evidence in civil cases in Australia. In a "hot tub"
hearing, the judge can hear all the experts discussing the same issue at the same time
to explain each of their points in a discussion with a professional colleague. The
objective is to achieve greater efficiency and expedition, by reduced emphasis on cross-
examination and increased emphasis on professional dialogue, and swifter identification
of the critical areas of disagreement between the experts.88

On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing
before the chairman and members of the CA's Special Thirteenth Division. Dr.
Chakraborty, Dr. Medina and Dr. Malayang were presented by the petitioners while Dr.
Davies, Dr. Halos, Dr. Ebora and Dr. Cariño appeared for the respondents.

The following are summaries of the expert witnesses' judicial affidavits:

For Petitioners

DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science

Fellow serving as senior science advisor on agricultural biotechnology in the US
Department of State, and editor for plant physiology for McGraw-Hill Encyclopedia of
Science and Technology.

In his review of agricultural biotechnology around the world, he has not encountered
any verifiable report of a field trial of any GM crop that caused damage to the
environment and to human health. This involves more than 25,000 field trials in 20
years with crops such as Bt eggplant, Bt cotton, Bt corn, and others. The same applies
to the commercial cultivation of Bt crops, which have been grown in ever increasing
quantities worldwide for 16 years and now comprise the majority of the world acreage
of maize and cotton.

A recent European Union (EU) report which concludes that more than 130 EU research
projects covering a period of more than 25 years of research involving more than 500
independent research groups, show that consuming foods containing ingredients
derived from GM crops is no riskier than consuming the same foods containing
ingredients from conventional crops. The World Health Organization (WHO), American
Medical Association, US National Academy of Sciences, European Food Safety Authority
(EFSA) all have come to the same conclusion.

GMOs have been proven safe as conventionally-bred crops in animal studies. A small
number of poorly done studies purportedly claiming negative effects, should be viewed
with great caution and have been highly criticized for their veracity by the
overwhelming majority of highly respected scientists. Many hundreds of studies show
no harmful effects. To date, not a single rigorous study of GM foods in animals has
revealed any adverse effect; not a single case of allergy, illness, cancer, or death have
been shown to be associated with foods derived from GM crops, despite the fact that
they have been consumed by Americans for 16 years.

Recent studies indicate that Bt crops enhance the ecological diversity in the areas
surrounding those where Bt crops are grown. Over a period of 13 years, cultivation
of Bt cotton in China results in an increase in insect diversity and abundance and a
decrease in crop damaging insects not only in Bt crop fields but also in surrounding
non-Bt fields.

GM crops deliver significant yield increases, result in less exposure to pesticides,

improve food security worldwide, protect against devastating crop losses and famine,
improve nutrition, and some GM crop techniques help combat climate change.89

DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major
in Agronomy (Plant Breeding), UPLB, and served as Instructor, Associate Professor,
Chief Science Research Specialist, Research Director at UPLB, UP Diliman, De La Salle
University, Forest Research Institute now Ecosystems Research and Development
Bureau of DENR and the Biotechnology Coalition of the Philippines.

From her research, she gathered that the protein product of

the Bt gene CrylAcc in Bt cotton that is also in Bt eggplant has been found safe by
many food and environmental safety regulatory agencies such as those in Australia,
New Zealand, USA, Canada, Brazil, China, India, Mexico, Argentina, South Africa, Japan
and EU.

Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial
permits were for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop
field trials have been reported. No report of adverse effects of Bt crop field trial exists.
All claims of adverse health and environmental effects of Bt crops has not been
scientifically validated. The yearly expansion of GM crop areas in both the developing
and industrialized countries is an attestation of the preference of farmers and the
economic benefits that accrue to them.

GM crops have positive environmental impact. Currently commercialized GM crops have

reduced the adverse impacts of agriculture on biodiversity. The use of Bt crops has
significantly reduced the use of pesticides, and also increased farmer incomes.90

DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S.
Entomology (Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in
microbiology and biotechnology, Osaka University, Japan, and Intellectual Property
Management and Technology Transfer, ISAAA AmeriCenter, Cornell University, USA.
Director, and Research Associate Professor, National Institute of Molecular Biology and
Biotechnology (BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety
Systems; former Executive Director, Philippine Council for Industry, Energy and
Emerging Technology Research and Development, DOST; former Chair, Biosafety
Committee, DOST; and was a Member of the Institutional Biosafety Committees of
UPLB and International Rice Research Institute (IRRI); and was extensively involved in
the isolation, bioassay or efficacy testing and development of Bt as microbial
insecticides for the control of Asian corn borer and mosquito larvae at BIOTECH.

The contained field trial experiments, among others, were designed to address concerns
on cross-pollination or horizontal gene transfer, pollination distances, harm to beneficial
organisms, and development of insect resistance. To prevent cross-pollination, an
isolation distance of 200 meters from other areas where eggplants are grown or wild
relatives are present, was observed, and with five (5) rows of non-transgenic eggplants
that serve as pollen trap plants. As to the flight distance of honeybees reaching 4
kilometers, what was not mentioned is the viability of pollen after it was shed and
travelled at a certain distance. Numerous literatures have shown that isolation
distances much less than 200 meters is sufficient to prevent cross-pollination. Two
studies are cited: Sekara and Bieniasz (2008) noted that cross-pollination at a distance
of 50 meters was nonexistent; and the Asian Vegetable Research and Development
Center (AVRDC) indicated that eggplants produce perfect flowers which may be cross-
pollinated but self-pollination is more common, the extent of natural crossing depends
upon insect activity and this can be avoided by isolating each variety by 20 meters or
with another tall flowering plant. The isolation distance imposed by DA-BPI is 1 Ox the
recommended isolation distance; the 200 meters distance was found sufficient for pure
seed production in India (the same recommendation by Chen [2001] of AVRDC
foundation for seed production purity standards); field studies in 2 locations in India
have shown that at a distance beyond 30 meters no more outcrossing could be
detected. Taking all these data into account, the 48% outcrossing being raised by
petitioners is most likely for adjacent plants and therefore not a valid argument for the
on-going field trials.

The Bt talong will not directly affect beneficial organisms like pollinators, predators and
parasites of insect pests because it is toxic only to caterpillars or insects belonging to
Order Lepidoptera (butterfly and moths). The selective toxicity of Bt protein in Bt
talong is partly due to the fact that the gut physiology of these insects is very different
from caterpillars, and not all caterpillars are affected by it. There is a significant number
of literature on Bt protein's selectivity and specificity.

As to the development of insect resistance, this is not possible during the multi-location
field trials for Bt talong because of low selection pressure and limited exposure of the
insect pest to Bt talong. Insect resistance is not unique to GM crops as it is a commonly
observed biological reaction of insect pests to control measures like insecticides. In the
event Bt talong is approved for commercialization and will be widely used by fanners,
this concern could be addressed by insect resistance management (IRM); an IRM
strategy should be required prior to the commercial release of Bt talong.

There is no compelling reason to stop the field trials; on the contrary they should be
allowed to proceed so that scientists and researchers will be able to generate valuable
data and information which will be helpful in making informed decisions regarding the
usefulness of the technology.91

For Respondents

DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at

Berkeley; M.A. Philosophy, M.A. International Affairs (Southeast Asia Studies major in
Economics), Ohio University; AB Philosophy, UP Diliman; former Undersecretary of
Environment and Natural Resources; served as Environmental Science representative in
the National Biosafety Committee of the Philippines and participated in the drafting of
the Philippines Biosafety Framework; and student, lecturer and advocate of biodiversity,
food security, biosafety and environmental policy.

He is concerned with how GMOs are being introduced for commercial-scale use (as
against being used for academic research) in the Philippines on the following grounds:
(a) how they might contaminate the indigenous genetic resources of the country; (b)
how they may cause an imbalance of predator-prey relationships in ecosystems, so that
certain species might dominate ecological niches and erode their biodiversity and
ecological stability; (c) how they may erode the ability of farmers to control their
genetic resources to sustain their cropping systems; and (d) how much are present
biosafety protocols able to safeguard the long-term ecological and economic interests of
the Philippines as a particularly biodiversity-rich country and which is, therefore, highly
sensitive to genetic pollution; to the extent that its biodiversity is its long-term equity
to advances in biotechnology, the most robust measures must be taken so that such
resources will not be lost.

Being a highly biodiversity-rich country, biosafety measures in the Philippines must be

adopted using a 3-stage approach: Stage 1 - Develop criteria for biosafety measures;
meaning, first, adopt a set of standards for determining the level of robustness of
biosafety measures and protocols that would be acceptable in the particular case of the
Philippines; include required scoping and internal and external validity requirements of
impact and safety assessments; Stage 2 - Using the criteria produced in Stage 1,
develop biosafety measures and protocols to be adopted in the Philippines; and Stage 3
- Apply the protocol with the highest rigor.

Biosafety must be a public affair involving a broad spectrum of the Filipino state rather
than its considerations being restricted only to specific professionals and sectors in the
country; biosafety must be based on an enactment of Congress and open to challenge
and adjudication against international laws; provisions must be made to make it a
crime against humanity to recklessly erode and weaken genetic resources of our
people.92

DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S.

(Insect and Plant Ecology) and B.S. Agriculture, UPLB; National Coordinator of
MASIPAG; served as resource person in more than a hundred trainings and seminars,
both local and abroad; served as member in international agricultural assessment
sponsored by Food and Agriculture Organization (FAO), United Nations Environment
Program (UNEP), WHO, and the World Bank; worked on a project for development of
resistance to corn borer in 1981 at the Institute of Plant Breeding in UPLB, and served
as researcher and later Associate Professor of Environmental Management of the UP
Open University.

Based on her studies and extensive experience, the Bt talong field testing poses the
following risks or hazards: (a) While natural Bt sprays used in organic farming have
little effect on non-target organisms because the bacterial 'pro-toxin' is in an inactive
state and only becomes toxic when processed and reduced in the gut of certain
(targeted) species of insect larvae, in contrast, Bt plants contain an artificial,
truncated Bt gene and less processing is required to generate the toxin because the
toxin is already in its active form. It is therefore less selective, and may harm non-
target insects that do not have the enzymes to process the pro-toxin, as well as the
pests for which it is intended; (b) Bt proteins from natural Bt sprays degrade relatively
quickly in the field as a result of ultraviolet light and lose most toxic activity within
several days to two weeks after application. In Bt crops, however, the Bt toxin is
produced by the internal system of the plants thus non-degradable by mere exposure
to sunlight and generated throughout the entire lifespan of the plant; (c) Bt talong can
also affect the environment by harming important or beneficial insects directly or
indirectly. Genetically engineered Bt eggplant, like other Bt crops, could be harmful to
non-target organisms if they consume the toxin directly in pollen or plant debris. This
could cause harm to ecosystems by reducing the numbers of important species, or
reducing the numbers of beneficial organisms that would naturally help control the pest
species; (c) The evolution of resistance to Bt crops is a real risk and is treated as such
in ecological science throughout the world. If enough individuals become resistant then
the pest control fails; the pest becomes abundant and affects crop yield. Granting the
pest control practice is successful, it may also simply swap one pest for another, a
phenomenon known as secondary pest outbreak. Several studies have shown that other
pest insects are filling the void left by the absence of the one (or very few) insect pests
that Bt crops target, and this is now the problem with Bt maize.

Eggplant is 48% insect pollinated thereby any field release or field testing of genetically
modified Bt talong will eventually lead to contamination of non-genetically modified
eggplant varieties. Insects, particularly honeybees, can fly as far as 4 kilometers and
therefore the 200 meters perimeter pollen trap area in the confined field testing set by
BPI is not sufficient. And once contamination occurs, genetic cleanup of eggplant or any
other plant is impossible. Moreover, intra-specific gene flow from Bt talong to other
varieties and populations of eggplants should be examined, as cultivated eggplant
(Solanum melongena) can cross breed with feral populations of S. melongena, and it is
possible that cultivated varieties can revert to wild phenotypes. Additionally, there is
likely to be natural crossing between Bt talong and wild relatives. Hybridization with
perhaps as many as 29 wild relative species needs to be evaluated carefully and the
consequences of any hybridization that occurs needs to be evaluated.

In 2010, the Minister of Environment and Forests of the Government of India, in his
decision for moratorium of Bt Brinjal, listed potential contamination of eggplant
varieties as one of the reasons why the release of Bt Brinjal was not allowed. Dr. Andow
of the University of Minnesota also published an 84-pages report on the Environmental
Risk Assessment of Bt Brinjal, and among his conclusions is that several environmental
risks were not considered and nearly all the risk assessment done were inadequate. He
concluded that until the risks were understood or managed, there seems to be little
reason to approve Bt Brinjal release.93

DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta

University; Molecular Biologist, presently Principal Scientist and Head of the Gene
Regulation Laboratory in the Council of Scientific and Industrial Research - Indian
Institute of Chemical Biology (CSIR-IICB); Member, Governing Body and Executive
Committee of the state council of Biotechnology, Government of West Bengal and
Chairman of the Biotechnology group of the state council of Science and Technology,
Government of West Bengal; Visiting Professor of the National Institute of Science,
Technology and Development (CSIR-NISTAD); citizen of India and resident of Kolkata,
India.

GMO is a classic example of "paradoxes of consequences", where human actions have

unintended consequences, which are in direct opposition to what was intended. The
difference in controlled laboratory condition and standards, and real life open field level
micro and macro-environment pushes the advantage towards the target and non-target
living system, with time. The pest resistance to Bt toxin and development of herbicide
tolerance (HT) in weeds is just a matter of time. The decade long experience in Bt and
Ht genes amply proves this point. If we ignore this now - we are manufacturing a global
environmental disaster - which will be a crime against humanity. There is no way to
recall these GMO from the environment.

Even the short term benefits of GM agriculture are not scale neutral, or location-
independent. It will help the monopoly agribusiness and the expenses of monopolistic
competition or cooperative organic farming. Hot climate and rich biodiversity is
detrimental towards the effectiveness of Bt constructs, and helpful towards unintended
gene flow. Moreover, the genetic manipulation is no way fail safe or exact. Shotgun
techniques are being adapted, aided by focused laboratory based screen of traits -
rather than the host or the full natural product. The GM labeling is avoided to cover up
this major fault.

The tendency to avoid the available risk assessment, and test is very clear in the GM
agribusiness. Before going ahead with spread of this technology, even in a batter form,
the foremost task is to establish rigorous test and assessment procedures. There are
excellent available tools of preteomics, transcriptomics, and metabolomics for detailed
compositional analysis in our hand to do this. Please ask, why they are not being
employed? In fact, there is not a single centre to test GM products on behalf of the
corporate GM Agribusiness house. Thus, low level, long term toxicity of GM foods are
yet to be tested. I believe the time has come to establish a standardization facility to
carry out such test facility in any country before giving permission to GM trial or
cultivation.94 ChanRoblesVirtualawlibrary

The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein
reproduced:
Dr. Cariño: chanRoblesvirtualLawlibrary

x x x This is to clarify something with the BT Talong and the BT Talong has its

substance. It is not supposed to be consumed at the moment still under field trial, so it
is not supposed to be eaten at the moment. It has not been released for food nor for
feed and so in the context of a confined field test, it has supposed to have it out in the
field in a very controlled manner and any produce that comes out from that area is
supposed to be destroyed or kept from further safety and analysis only.

Chairperson: chanRoblesvirtualLawlibrary

So, actually, there is no full scientific certainty that it does not cause any harm
pertaining to health?

Dr. Cariño: chanRoblesvirtualLawlibrary

BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If
reporting of the BT toxin in BT  Talong is CrylAcc, there are numerous studies that had
been actually published on relative safety of CrylAcc  protein and it is actually
considered as an additional protein and the various reviews can be seen in the OECD
Digest of risk assessments on  CrylAcc protein. Alternatively, if you are looking at the
possibility of harm coming from the introduced protein as yet, we have not done a full
blown assessment of it as of the moment. But we look at the protein sequence and with
a comparison of its sequence with other sequences in the data basis to see if it is
similar to this amino acid sequence of other known toxins and, so far, I have actually ...
in my affidavit, I have actually seen personally that it is not closely related to any of
the known toxins that are found into its system.

Chairperson: chanRoblesvirtualLawlibrary

So, in effect, we can not really say that BT Talong  is perfectly safe for human
consumption?

Dr. Cariño: chanRoblesvirtualLawlibrary

Right now it is not meant to be consumed by human at this point. Let me just clarify
one point. When any GM material is supposed to be introduced for food and for feed
and before it is actually utilized for life skill production, it goes through several steps.
The first step is actually the "lab", laboratory work and it is actually tested in this clean-
houses, rolled-out confined limited field test and then it goes to butyl abyss of field
tests where it is like generating more and more informations. We are still early on in
this pathway, so we are only in the confined field test and, at the moment, the thing is
that it is still being tested. The focus is on its efficacy after doing a preliminary
assessment of the possible pathological and ecological effect, and that is the pathway
that has been recommended by so many academics as well as scientific institutions as
well. And, that has been a tract followed by almost all the genetically modified crops
that is being introduced in the market today, but at the moment BT Talong is not yet a
commodity. It is not yet being evaluated as a commodity.

Chairperson: chanRoblesvirtualLawlibrary

So, no one in this country has yet eaten this BT Talong?

Dr. Cariño: chanRoblesvirtualLawlibrary

No, it has not been eaten, as far as I know. Even in India it has not been consumed by
human beings because it has not been introduced as a commodity.

Chairperson: chanRoblesvirtualLawlibrary

But what is the ultimate purpose of growing BT Talong? It is not for human
consumption, of course?

Dr. Cariño: chanRoblesvirtualLawlibrary

If it passes the safety assessments. That there is always a peak condition that, if it
would not to be evaluated in a step of the way much like to evaluate any new product
that is coming into the market evaluation, goes on a step-by-step and at least day-to-
day basis.

Dr. Davies: chanRoblesvirtualLawlibrary

Your Honor, may I interject, may I suggest with your permission? I would just like to
make a little bit of explanation.

Chairperson: chanRoblesvirtualLawlibrary

Proceed.

Dr. Davies: chanRoblesvirtualLawlibrary

I would like to address "BT" as a compound which is distinct from a plain in "Talong".
First of all, I think of the name BT toxin is very fortunate. It is really a protein. A
protein is an essential constituent of life. It is an essential constituent of our food. In
the human body, and in the body of other animals, this protein is under the same as
any other protein in food. It has no effect on the human body. This has been shown for
many, many years, knowing BT Talong but BT has been a constituent of "maize" in
commercial production for 16 years.

xxxx
Dr. Davies: chanRoblesvirtualLawlibrary

x x x So it has been in corn for 16 years after substantial trials. It has been consumed
by Americans in corn products and by any other people who in[g]est American maize
corn products x x x. There is not a single case of illness or toxicity or allergenicity that
can be or that has been associated with this protein and, therefore, any food containing
this protein has been declared by authorities in all the countries that was mentioned by
my colleagues, including the European Union and the United States x x x to be as safe
as any food derived from the same plant species not containing this gene. I hope that
explains a little bit about what it is.

Chairperson: chanRoblesvirtualLawlibrary

Are you aware of a study, Dr. Davies, released on September 20 of this year, saying
that Monsanto's genetically modified corn is linked to cancer?

Dr. Davies: chanRoblesvirtualLawlibrary

Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-
Eric Seralini? I think this is one of the publications by Seralini's group. Dr. Seralini's
work has been refuted by International committees of scientists...

xxxx

Dr. Chakraborty: chanRoblesvirtualLawlibrary

Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the
snake venoms. They are poisons, so whether it is protein or not that is not the
question. So proteins obviously venoms and proteins and enzymes and they are
poisons so protein can be a poison so that is now the point at all to be considered. The
second thing is, yeah, low level toxins long term in[g]estion of this BT toxin in human
or in any other animal have not been tested. So that is true so we do not know direct
consumption of this, because notice have been turned down, that is the objective fact.
The third point is about the "American Corn", and if I can give you such anecdotes,
"American GM Corn" are not labelled, how do you know that? What is its effect? What is
its toxicity? And, obviously, there are more than a hundred of papers showing and
published in very good journals. I can give many references which have shown the
detrimental effect of BT Toxin.

xxxx

Chairperson: chanRoblesvirtualLawlibrary

But before having this BT talong scheduled and allowed for field testing, is it not proper
that it should be first determined whether this food product is really safe for eating or
not?

Dr. Cariño: chanRoblesvirtualLawlibrary

There is an initial assessment that is generally done and according to the Codex
Alimentarius of the WHO, the thing that you do at this early stage of development is to
compare the sequence of the protein that is being introduced with published sequence
of allergens, as well as toxicants and toxins. So that has been done. Then you have to
look for instability under heat conditions because there is seldom do we heat grow
eggplants, so is it stable under heating. Is it stable in the presence of digestive juices?
And, if the answer is "yes", there is at least fair certainty, a fair assurance that it is
likely to be safe but then you start thinking of what other component not present in the
product, does this. For example, any product that we consume today has something
that is bad for you, otherwise, you will not see it right now. Otherwise all the different
herbivores will be eating it up, right? It will be extinct if it does not have anything to
protect itself and, so, the thing is one, to quantify how much of that has changed when
you lead the genetic modification. So "Talong" has been known to have Solanine and
glycoalkaloids whose level well have to quantify. We have not done that yet. They have
not submitted the data for that and this as secondary metabolize whose relative
concentration will change depending on the environment to which you actually place
the system.

Dr. Chakraborty: chanRoblesvirtualLawlibrary

x x x In india, we have a very bad experience x x x in location field trial with

the BT Cotton. You known that BT Cotton was introduced in India through the back
door black market entry. During the field trial, some of those seeds were taken out and
given to the farmers for commercial cultivation to black market. Monsanto goes well,
Monsanto's BT Cotton,  like Monsanto, did not sue now apparently sue the company
and they compelled the government that farmers wanted those things and there was
high ... how they pressurized the government. Now, in case of BT cotton is one thing,
but BT Eggplant is completely a different thing. That is why [the] Supreme Court in
India has taken a very strong stand and, now, the parliamentary committee in India.
The Supreme Court has also taken steps stand with the field trial. The first thing in field
trial we had to see that whether there is a definite need of this kind of intervention,
because the eggplant is a very common vegetable in this part of the world. There are
so many hundreds of varieties here, these are the origins of these varieties of this kind
of vegetable. It is cheap. It is available everyday. So why you go on changing if there is
no crisis in cultivating the eggplants at present. Therefore, when you give it to this
patented seeds technology, its prices will increase, lot of restrictions had to be deal. So,
who will consume this high price eggplant. Many will be exported, that was why the
proponents are looking into it. But, basically, that is the thing that in case of BT Brinjal,
neighbor partisan is being given. There is a moratorium in India from the Supreme
Court and from the government side on field trial of BT Brinjal. Now, if x x x
the BT Eggplant is being taken to the Philippines, we guess, to get in as a bypass, and
who will guarantee that it will not go to the farmers?

xxxx

Justice Antonio-Valenzuela: chanRoblesvirtualLawlibrary

And, I was wondering in the conduct of the tests, the field testing x x x what would be
the effect of the planting .... of the existence of the genetically modified organism, for
example, on insects, on the soil, on the air? And then I was thinking, does this have
this particular protein that result[s] due to the genetic modification? Is it ... how is it
expelled, for example how does it go into the environment? Or, on the other hand, how
does it go inside and out of human system so that does it disintegrate or is it just there
forever? I am very curious, sir. You have to educate me.

Dr. Davies: chanRoblesvirtualLawlibrary

x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to
protein produced by each cell will be this BT protein. It does not get into the
environment in general. A very small amount might be in the pollen or in the leaves
that fall to the ground but it has been shown to be broken down in the soil by
organisms so it will not exist in the environment. The only way that it is going to get
into animals or insects is if they eat the fruit and this is what an insect that the "talong"
fruit and shoot borer will be trying to. But, if it eats it, it reacts with its intestine so that
they become toxic to the caterpillar but this is very specific to the digestive system of
the caterpillar. It does not affect bees. It does not affect animals. It does not affect
humans.

xxxx

Dr. Davies: chanRoblesvirtualLawlibrary

At the scientific level, it gets changed by alkalinity of the insect gut and reacts with
specific receptors of the cells of the walls of the insect gut. But, this is very specific to
the gut of these insects namely the "Lepidoptera" and some "coleoptera" which are the
butterflies and the beetles but it will only affect if they try to eat the plant. Now, you
are asking us if what is the effect on the environment. x x x I would like to cite x x x a
recent paper published in the journal "Nature" x x x the most prestigious scientific
journal in the world, x x x published in "Nature" in June this year and this is the result
of a study of "insects" in BT Cotton fields in China in 17 locations for 14 years of a long
period study. And these scientists revolt that they show a marked increase in the
abundance of three types of generalist arthropod predators (ladywings, lacewings and
spiders) and a decrease in abundance of aphid pests associated with widespread
adoption of Bt cotton. And they are referring to China and they conclude that such
crops, x x x BT crops, can promote beneficial control services in agricultural landscapes.
And, it also showed that these effects extend beyond the field. So, essentially x x x
they found that there were more insects than in conventionally grown cotton and the
insect diversity was greater surrounded than being detrimental to an agriculture
ecosystem such BT cotton falls beneficial.

Dr. Chakraborty: chanRoblesvirtualLawlibrary

May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there
was another news article, "Battlefield". One stream ecologist in United States itself, in a
university, she has studied the effect of growing BT Corn in the field and what is the
effect on the stream ecology, the west water, what is happening to other insects,
insects in which it is getting that BT toxin will not go. Yes, she has found that stream
ecology...

xxxx
Dr. Chakraborty: chanRoblesvirtualLawlibrary

Why was it published in "Nature" when that stream ecologist from Loyola University
Chicago in Illinois published that paper, published that article in PNAS or Proceedings of
the National Academy of Sciences, a prestigious journal? Now, they have to desert her.
She was abused, so her file was taken out. So people started e-mailing, threatening
her. So "Nature" has to publish that. How dirty the field has become so they entitled it
"Battelfield." If anybody produces any evidence that BT Toxin or GM Technology is
doing any harm to the environment then it will be battered by the entire English lobby
so there is worst the situation. But National Academy of Sciences in United States has
taken a strong decision and, in last year, there were six publications that published
where strong evidences are being produced about the environmental and ecological
damage cause[d] by this technology. So, that is the case.

Dr. Davies: chanRoblesvirtualLawlibrary

Can I respond to that, your Honors?

Dr. Malayang: chanRoblesvirtualLawlibrary

I think Filipinos should be able to talk also here.

Chairperson: chanRoblesvirtualLawlibrary

Can we give a chance to Dr. Malayang?

Dr. Malayang: chanRoblesvirtualLawlibrary

x x x My concern is on the process and participants in vetting the safety of GM crops,

not necessarily the intricacies of the science involved in genetic modification per se
which, I think our international friends, would like to focus on. x x x

One, I am concerned with the fallibility of technology, x x x even if it is much founded

on or produced from the most robust sciences, a technology could fail to be as useful as
it was intended or its use lead to an [unintended harm to humans and the environment.
This is so because science, by nature, as many scientists will agree, is very probabilistic
rather than absolutist. Many cases of common knowledge illustrate this point. May I
just refer, for the Court's notice for, First, the Nuclear Power Plants in Japan x x x. The
best science and the best technology did not necessarily translate to absolute safety.

Second example, the Union Carbide Plant in Bhopal, India. It was among the most
advanced production ton at its time, yet, we know what happened. x x x Union
Carbide's [hurry] to set up a plant to take advantage of a large pesticide market in
India to help the country's farmers led to a massive and deadly safety failure.

The Third example is the green revolution, x x x involves, however, the wide [use] of
synthetic chemicals for fertilizer and pesticides that were [at] the time hailed as wonder
technologies. Many scientists in the world at that time argued for their wider use but
they later turned out to harm people, soils and water. They prove good then bad, so
bad that scientists today are using their ill effects as justification for adopting
alternative technologies to get us out of the synthetic chemical regime in agriculture.

And finally, the most common example would be the unintended effects of medicine. x
x x Medicines are technologies intended to do good but, with even the best science and
the vetting processes using rigid safety and risk assessment methods, they still could
cause side effects entirely undesired and many of which can cause chronic or acute
threats to human life. This includes the use of "DDT" that was used to control lice
among soldiers after the II World War which, after all, proved to be very bad.

x x x I am also concerned with the fragility, fragility of the Philippine environment as

the place and context, the particular place and context of the introduction of BT crops
like BT talong. x x x the Philippines is among the world's biologically rich countries. x x
x So, many of our insects are not even fully known. We do not know how they all
behave to influence the transfer of genetic materials from plants to other plants. We do
not fully know what we do not know about the intricate interactions between plants and
between insects and other living things that define the universe of our healthful and
balanced ecology. The universe of our healthful and balanced ecology certainly go
beyond specific crops. I am concerned that, absent a full as against partial
understanding of the intricate web of genetic flows and interactions among plants,
animals and other living things in our wet and tropical ecosystems, it will require
extraordinary care to tamper with any one element of this swirl of interrelationships.
This is notwithstanding the seeming preponderance of evidence of safety in other
countries and environment that are certainly not the same as ours. x x x we must be
extra careful because the effects might be irreversible. Introducing a genetically
modified plant x x x could cause a string of changes across many plants that, like the
green revolution or in the case of medicine and the two other cases cited above, could
turn out and only to be realized much later to be harmful to humans and the
environment more than they were intended to be useful. x x x let us ensure that we
adopt in the country a biosafety vetting protocol that is: (1) sensitive to our high
biodiversity this is a particular condition in the Philippines; and (2) tested for error
levels that are acceptable to or which can be tolerated by our people. My affidavit
states a three-stage approach to this. x x x the tests that we will be doing is a test
process acceptable to all as well rather than merely concocted or designed by just a few
people x x x must be a product of wider citizens' participation and reflect both scientific
and traditional knowledge and cultural sensitivity of our people. It is in the NBF after
all, x x x introducing BT Talong in the Philippines must be decided on the grounds of
both science and public policy and public policy, in this case, must involve full public
disclosure and participation in accepting both the potential gains and possible pains
of BT Talong. The stakes, both positive and negative, are so high that I believe BT
Talong  would require more public scrutiny and wider democratic decision making
beyond the [realm] of science. x x x  for the sake of our country and our rich
biodiversity x x x prudence requires that maximum efforts be exerted to ensure its
safety beyond the parameters of science and into the sphere of public policy. For to fail
in doing so what might be highly anticipated to be beneficial may in some twist of
failure or precaution and prudence and failure for due diligence to establish the safety
of  Bt Talong beyond reasonable doubt, the BT Talong may turn out to be harmful after
all. This we certainly do not want to do. I submit these views to the Court.
 
xxxx
Dr. Davies: chanRoblesvirtualLawlibrary

x x x another thing I would like to point out to the Court is, if you come into a market
in the Philippines and you see nice Talong, it has probably been treated with various
insecticides. So, there has been insecticide spray on your tips in your crops which are
going to be harm on your farmers, your farmer's children, the insect populations and
also dangerous to the consumers as well. By contrast, Bt Talong, if it is adopted,
the BT has been shown to be beneficial to the insects and the environment and also has
been shown not to be toxic in food. Therefore, we are changing a highly toxic chemical
application for a much more benign modern technique that is beneficial to the
environment and beneficial to the consumers. That is my comment with the views just
made by my Filipino colleagues, your Honors.

Dr. Malayang: chanRoblesvirtualLawlibrary

x x x You know, in ecology and, I am sure you are aware of this, an expansion of
anyone population or a reduction of that population it would still be both not beneficial
to the healthful and balanced ecological health of the ecosystem. So to say that
because the population of insects are exploded and the diversity of insects exploded as
a result of this particular intervention is not necessarily good. That is my first point. The
second one, you mentioned x x x the "talong" is laden with pesticide. The same
pesticide were advised by scientists from the USAID before for us to use in this country
because this is how to expand our production of food. This was part of the green
revolution, the systemic use of pesticides and fertilizer. Now, of course, they were
misused, I can guarantee that but, again, if that be the case, in the case of pesticide
why can it not be in the case of BT that it can also be misused? x x x we are talking
here not of the science or of the technology but on the policy aspect of the adoption of
the technology. As I said, I am talking about the bakery not of a baked-bread.

Dr. Saturnina Halos: chanRoblesvirtualLawlibrary

Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In
terms of the use of Bt Talong, then, that kind of misuse is not going to happen x x x.
Now, in the Philippines, we have a very strict highly monitored field testing and I think
Dr. Malayang knows about that because he was one of those who prepared the
guidelines for the field testing. So that is not going to happen, it is a very strict
regulatory system. We are known for that, actually, and...

xxxx

Dr. Saturnina Halos: chanRoblesvirtualLawlibrary

No, no. It does not happen because we have a risk management plan x x x.

xxxx

Dr. Halos: chanRoblesvirtualLawlibrary

x x x As far as do we know what is happening after we have given approval, yes, we

are monitoring. We are monitoring as far as BT corn is concerned. We are monitoring,
continuously monitoring, not only for the beneficial insects but also the effects that is
continuing, we are also continuing to monitor the weeds, weed population. In weed we
decide to spray...

Dr. Malayang: chanRoblesvirtualLawlibrary

And why is this, ma'am, why are we monitoring? Because they could be harmful?

Dr. Halos: chanRoblesvirtualLawlibrary

No we have to know what is happening.

Dr. Malayang: chanRoblesvirtualLawlibrary

Yes, why? Because if you are sure that they are safe, if you are sure that they are safe,
why monitor?

Dr. Halos: chanRoblesvirtualLawlibrary

Well, we are going to give you the data for that because you keep on asking, you know,
you asked for a long term and we are going to give you that complete data.

xxxx

Dr. Medina: chanRoblesvirtualLawlibrary

I would like to raise several issues because I feel they are misleading sometimes. Dr.
Davies mentioned that the BT protein is a protein, therefore, it is safe. Are you sure
that all proteins are safe, Dr. Davies? Are you aware of anti-nutrients and allergens and
other kinds of protein x x x it is a misleading generalization. Secondly, I would like to
say also that, when you say that BT crops is beneficial to insect population but, how
about humans? But, let me tell and inform the Honorable Justices also that, in
agriculture, there can be, the pests are there to reduce the yield. There are also
diseases so, that this Bt is only controlling one kind of pest and, in my monitoring of BT
corn as an example to this 2 years after the commercialization in 2003, at first planting
in 2003, the corn is attacked by about a dozen insect pests and six major diseases.
The Bt corn was attacked a "stem rot", a fungal disease. And, in this case in eggplant,
there are many fungal diseases, "phomopsis" x x x So in that case it is not field safe
that you will not be using pesticide anymore with BT eggplant. When you use
the BT eggplant, assuming that there is no more insect pests x x x There are many
other methods of control and, therefore, do not assume that you do not use pesticide
therefore, BT is the only solution. That is also a risky and wrong generalization or
statement, x x x Dr. Halos x x x says that field tests are safe. I intend to disagree with
that. Safe to what? Especially to contamination. If I may use this picture of the field
testing of the Bt eggplant x x x it was encircled with cyclone wire with a diameter of
something like approximately 10 cm. by 7 cm. hole. While bees that can pollinate that,
the size is about 1 cm. in length and .5 cm. in diameter of the insect. The bees and, in
that case, they can easily get in and get out and when they settle into the flowers and
snip nectars and the fall of the pollen then they can bring out the pollen to contaminate
outside that. In fact, even assuming that the fence is very small in size of the mess, the
holes, still the insects can fly above that fence because the fence is only about 5 feet in
height. So, in that case it is not safe. Some arguments say that "well the pollen will be
dead" but, according to this technical manual of the Training Workshop On Data
Collection for Researchers And Collaborators of Multi-Location Trials of Fruit and Shoot
Borers Resistant Eggplant, that is the Bt Eggplant produced by the Institute of Plant
Breeding in UPLB who is one of the main researchers the datas, here say according to
"Rasco", cited by Dr. Narciso, is that the pollen can live 8 to 10 days pollen by ability at
20 to 22 degrees centigrade, with a relative humidity of 50 to 55. x x x Meaning to say,
that pollen can survive. This can fly as fast as something like 60 kilometers per hours
so it just take may be 3 minutes and it can travel 4 kilometers and 4 kilometers is the
effective flying distance of a bee in their normal foraging.

xxxx

Dr. Medina: chanRoblesvirtualLawlibrary

x x x There is no data on the contamination so how come they argue, how can they
conclude that it is safe when they have not monitored any potential pollen flow by
insect mitigated or insect mediated flow pollen? So, in that case, the conclusion or the
statement is really beyond what their data may be is if their data is about safety.

xxxx

Dr. Ebora: chanRoblesvirtualLawlibrary

xxxx

x x x I hope that we will be able to look at the experimental design and you will see
that all the things are properly addressed, our risk assessment was done step by step,
x x x I beg to disagree with my friend Dr. Medina because it is becoming ... we are
confusing 2 things. We are not referring to contained trial. We are referring to confined
field trial and in the design of this particular experiment, you have your BT eggplant,
your non-BT  eggplant so that you can compare the performance with the 2 crops. And,
on design, you have 5 rows of plant BT eggplants that will serve as a pollen trap. When
we say pollen trap is that it just open the pollen from the transgenic. It is going to be
trapped by those plants, 5 rows, and then, after that, you have a space of 200 meters
surrounding the field which is the isolation distance. That means no eggplant should be
present in that particular distance because that is the isolation distance that is found to
be safe, x x x we know that Bt protein is very specific x x x effective only against
caterpillar x x x if they are eaten by other organism, they are not affected because it is
very specific. The gut of the larva is very alkaline while the gut of other insects is likely
acidic and, in that case, it does not have any harmful effect, x x x So another thing is
we are saying that it seems to be ridiculous that you are saying that honeybee is going
to fly from the fence and the size were even indicated. I would like to indicate that, that
is not the purpose of the fence. It is not to contain the insects. It is to prevent
vandalism which is quite, unfortunately, being done by other groups who are against
the technology. x x x We should be able to have our own space, our own time,
considering the given regulation. Follow them. But our experimentation not be
destroyed because it is only then that we will be able to get the valuable data that is
needed for an informed decision. Without that we will not be able to proceed and I hope
we can discuss this based on the merits of the field trial, not from any other concern
because the writ of kalikasan is about the effect of field trial in the environment.

Dr. Medina: chanRoblesvirtualLawlibrary

Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]?
He said that the "CrylAcc" is specific to caterpillars and, in fact, only some kinds of
caterpillar, some species, if you can read by chemical and by physical research
communications this is Volume 271, pages 54-58, authored by Vasquez Pardonnet,
published in 2000, publication under letter (b), "CrylAcc protoxin" binds to the mucosal
surface of the mouse small intestine. Small intestine ay mammal po iyan so, meaning,
it is a proxy animal for safety [testing] to humans because we are also mammals so,
the mice are usually the mammals 12 years ago, the data has been already there that
there is binding site, therefore it is not only specific to insects but also to mammals. x x
x he is saying that, by working on the natural BT is the same as the transformed BT it
is not true because the natural BT has 1155 "base pairs" of nucleic acids. And the
transformed GM Crop contains a fragment of that BT gene which is only half of that.
And the mechanism, by the way, x x x the natural toxin is broken into smaller pieces
inside the intestine of the insects because it is alkaline in terms of its system "ph" and
for humans acidic. So it does not work. But, because the transformed BT is already
half, almost half of the normal or natural[ly] occurring BT protein, it is already
activated and, in that case, that is the reason why there is a test and immediate effect
to non-insect, meaning, to mammal, so that is the explanation of scientist doing studies
on that aspect.

x x xx

Dr. Chakraborty: chanRoblesvirtualLawlibrary

The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second,
fear vision; x x x I will give some example. Yes, BT toxin, was it really good biological
control agent? But it is a completely different gene when you produce it into an edible
plant inside genetically. So, these are 2 different things. What will happen? We are
scared that the efficacy, the use of BT toxin as a spray, as biological control agent, will
be vanished because now there will be resistance against those in BT toxin, x x x
resistance is coming very quickly, just like antibiotic resistance, x x x The second thing,
I have asked many plant biologists this simple question, simple honest question. Do
you know any plant that can kill a bee or a moth? No! There is no way, why? Because
those are the "pollinators". Plant never kills a bee or a moth that goes against nature, x
x x So, nature, for thousands of years, farmers help select or adopt edible non-toxic
plants. And, now, with the high science we are converting them, non-toxic edible plant
into a toxic plant. So not only toxic for the human, for the root microorganisms, x x x
Those eggplants are not only for humans to consume. So human effect, we do not
know but what will be the effect? Who will mind the effect? Is it the animal which goes
through it? x x x in India, x x x farmers x x x while growing BT cotton x x x the leaves
and other they use to attract animals to eat. x x x they found suddenly one thing that
the BT cotton plants are not touched by those buffalos, those cows, those [boars], but
they can distinguish which is BT and non-BT. x x x and when their animals started
dying in some cases, they always blame, it is this animal which has eaten that BT? x x
x these are [going] against nature. Only few edible seed plants are there and we are
converting one safest plant into a poisonous and toxic plant and what is the effect on
the root microorganisms on the degrading animals and other? We do not know. That
hard thing is the tunnel vision, the confined field trial, x x x why implement this
confined field trial? Is this safe? Why do they have to do this x x x these things do good
for a normal hybrid that is something but for the gene concept we cannot follow the
same separation rules, same rules? So those are used, those separation distincts, those
parameters are used not for the gene. So, which is the safe field trial protocol for the
gene plants? We do not know. So there goes against [the] writ of kalikasan.

xxxx

Justice Antonio-Valenzuela: chanRoblesvirtualLawlibrary

How much is the increase in crop yield? x x x

Dr. Halos: chanRoblesvirtualLawlibrary

x x x The average increase yield is about 24% and that is for corn. And this data is
actually taken by our own Filipino scientists, Dr. Lluroge and Dr. Gonzales.

xxxx

Dr. Malayang: chanRoblesvirtualLawlibrary

x x x my question is for Ma'am Nina. I have not been up to date lately on the
production of corn so, you mean to say that corn production in the country has gone up
and, because of that, you are saying that 24% and the income of farmers had gone up
as well? Do you mean to say that the price of com had also gone up as a result of the
increase in the volume of com production in the Philippines?

Dr. Halos: chanRoblesvirtualLawlibrary

Well, the price is dictated by the market.

Dr.Malayang: chanRoblesvirtualLawlibrary

That is precisely the point.

Dr. Halos: chanRoblesvirtualLawlibrary

Yes.

Dr. Malayang: chanRoblesvirtualLawlibrary

x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a
technology such as GM Com or GM Talong affecting market there is also not only the
regulatory but economic regime that is attendant to it that makes adjustments. So it
may not be harmful to humans because we will not come out when we eat it but it
might be harmful to the economy of a particular agricultural crop. x x x
xxxx

Dr. Ebora: chanRoblesvirtualLawlibrary

x x x there are a lot of local studies being conducted now by entomologists from [UPLB]
and those are independent studies. And, precisely, this is to determine the effect on
natural enemies and the different insects x x x and some of those are already available,
x x x you will be able to protect the environment only if you know how to have a proper
information in making the decision. So, again, I am saying that, in field trial, you will be
generating a lot of information that you will be able to use in making a wise decision
and informed decision.

x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty
regarding butterflies and moths. Because they are not affected by BT because they are
adult insects. The only one that is affected are actually the larva, not even the pupa.
So, we would like that to be clear because it might create confusion.

The other thing in resistance, x x x even conventionally bred plant [loses] resistance
after sometime and that is the reason why we have a continuous breeding program. So,
it is a natural mechanism by an organism as mode of ad[a]potation. x x x are you
telling us that we are going to stop our breeding work because, anyway, they are going
to develop resistance. I think it is a wrong message x x x.

The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In
toxicology, you can have the effect if you have, for example, the insects, you have a
receptor. The toxin will bind into the receptor. Toxin has to fall and then the toxin has
re-insert into the membrane. If you eliminate one of those steps you do not have any
toxicity. So, that means binding by itself will not be toxicity. It is a wrong impression
that, since you have binding, there will be toxicity. It is simply wrong because, the
actuality that it should bind, it should fall then, it should insert, and it is a very common
x x x. To say that binding is equivalent to toxicity is simply not true.

The other one is natural BT toxin and activated toxin. When you were saying protoxin,
protoxin is basically the entire crystal protein. If it is already inside the gut of the insect
it has to be clipped by the purchase coming from the gut and you have it activated and
you have the toxin. So what you have in plant is already the toxin since the anther and
the toxin, and the toxin in microorganisms, the anther which are already clipped by a
purchase are the same. So, to say that they are different is actually wrong. You are
comparing protoxin and toxin.

x x x regarding the protein, x x x do you know a lot of proteins of another

characteristics and that is why you have to characterize them and you have to separate
the protein that are causing problem and protein that are not causing problem. That is
why you have allergen and, as explained by Dr. Cariño, you have to check the
sequence. x x x

xxxx

Dr. Chakraborty: chanRoblesvirtualLawlibrary

x x x the field trial wanted to basically go to the protocol. This is the efficacy, the
efficiency of the production not that much into the safety. You have to look into it
carefully that how much will get this efficacy, not the safety to that extent x x x.
Second point x x x there is this already mentioned that European Union there is no
consensus, x x x they have published and submitted the systemic list of genetically
modified crop need for new approach in risk assessment. So that is what is needed.
There is another article, how does scientific risk assessment of GM crop fit within wider
risk analysis, x x x This is genetic engineering. The production process is very precise in
selecting the inserted gene but not in its enhancement, x x x they are never looking
into it. The second thing, they do not look into that from the laboratory condition to
what is the real life situation. They do not take that into account x x x so this
assessment protocol has to be modified or changed, x x x in the IAASTD or
International Assessment of Agricultural Knowledge, Science and Technology for
Development. There is a supreme body, so many nations, so many experts, scientists x
x x. Only sustainable agricultural practice and that is the only alternative. This GM
technology is not going to help them x x x In my country also, when the BT toxin
evaluation was there, everybody was telling that this is pro-poor, this is scale neutral
so, everybody will be benefitted by that. So, we started questioning, x x x "What are
the actual economic analysis indeed? Just show me". Then, they come up with an
answer. Scale neutral means that even small farmers initially wanted BT cotton and big
farmers also wanted BT cotton. They are partisans. It is not the economic benefit
because, economically, it is not going to be beneficial so it is very much scale
dependent its benefit. So, only the big farmers, large farmers and x x x the vegetable
field you never can give separation. Chances you never can give refuge. The 1/5 of the
land given for growing pests so that you cannot do. So it cannot help technology. They
have developed this technology for partisan large scale farming to completely
automated for BT technology where no label will be there. But the failed experiments,
the contracts whose patent will be over within 2-3 years, they are testing them in our
country. So that is the bottom line.

xxxx

Chairperson: chanRoblesvirtualLawlibrary

Let us put, probably, a close to this hot tub proceeding now.

The issue that the Court is really interested to resolve is whether or not the conduct of
the field trial of BT  Talong by the respondents has violated or has threatened to violate
the right of the people to a balanced and healthful ecology. Is there absolute certainty
that it has not so violated such right. Because that is the requirement for applying or
not applying the precautionary principle, x x x

Dr. Cariño: chanRoblesvirtualLawlibrary

Yes. The answer to that is we have not violated, you know, the right of the people...

Chairperson: chanRoblesvirtualLawlibrary

But there is no absolute certainty?

Dr. Cariño: chanRoblesvirtualLawlibrary

Well, quite certain, your Honor, because we have placed all the necessary measures
and they did not show us, you know, there is no evidence of harm that has been shown
to this Court. There is no evidence at all.

Chairperson: chanRoblesvirtualLawlibrary

That is your opinion.95 ChanRoblesVirtualawlibrary

As shown by the foregoing, the hot tub hearing has not yielded any consensus on the
points of contention between the expert witnesses, i.e., the safety of Bt talong to
humans and the environment. Evidently, their opinions are based on contrasting
findings in hundreds of scientific studies conducted from the time Bt technology was
deployed in crop farming. These divergent views of local scientists reflect the continuing
international debate on GMOs and the varying degrees of acceptance of GM technology
by states especially the developed countries (USA, EU, Japan, China, Australia, etc.).

Before proceeding to the current state of global GMO research, we briefly address the
strong objection of petitioners to the CA's reliance on the research conducted by Prof.
Seralini, the French scientist whose study was published in September 2012 in Food
and Chemical Toxicology, which was criticized as a "controversial feeding study."
Seralini studied rats consuming Monsanto's Roundup Ready treated corn for two years
(using the same kind of rats prone to tumors used by Monsanto in obtaining original
approval for its product and the same methodologies, but did it for 2 years which is
longer than the 90-day experiment period done by Monsanto). The rats formed massive
cancerous tumors. All three test groups of rats, with 10 rats in each group, died more
frequently, suffered from liver problems, and had a pronounced number of tumors
specifically with grotesque mammary and testicular tumors.96

Seralini's findings created an uproar and the study was expunged from the publication
in November 2013 even though the Editor-in-Chief found no evidence of fraud or
intentional misrepresentation of the data. Seralini stood by his work and further
conducted similar laboratory experiments. Critics faulted the experimental method,
saying the number of rats studied was too small and their diet was skewed when
compared with their natural food intake. But over 300 scientists condemned the
retraction, they said that the retraction lacked scientific integrity and requested to
reinstate the study. Last June 2014, Seralini's controversial study was republished and
has passed a third peer review arranged by the journal that is republishing the
study, Environmental Sciences Europe. The republished version contains extra material
addressing criticisms of the original publication and the raw data underlying the study's
findings, and accompanied by a separate commentary by Prof. Seralini's team
describing the lobbying efforts of GMO crop supporters to force the editor of the Food
and Chemical Toxicology to retract the original publication.97

The aforesaid incident serves to underscore the crucial role of scientists in providing
relevant information for effective regulation of GMOs. There can be no argument that
"[s]ince scientific advice plays a key role in GMO regulations, scientists have a
responsibility to address and communicate uncertainty to policy makers and the
public."98
 GMOs: The Global Debate

The uncertainties generated by conflicting scientific findings or limited research is not

diminished by extensive use at present of GM technology in agriculture. The global area
of GM crops has reached over 175 million hectares in 2013, more than a hundredfold
increase from 1.7 million hectares in 1996.99 However, the worldwide debate on safety
issues involving GM foods continues.

It has been pointed out that the crux of the controversy surrounding GMOs lies in the
very nature of the technology itself. The process of combining inter-species genes,
which is called recombinant DNA technology, does not have the checks and balances
that are imposed by nature in traditional breeding. Because of this there is a risk of
genetic instability. This means that no one can make any accurate predictions about the
long-term effects of GMOs on human beings and the environment. Extensive testing in
this regard is either very expensive or impractical, and there is still a great deal about
the process that scientists do not understand.100

The basic concepts for the safety assessment of foods derived from GMOs have been
developed in close collaboration under the auspices of the Organization for Economic
Co-operation and Development (OECD) and the United Nations World Health
Organization (WHO) and Food and Agricultural Organization (FAO). The OECD's group
of experts on biosafety recommended conducting the safety assessment of a GM food
on case-by-case basis through comparison to an existing food with a long history of
safe use. Thus, the concept of substantial equivalence was developed that is widely
used by national and international agencies, including the US Food and Drug
Administration (FDA), the WHO, OECD and the FAO.101

"Substantial equivalence embodies the concept that if a new food or food component is
found to be substantially equivalent to an existing food or food component, it can be
treated in the same manner with respect to safety (i.e., the food or food component
can be concluded to be as safe as the conventional food or food component)."102 The
safety assessment of a genetically modified food is directed by the results of a
comparison between the genetically modified food and its conventional counterpart. It
follows a stepwise process aided by a series of structured questions. Factors taken into
account in the safety assessment include:
• identity;

• source;

• composition;

• effects of processing/cooking;

• transformation process;

• the recombinant DNA (e.g. stability of insertion, potential for gene transfer);

• protein expression product of the novel DNA:

• effects on function;
• potential toxicity;

• potential allergenicity;
• possible secondary effects from gene expression or the disruption of the host DNA or
metabolic pathways, including composition of critical macro, micro-nutrients, anti-
nutrients, endogenous toxicants, allergens, and physiologically active substances; and,

• potential intake and dietary impact of the introduction of the genetically modified
food.103
ChanRoblesVirtualawlibrary

The above factors are particularly pertinent to the assessment of foods derived from
genetically modified plants.104 However, the concept of substantial equivalence as the
starting point of risk assessment was criticized for being "unscientific and arbitrary" and
"intentionally vague and ill-defined to be as flexible, malleable, and open to
interpretation as possible." It is likewise argued that "comparisons are designed to
conceal significant changes resulting from genetic modifications," "the principle is weak
and misleading even when it does not apply, effectively giving producers carte
blanche", and that there is insufficiency of background information for assessing
substantial equivalence. A paper presented at a WHO workshop pointed out that the
main difficulty associated with the biosafety assessment of transgenic crops is the
unpredictable nature of transformation. This unpredictability raises the concern that
transgenic plants will behave in an inconsistent manner when grown commercially.105

The method of testing GM foods was further described as inadequate, as currently the
testing procedures consist almost exclusively of specific chemical and biochemical
analytical procedures designed to quantitate a specific nutrient or a specific toxin or
allergen. It was noted that in actual practice, the investigator compares only selected
characteristics of the genetically engineered food to those of its non-genetically
engineered counterpart. These testing schemes are viewed as completely incapable of
detecting unsuspected or unanticipated health risks that are generated by the process
of genetic engineering itself. Hence, clinical tests are recommended because only such
tests have the broad specificity and relevance to human physiology needed to detect
the wide range of allergens and toxins that might result from unexpected side-effects of
the genetic engineering process.106

In another review article, it was pointed out that since a genetic modification is aimed
at introducing new traits into organisms, the result will always be a different
composition of genes and proteins. The most reasonable interpretation therefore is that
a food derived from a GMO is considered substantially equivalent to its traditional
counterpart if the genetic modification has not resulted in intended or unintended
alterations in the composition of relevant nutrients and inherent toxicants of the
organism, and that the new genes and proteins have no adverse impact on the dietary
value of the food and do not therefore pose any harm to the consumer or the
environment. It was thus concluded that establishing substantial equivalence is not a
safety assessment in itself, but is a pragmatic tool to analyze the safety of a new food,
and hence in the testing of new foods, the latest scientific methods have to be used. All
conceivable efforts to protect consumers from health risks should thus be made, and at
the same time, consumers should be adequately informed about the real extent of risks
and hazards.107

The GMO global debate has so intensified that each side has accused the other camp of
mounting "paid advocacy" and criticizing studies adverse to their respective positions as
flawed or unscientific. Both the agri-business industry, and groups opposed to GMOs
including the organic farming industry, had utilized enormous resources and funds for
lobbying and media campaigns locally and internationally.

What appears to be highlighted in the promotion of GM crop production is the marked

reduction in the use of harmful chemical pesticides.108 The resulting increase in crop
yields grown on relatively small parcels of land is also regarded as a solution to the
problem of feeding a fast growing world population. Proponents of GM biotechnology
insist that GM foods are safe to humans and the environment based on scientific
studies. On the other hand, anti-GM activists disseminate adverse results of recent
studies confirming the health and environmental hazards of genetically engineered crop
farming. Also, some countries have maintained a firm stance against genetically
engineered crops or GM foods, such as France and Austria. Over the years, however,
accumulated evidence of the dangers of GMOs, as well as unrealized socio-economic
benefits, has been increasingly recognized by the scientific community.

That GE farming increases crop yield has been debunked by new studies proving the
contrary. In the article, "GM Crops Do Not Increase Yield Potential," the Institute for
Responsible Technology cited reports from actual field studies in different countries
revealing downward figures for Bt crops, as summarized below:
• Bt corn took longer to reach maturity and produced up to 12% lower yields than non-
GM counterparts.

• Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a
decade - with the disruptive effect of the GM transformation process accounting for
approximately half the drop in yield.

• Based on a comprehensive evaluation of yield since the introduction of commercial

GM crops, the International Assessment of Agricultural Knowledge, Science and
Technology (IAASTD) noted that GM crop yields were "highly variable" and in some
cases, "yields declined".

• The Union of Concerned Scientists' 2009 report Failure to Yield, based on published

peer-reviewed studies conducted by academic scientists using adequate controls,
concluded that genetically engineered herbicide tolerant soybeans and herbicide-
tolerant corn has not increased yields while insect-resistant corn has only marginally
improved yields. Traditional breeding outperforms genetic engineering hands down.

• In developing countries, crop failure can have severe consequences as illustrated in

India, where a large number of cotton farmers, unable to pay back high interest loans,
have committed suicide. Several investigations have implicated the unreliable
performance of Bt cotton as a major contributor.

• Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced
pest problems and no increase in yield. The 100,000 hectares planted in 1998 dropped
80% to 22,500 by 2002. As of 2004, 85% of the original Bt cotton farmers had given
up while those remaining had to be subsidized by the government. Similarly in the
US, Bt cotton yields are not necessarily consistent or more profitable.109
ChanRoblesVirtualawlibrary
GM technology is thus seen as a failure in terms of addressing food security; rather, it
supports corporate control and impedes common persons' access to adequate food. The
root cause of hunger is not a lack of food, GM critics say, but a lack of access to food.
The poor lack money to buy food and lack of land on which to grow it. It is essential to
follow sustainable traditional farming practices that keeps food production in the hands
of small-scale farmers, thereby reducing corporate control.110

As regards the existing uncertainties of potential long-term effects of the release into

the environment of GMOs, the BEETLE (Biological and Ecological Evaluation towards
Long-term Effects) study of 2009,111 made for the European Commission, analyzed
more than 700 scientific publications from all over the world about GMOs and their
potential effects on environment including biodiversity, and received contributions to
online surveys from 100 to 167 invited environmental experts. This study declared the
following uncertainties:
• increased fitness of GM plants;

• outbreeding depression after hybridization with wild relatives;

• outcrossing between related species and the fate of a transferred GM trait;

• altered flower phenology;

• altered fecundity, increasing seed (gene) flow;

• increased frequency of horizontal gene flow;

• resistance development of pests;

• effects on non-target organisms;

• effects on non-target organisms due to altered nutritional composition of the GM

plant;

• effects on non-target organisms due to accumulation of toxic compounds;

• effects on rhizo sphere microbiota;

• effects on symbiotic non-target organisms;

• changes in soil functions caused by GM traits;

• effects on biological control;

• altered use of agrochemicals;

• indirect changes in susceptibility of crops against pathogens;

• adverse effects on agro-biodiversity;

• indirect effects in fertilizer use;

• potential changes in landscape structure;

• increased production of greenhouse gases;

• increased mineral nutrient erosion and fertilizer leaching;

• altered chemical attributes of soil fraction;

• emerging of stacked events;

• the necessity of regional differentiation of risk assessments.112 ChanRoblesVirtualawlibrary

A critical observation was made on the argument that there is not enough evidence to
reject the hypothesis that GMO and GM food is safe. The fact emphasized was that
experiments designed to clarify potential adverse effects on health or the environment
are nearly absent in peer-reviewed journals. Scientific uncertainty, omitted research
areas, and lack of basic knowledge crucial to risk assessments have become apparent.
The present uncertainty warrants further research and it has been demonstrated that
there is a risk of bias relying on hypotheses that dominate mainstream science. There is
therefore a need for independent research that is without prejudice and unbiased by
economic and professional interests.113 In another article it was noted that the clinical
trials carried out to ensure that negative externalities do not affect humans and the
environment are conducted by the same private firms that created the products, raising
conflict of interest concerns.114

While existing literature on health effects of GM foods indicates that they are generally
safe, and similar conclusions have been drawn by government agencies and scientific
organizations such as FAO/WHO and Society of Toxicology, a growing number of
independent scientists have spoken strongly against such generalizations from limited
research mostly sponsored by biotech companies.

In 1999, the Open Letter from World Scientists to All Governments signed by 815

scientists from 82 countries expressed that they are extremely concerned about the
hazards of GMOs to biodiversity, food safety, human and animal health, and demanded
a moratorium on environmental releases in accordance with the precautionary principle.
They are opposed to GM crops that will intensify corporate monopoly, exacerbate
inequality and prevent the essential shift to sustainable agriculture that can provide
food security and health around the world, and called a ban on patents of life forms and
living processes which threaten food security, sanction biopiracy of indigenous
knowledge and genetic resources and violate basic human rights and dignity.115

On May 10, 2003, dozens of prominent scientists from various disciplines banded
together as an Independent Science Panel on GM at a public conference in London. On
June 15, 2003, they released a Final Report116 as their contribution to the National GM
Debate in UK. In a summary117 of the final report, these scientists declared the
following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?

1. GM crops failed to deliver promised benefits

o No increase in yields or significant reduction in herbicide and pesticide use

o United States lost an estimated $12 billion over GM crops amid worldwide rejection

o Massive crop failures of up to 100% reported in India

o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen
for investors"

2. GM crops posing escalating problems on the farm

o Transgenic lines unstable: "most cases of transgene inactivation never reach the
literature"

o Triple herbicide-tolerant volunteers and weeds emerged in North America

o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use

o Bt biopesticide traits threatening to create superweeds and bt-resistant pests

3. Extensive transgenic contamination unavoidable

o Extensive transgenic contamination found in maize landraces in remote regions of

Mexico

o 32 out of 33 commercial seed stocks found contaminated in Canada

o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional

o There can be no co-existence of GM and non-GM crops

4. GM crops not safe

o GM crops have not been proven safe: regulation was fatally flawed from the start

o The principle of 'substantial equivalence', vague and ill defined, gave companies
complete licence in claiming GM products 'substantially equivalent' to non-GM, and
hence 'safe'

5. GM food raises serious safety concerns

o Despite the paucity of credible studies, existing findings raise serious safety concerns

o 'Growth-factor-like' effects in the stomach and small intestine of young rats were
attributed to the transgenic process or the transgenic construct, and may hence be
general to all GM food

6. Dangerous gene products are incorporated into food crops

o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many
non-target insects, and some are potent immunogens and allergens for humans and
other mammals

o Food crops are increasingly used to produce pharmaceuticals and drugs, including
cytokines known to suppress the immune system, or linked to dementia, neurotoxicity
and mood and cognitive side effects; vaccines and viral sequences such as the 'spike'
protein gene of the pig coronavirus, in the same family as the SARS virus linked to the
current epidemic; and glycoprotein gene gpl20 of the AIDS virus that could interfere
with the immune system and recombine with viruses and bacteria to generate new and
unpredictable pathogens.

7. Terminator crops spread male sterility

o Crops engineered with 'suicide' genes for male sterility, promoted as a means of
preventing the spread of transgenes, actually spread both male sterility and herbicide
tolerance traits via pollen.

8. Broad-spectrum herbicides highly toxic to humans and other species

o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that
currently account for 75% of all GM crops worldwide, are both systemic metabolic
poisons

o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and

haematological toxicities, and birth defects in humans and mammals; also toxic to
butterflies and a number of beneficial insects, to larvae of clams and
oysters, Daphnia and some freshwater fish, especially the rainbow trout; it inhibits
beneficial soil bacteria and fungi, especially those that fix nitrogen.

o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and
disturbances to many body functions have been reported after exposures at normal use
levels; glyphosate exposure nearly doubled the risk of late spontaneous abortion, and
children born to users of glyphosate had elevated neurobehavioral defects; glyphosate
retards development of the foetal skeleton in laboratory rats, inhibits the synthesis of
steroids, and is genotoxic in mammals, fish and frogs; field dose exposure of
earthworms caused at least 50 percent mortality and significant intestinal damage
among surviving worms; Roundup (Monsanto's formulation of glyphosate) caused cell
division dysfunction that may be linked to human cancers.

9. Genetic engineering creates super-viruses

o The most insidious dangers of genetic engineering are inherent to the process; it
greatly enhances the scope and probability of horizontal gene transfer and
recombination, the main route to creating viruses and bacteria that cause disease
epidemics.

o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of

minutes in the laboratory millions of recombinant viruses that have never existed in
billions of years of evolution
o Disease-causing viruses and bacteria and their genetic material are the predominant
materials and tools of genetic engineering, as much as for the intentional creation of
bio-weapons.

10. Transgenic DNA in food taken up by bacteria in human gut

o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the
gut of human volunteers; antibiotic resistance marker genes can spread from
transgenic food to pathogenic bacteria, making infections very difficult to treat.

11. Transgenic DNA and cancer

o Transgenic DNA known to survive digestion in the gut and to jump into the genome of
mammalian cells, raising the possibility for triggering cancer

o Feeding GM products such as maize to animals may carry risks, not just for the
animals but also for human beings consuming the animal products

12. CaMV 35S promoter increases horizontal gene transfer

o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be
especially unstable and prone to horizontal gene transfer and recombination, with all
the attendant hazards: gene mutations due to random insertion, cancer, re-activation
of dormant viruses and generation of new viruses.

13. A history of misrepresentation and suppression of scientific evidence

o There has been a history of misrepresentation and suppression of scientific evidence,

especially on horizontal gene transfer. Key experiments failed to be performed, or were
performed badly and then misrepresented. Many experiments were not followed up,
including investigations on whether the CaMV 35S promoter is responsible for the
'growth-factor-like' effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing
escalating problems on the farm. Transgenic contamination is now widely
acknowledged to be unavoidable, and hence there can be no co-existence of
GM and non-GM agriculture. Most important of all, GM crops have not been
proven safe. On the contrary, sufficient evidence has emerged to raise serious
safety concerns, that if ignored could result in irreversible damage to health
and the environment. GM crops should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven
beneficial in all aspects relevant to health and the environment. In addition, they bring
food security and social and cultural well being to local communities everywhere. There
is an urgent need for a comprehensive global shift to all forms of sustainable
agriculture.118

In 2008, a Global Report119 was released by the International Assessment of Agricultural

Knowledge, Science and Technology for Development (IAASTD), a three-year
international collaborative effort (2005-2007) developed out of a consultative process
involving 900 participants and 110 countries from all over the world. This global
initiative assessed agricultural knowledge, science and technology (AKST) in relation to
meeting development and sustainability goals of (1) reducing hunger and poverty; (2)
improving nutrition, health and rural livelihoods; and (3) facilitating social and
environmental sustainability. The report concluded that a radical transformation of the
world's food and farming systems - especially the policies and institutions that affect
them - is necessary if we are to overcome converging economic and environmental
crises and feed the world sustainably. It also warned that technologies such as high-
yielding crop varieties, agrochemicals and mechanization have primarily benefited the
better-resourced groups in society and transnational corporations, rather than the most
vulnerable ones. In general, the IAASTD found little evidence to support a conclusion
that modern biotechnologies are well suited to meeting the needs of small-scale and
subsistence farmers, particularly under the increasingly unpredictable environmental
and economic conditions tha they face.120

More recently, in 2013, the European Network of Scientists for Social and
Environmental Responsibility (ENSSER), an international group of more than 90
scientists, academics and physicians, released a statement that there is no scientific
consensus on the safety of GM foods and crops.121 The statement122 is herein
reproduced:
10/21/13
Statement: No scientific consensus on GMO safety

As scientists, physicians, academics, and experts from disciplines relevant to the

scientific, legal, social and safety assessment aspects of genetically modified organisms
(GMOs), we strongly reject claims by GM seed developers and some scientists,
commentators, and journalists that there is a "scientific consensus" on GMO safety and
that the debate on this topic is "over".

We feel compelled to issue this statement because the claimed consensus on GMO
safety does not exist. The claim that it does exist is misleading and misrepresents the
currently available scientific evidence and the broad diversity of opinion among
scientists on this issue. Moreover, the claim encourages a climate of complacency that
could lead to a lack of regulatory and scientific rigour and appropriate caution,
potentially endangering the health of humans, animals, and the environment.

Science and society do not proceed on the basis of a constructed consensus, as current
knowledge is always open to well-founded challenge and disagreement. We endorse the
need for further independent scientific inquiry and informed public discussion on GM
product safety and urge GM proponents to do the same.

Some of our objections to the claim of scientific consensus are listed below.

1. There is no consensus on GM food safety

Regarding the safety of GM crops and foods for human and animal health, a
comprehensive review of animal feeding studies of GM crops found "An equilibrium in
the number [of] research groups suggesting, on the basis of their studies, that a
number of varieties of GM products (mainly maize and soybeans) are as safe and
nutritious as the respective conventional non-GM plant, and those raising still serious
concerns". The review also found that most studies concluding that GM foods were as
safe and nutritious as those obtained by conventional breeding were "performed by
biotechnology companies or associates, which are also responsible [for]
commercializing these GM plants".

A separate review of animal feeding studies that is often cited as showing that GM
foods are safe included studies that found significant differences in the GM-fed animals.
While the review authors dismissed these findings as not biologically significant, the
interpretation of these differences is the subject of continuing scientific debate and no
consensus exists on the topic.

Rigorous studies investigating the safety of GM crops and foods would normally involve
animal feeding studies in which one group of animals is fed GM food and another group
is fed an equivalent non-GM diet. Independent studies of this type are rare, but when
such studies have been performed, some have revealed toxic effects or signs of toxicity
in the GM-fed animals. The concerns raised by these studies have not been followed up
by targeted research that could confirm or refute the initial findings.

The lack of scientific consensus on the safety of GM foods and crops is underlined by
the recent research calls of the European Union and the French government to
investigate the long-term health impacts of GM food consumption in the light of
uncertainties raised by animal feeding studies. These official calls imply recognition of
the inadequacy of the relevant existing scientific research protocols. They call into
question the claim that existing research can be deemed conclusive and the scientific
debate on biosafety closed.

2. There are no epidemiological studies investigating potential effects of GM

food consumption on human health

It is often claimed that "trillions of GM meals" have been eaten in the US with no ill
effects. However, no epidemiological studies in human populations have been carried
out to establish whether there are any health effects associated with GM food
consumption. As GM foods are not labelled in North America, a major producer and
consumer of GM crops, it is scientifically impossible to trace, let alone study, patterns of
consumption and their impacts. Therefore, claims that GM foods are safe for human
health based on the experience of North American populations have no scientific basis.

3. Claims that scientific and governmental bodies endorse GMO safety are
exaggerated or inaccurate

Claims that there is a consensus among scientific and governmental bodies that GM
foods are safe, or that they are no more risky than non-GM foods, are false.

For instance, an expert panel of the Royal Society of Canada issued a report that was
highly critical of the regulatory system for GM foods and crops in that country. The
report declared that it is "scientifically unjustifiable" to presume that GM foods are safe
without rigorous scientific testing and that the "default prediction" for every GM food
should be that the introduction of a new gene will cause "unanticipated changes" in the
expression of other genes, the pattern of proteins produced, and/or metabolic activities.
Possible outcomes of these changes identified in the report included the presence of
new or unexpected allergens.
A report by the British Medical Association concluded that with regard to the long-term
effects of GM foods on human health and the environment, "many unanswered
questions remain" and that "safety concerns cannot, as yet, be dismissed completely on
the basis of information currently available". The report called for more research,
especially on potential impacts on human health and the environment.

Moreover, the positions taken by other organizations have frequently been highly
qualified, acknowledging data gaps and potential risks, as well as potential benefits, of
GM technology. For example, a statement by the American Medical Association's
Council on Science and Public Health acknowledged "a small potential for adverse
events ... due mainly to horizontal gene transfer, allergenicity, and toxicity" and
recommended that the current voluntary notification procedure practised in the US prior
to market release of GM crops be made mandatory. It should be noted that even a
"small potential for adverse events" may turn out to be significant, given the
widespread exposure of human and animal populations to GM crops.

A statement by the board of directors of the American Association for the Advancement
of Science (AAAS) affirming the safety of GM crops and opposing labelling cannot be
assumed to represent the view of AAAS members as a whole and was challenged in an
open letter by a group of 21 scientists, including many long-standing members of the
AAAS. This episode underlined the lack of consensus among scientists about GMO
safety.

4. EU research project does not provide reliable evidence of GM food safety

An EU research project has been cited internationally as providing evidence for GM crop
and food safety. However, the report based on this project, "A Decade of EU-Funded
GMO Research", presents no data that could provide such evidence, from long-term
feeding studies in animals.

Indeed, the project was not designed to test the safety of any single GM food, but to
focus on "the development of safety assessment approaches". Only five published
animal feeding studies are referenced in the SAFOTEST section of the report, which is
dedicated to GM food safety. None of these studies tested a commercialised GM food;
none tested the GM food for long-term effects beyond the subchronic period of 90 days;
all found differences in the GM-fed animals, which in some cases were statistically
significant; and none concluded on the safety of the GM food tested, let alone on the
safety of GM foods in general. Therefore the EU research project provides no evidence
for sweeping claims about the safety of any single GM food or of GM crops in general.

5. List of several hundred studies does not show GM food safety

A frequently cited claim published on an Internet website that several hundred studies
"document the general safety and nutritional wholesomeness of GM foods and feeds" is
misleading. Examination of the studies listed reveals that many do not provide evidence
of GM food safety and, in fact, some provide evidence of a lack of safety. For
example: chanRoblesvirtualLawlibrary

• Many of the studies are not toxicological animal feeding studies of the type that can
provide useful information about health effects of GM food consumption. The list
includes animal production studies that examine parameters of interest to the food and
agriculture industry, such as milk yield and weight gain; studies on environmental
effects of GM crops; and analytical studies of the composition or genetic makeup of the
crop.

• Among the animal feeding studies and reviews of such studies in the list, a substantial
number found toxic effects and signs of toxicity in GM-fed animals compared with
controls. Concerns raised by these studies have not been satisfactorily addressed and
the claim that the body of research shows a consensus over the safety of GM crops and
foods is false and irresponsible.

• Many of the studies were conducted over short periods compared with the animal's
total lifespan and cannot detect long-term health effects.

We conclude that these studies, taken as a whole, are misrepresented on the Internet
website as they do not "document the general safety and nutritional wholesomeness of
GM foods and feeds". Rather, some of the studies give serious cause for concern and
should be followed up by more detailed investigations over an extended period of time.

6. There is no consensus on the environmental risks of GM crops

Environmental risks posed by GM crops include the effects of Bt insecticidal crops on

non-target organisms and effects of the herbicides used in tandem with herbicide-
tolerant GM crops.

As with GM food safety, no scientific consensus exists regarding the environmental risks
of GM crops. A review of environmental risk assessment approaches for GM crops
identified shortcomings in the procedures used and found "no consensus" globally on
the methodologies that should be applied, let alone on standardized testing procedures.

Some reviews of the published data on Bt crops have found that they can have adverse
effects on non-target and beneficial organisms - effects that are widely neglected in
regulatory assessments and by some scientific commentators. Resistance to Bt toxins
has emerged in target pests, and problems with secondary (non-target) pests have
been noted, for example, in Bt cotton in China.

Herbicide-tolerant GM crops have proved equally controversial. Some reviews and

individual studies have associated them with increased herbicide use, the rapid spread
of herbicide-resistant weeds, and adverse health effects in human and animal
populations exposed to Roundup, the herbicide used on the majority of GM crops.

As with GM food safety, disagreement among scientists on the environmental risks of

GM crops may be correlated with funding sources. A peer-reviewed survey of the views
of 62 life scientists on the environmental risks of GM crops found that funding and
disciplinary training had a significant effect on attitudes. Scientists with industry funding
and/or those trained in molecular biology were very likely to have a positive attitude to
GM crops and to hold that they do not represent any unique risks, while publicly-funded
scientists working independently of GM crop developer companies and/or those trained
in ecology were more likely to hold a "moderately negative" attitude to GM crop safety
and to emphasize the uncertainty and ignorance involved. The review authors
concluded, "The strong effects of training and funding might justify certain institutional
changes concerning how we organize science and how we make public decisions when
new technologies are to be evaluated."

7. International agreements show widespread recognition of risks posed by

GM foods and crops

The Cartagena Protocol on Biosafety was negotiated over many years and implemented
in 2003. The Cartagena Protocol is an international agreement ratified by 166
governments worldwide that seeks to protect biological diversity from the risks posed
by GM technology. It embodies the Precautionary Principle in that it allows signatory
states to take precautionary measures to protect themselves against threats of damage
from GM crops and foods, even in case of a lack of scientific certainty.

Another international body, the UN's Codex Alimentarius, worked with scientific experts
for seven years to develop international guidelines for the assessment of GM foods and
crops, because of concerns about the risks they pose. These guidelines were adopted
by the Codex Alimentarius Commission, of which over 160 nations are members,
including major GM crop producers such as the United States.

The Cartagena Protocol and Codex share a precautionary approach to GM crops and
foods, in that they agree that genetic engineering differs from conventional breeding
and that safety assessments should be required before GM organisms are used in food
or released into the environment.

These agreements would never have been negotiated, and the implementation
processes elaborating how such safety assessments should be conducted would not
currently be happening, without widespread international recognition of the risks posed
by GM crops and foods and the unresolved state of existing scientific understanding.

Concerns about risks are well-founded, as has been demonstrated by studies on some
GM crops and foods that have shown adverse effects on animal health and non-target
organisms, indicated above. Many of these studies have, in fact, fed into the
negotiation and/or implementation processes of the Cartagena Protocol and Codex. We
support the application of the Precautionary Principle with regard to the release and
transboundary movement of GM crops and foods.

Conclusion

In the scope of this document, we can only highlight a few examples to illustrate
that the totality of scientific research outcomes in the field of GM crop safety is
nuanced, complex, often contradictory or inconclusive, confounded by researchers'
choices, assumptions, and funding sources, and in general, has raised more questions
than it has currently answered.

Whether to continue and expand the introduction of GM crops and foods into the human
food and animal feed supply, and whether the identified risks are acceptable or not, are
decisions that involve socioeconomic considerations beyond the scope of a narrow
scientific debate and the currently unresolved biosafety research agendas. These
decisions must therefore involve the broader society. They should, however, be
supported by strong scientific evidence on the long-term safety of GM crops and foods
for human and animal health and the environment, obtained in a manner that is
honest, ethical, rigorous, independent, transparent, and sufficiently diversified to
compensate for bias.

Decisions on the future of our food and agriculture should not be based on misleading
and misrepresentative claims that a "scientific consensus" exists on GMO safety.123 ChanRoblesVirtualawlibrary

One of the most serious concerns raised against GM crops is that expressed by one of
our political analysts now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations
and marginalize small farmers. As the statement x x x of the 81 members of the World
Future Council put it, "While profitable to the few companies producing them, GMO
seeds reinforce a model of farming that undermines sustainability of cash-poor farmers,
who make up most of the world's hungry. GMO seeds continue farmers' dependency on
purchased seed and chemical inputs. The most dramatic impact of such dependency is
in India, where 270,000 farmers, many trapped in debt for buying seeds and chemicals,
committed suicide between 1995 and 2012."124 ChanRoblesVirtualawlibrary

In sum, current scientific research indicates that the biotech industry has not
sufficiently addressed the uncertainties over the safety of GM foods and crops.

Bt Brinjal Controversy in India

Brinjal (eggplant) is a major crop and a popular component of food diet in India, an

important ingredient in Ayurvedic medicine, and is of special value for the treatment of
diabetes and liver problems. The attempted commercial propagation of Bt brinjal
spawned intense debate and suffered obstacles due to sustained opposition from local
scientists, academicians and non-government organizations in India.

As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the

origin of eggplant's diversity, said that if the new technology is adopted, decrease in
the use of insecticides, substantial increase in crop yields and greater food availability,
can be expected. But opponents argued, alongside food safety concerns, that there is a
potential for toxic effects on populations of non-target invertebrates, and potential
replacement of traditional landraces as farmers may move towards cultivation of a
restricted number of GE forms. In addition to these issues, there was the additional
concern raised over the transfer of Bt transgenes to non-GE brinjal or its wild relatives,
and the consequences for plant biodiversity.125

Writ petitions were lodged before the Supreme Court of India to stop the release into
the environment of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The
Court formed a Technical Evaluation Committee (TEC) composed of experts nominated
by the parties to undertake a comprehensive evaluation of the feasibility of allowing the
open field trials of Bt brinjal and submit a final report, and in the event the TEC is
unable to submit said final report, it was directed instead to submit an interim report
within the period set by the Court on the following issue: Whether there should or
should not be any ban, partial or otherwise, upon conducting of open field tests of the
GMOs? In the event open field trials are permitted, what protocol should be followed
and conditions, if any, that may be imposed by the Court for implementation of open
field trials." The Court also directed that the TEC would be free to review report or
studies authored by national and international scientists if it was necessary.

In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its
findings, all field trials should be stopped until certain conditions have been met. A Final
Report126 was eventually submitted to the Court which noted weaknesses in the
conditions imposed by the regulatory agencies for conduct of field trials, as follows: 1)
post-release monitoring, an important aspect of environmental and health safety (if the
GE crop is consumed as food) is not given adequate attention; 2) the importance of
need and socio-economic impact assessment of GM products as one of the criteria that
should be applied in the evaluation at an early stage; and 3) need for additional tests
not currently done such as long-term feeding studies for assessment of chronic and
intergeneration toxicity in small animals, genomewide expression analysis in the
toxicity studies to screen for possible unintended effects on host physiology. It was
recommended that a moratorium on field trials of herbicide tolerant crops until the
issue had been examined by an independent committee, and also noted that said
technology may not be suitable in the Indian socio-economic context due to possible
impact of extensive use of broad spectrum herbicides on the environmental biodiversity
and smaller average farm size. Examination of the safety dossier of Bt brinjal indicated
certain concerns on the data, which had not been addressed in the course of regulatory
testing leading to approval due to lack of full-time qualified personnel for the purpose.
Overall, it was found that the quality of information in several of the applications is far
below what would be expected and required for rigorous evaluation by a regulatory
body and is unlikely to meet international regulatory guidelines.

On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible
under certain conditions for CrylAc protein to kill insects that lack the cadherin receptor.
Also, while it is generally believed that Cry toxins do not exert an effect on vertebrates
as vertebrates lack the receptor for Cry toxins, two studies (one in mice and the other
in cows) have provided evidence that Cry proteins can bind to mammalian intestinal
epithelial cells. The report also discussed the emergence of resistance in insect pests,
health and food safety of Bt transgenics, and herbicide tolerant crops and their effect
on biodiversity and the environment. Specific recommendations were made to address
the foregoing issues and the report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications
and potential for negative impact than for other species. To justify this, there needs to
be extraordinarily compelling reasons and only when other choices are not available.
GM crops that offer incremental advantages or solutions to specific and limited
problems are not sufficient reasons to justify such release. The TEC did not find any
such compelling reasons under the present conditions. The fact is that unlike the
situation in 1960s there is no desperate shortage of food and in fact India is in a
reasonably secure position. The TEC therefore recommends that release of GM crops for
which India is a centre of origin or diversity should not be allowed.127
ChanRoblesVirtualawlibrary

In 2010, responding to large-scale opposition to Bt brinjal's introduction in India,

former environment minister Jairam Ramesh placed an indefinite moratorium on its
further field testing. This was done after discussions with scientists, both pro and anti-
GM crops, activists and farmers across the country.

GMO Field Trials in the Philippines

As earlier mentioned, the conduct of field trials for GE plants and crops in our country is
governed primarily by DAO 08-2002 and implemented by the DA through the BPI.
Petitioners EMB, BPI and FPA all maintain there was no unlawful deviation from its
provisions and that respondents so far failed to present evidence to prove their claim
that Bt talong field trials violated environmental laws and rules.

Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an
advisory body, was tasked to "evaluate the potential risks of the proposed activity to
human health and the environment based on available scientific and technical
information." Under DA Special Order 241 and 384 (2002) the STRP membership was
expanded to include "an independent pool of experts...tapped by the [BPI] to evaluate
the potential risks of the proposed release of GMOs for field testing, propagation, food,
feed to human health and the environment based on available scientific and technical
information."

DAO 08-2002 supplements the existing guidelines on the importation and release into
the environment of products of modern biotechnology by institutionalizing existing
operational arrangements between DA-BPI and the NCBP. Effective July 2003,
applications for field test are received and processed by DA-BPI, but the approval
process for projects on contained use remains under the supervision of NCBP. A
mandatory risk assessment of GM plant and plant products is required prior to
importation or release into the environment. Experiments must first be conducted
under contained conditions, then the products are tested in field trials the product is
reviewed for commercial release. Risk assessment is done according to the principles
provided for by the Cartagena Protocol on Biosafety. Risk assessment is science-based,
carried out on a case by case manner, targets a specific crop and its transformation
event, adopts the concept of substantial equivalence in identifying risk, allows review,
and provides that the absence of scientific information or consensus should not be
interpreted to indicate the absence or presence and level of risk.128

Greenpeace, however, claims there is actually only a committee of three to five

members which conducts the risk assessment, and is aided by an informal group, the
DA's Biotech Advisory Team (BAT), of representatives from government biotech
regulatory agencies: BPI, BAI, FPA, DENR, DOH and DOST. It also assails the
government regulatory agencies for their refusal to open to scrutiny the names and
qualifications of those incharge of regulation and risk assessment, and for allowing the
entry and use of all GMO applications requested by multinational companies.129

It must be stressed that DAO 08-2002 and related DA orders are not the only legal
bases for regulating field trials of GM plants and plant products. EO 514130 establishing
the National Biosafety Framework (NBF) clearly provides that the NBF shall apply to the
development, adoption and implementation of all biosafety policies, measures and
guidelines and in making biosafety decisions concerning the research, development,
handling and use, transboundary movement, release into the environment and
management of regulated articles.131 The objective of the NBF is to "[e]nhance the
decision-making system on the application of products of modern biotechnology to
make it more efficient, predictable, effective, balanced, culturally appropriate, ethical,
transparent and participatory".132 Thus, "the socio-economic, ethical, and cultural
benefit and risks of modern biotechnology to the Philippines and its citizens, and in
particular on small farmers, indigenous peoples, women, small and medium enterprises
and the domestic scientific community, shall be taken into account in implementing the
NBF."133 The NBF also mandates that decisions shall be arrived at in a transparent and
participatory manner, recognizing that biosafety issues are best handled with the
participation of all relevant stakeholders and organizations who shall have appropriate
access to information and the opportunity to participate responsibly and in an
accountable manner in biosafety decision-making process.134

Most important, the NBF requires the use of precaution, as provided in Section 2.6
which reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992
and the relevant provisions of the Cartagena Protocol on Biosafety, in particular Articles
1, 10 (par. 6) and 11 (par. 8), the precautionary approach shall guide biosafety
decisions. The principles and elements of this approach are hereby implemented
through the decision-making system in the NBF;
The NBF contains general principles and minimum guidelines that the concerned
agencies are expected to follow and which their respective rules and regulations must
conform with. In cases of conflict in applying the principles, the principle of protecting
public interest and welfare shall always prevail, and no provision of the NBF shall be
construed as to limit the legal authority and mandate of heads of departments and
agencies to consider the national interest and public welfare in making biosafety
decisions.135

As to the conduct of risk assessment to identify and evaluate the risks to human health
and the environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed
when performing a RA to determine whether a regulated article poses significant risks
to human health and the environment: chanRoblesvirtualLawlibrary

5.2.1.1 The RA shall be carried out in a scientifically sound and transparent manner based on
available scientific and technical information. The expert advice of and guidelines
developed by, relevant international organizations, including intergovernmental
bodies, and regulatory authorities of countries with significant experience in the
regulatory supervision of the regulated article shall be taken into account in the
conduct of risk assessment;
   
5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be interpreted as
indicating a particular level of risk, an absence of risk, or an acceptable risk;
   
5.2.1.3 The identified characteristics of a regulated article and its use which have the
potential to pose significant risks to human health and the environment shall be
compared to those presented by the non-modified organism from which it is derived
and its use under the same conditions;
   
5.2.1.4 The RA shall be carried out case-by-case and on the basis of transformation event.
The required information may vary in nature and level of detail from case to case
 depending on the regulated article concerned, its intended use and the receiving
environment; and,
   
5.2.1.5 If new information on the regulated article and its effects on human health and the
environment becomes available, and such information is relevant and significant, the
RA shall be readdressed to determine whether the risk has changed or whether there
is a need to amend the risk management strategies accordingly.

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments

and agencies shall be in accordance with the policies and standards on RA issued by the
NCBP. Annex III of the Cartagena Protocol shall also guide RA. As appropriate, such
department and agencies may issue their own respective administrative issuances
establishing the appropriate RA under their particular jurisdictions.

5.3 Role of Environmental Impact Assessment. - The application of the EIA System

to biosafety decisions shall be determined by concerned departments and
agencies subject to the requirements of law and the standards set by the
NCBP. Where applicable and under the coordination of the NCBP, concerned
departments and agencies shall issue joint guidelines on the matter. (Emphasis
supplied)
Considering the above minimum requirements under the most comprehensive national
biosafety regulation to date, compliance by the petitioners with DAO 08-2002 is not
sufficient. Notably, Section 7 of the NBF mandates a more transparent, meaningful and
participatory public consultation on the conduct of field trials beyond the posting and
publication of notices and information sheets, consultations with some residents and
government officials, and submission of written comments, provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION

The concerned government departments and agencies, in developing and adopting

biosafety policies, guidelines and measures and in making biosafety decisions, shall
promote, facilitate, and conduct public awareness, education, meaningful, responsible
and accountable participation. They shall incorporate into their respective
administrative issuances and processes best practices and mechanisms on public
participation in accordance with the following guidelines: chanRoblesvirtualLawlibrary

7.1 Scope of Public Participation. - Public participation shall apply to all stages of
the biosafety decision-making process from the time the application is
received. For applications on biotechnology activities related to research and
development, limited primarily for contained use, notice of the filing of such application
with the NCBP shall be sufficient, unless the NCBP deems that public interest and
welfare requires otherwise.

7.2 Minimum Requirements of Public Participation. - In conducting public

participation processes, the following minimum requirements shall be followed: chanRoblesvirtualLawlibrary

7.2.1 Notice to all concerned stakeholders, in a language understood by them and

through media to which they have access. Such notice must be adequate, timely, and
effective and posted prominently in public places in the areas affected, and in the case
of commercial releases, in the national print media; in all cases, such notices must be
posted electronically in the internet;

7.2.2 Adequate and reasonable time frames for public participation procedures. Such
procedures should allow relevant stakeholders to understand and analyze the benefits
and risks, consult with independent experts, and make timely interventions. Concerned
departments and agencies shall include in their appropriate rules and regulations
specific time frames for their respective public participation processes, including setting
a minimum time frame as may be appropriate;

7.2.3 Public consultations, as a way to secure wide input into the decisions that are to
be made. These could include formal hearings in certain cases, or solicitation of public
comments, particularly where there is public controversy about the proposed activities.
Public consultations shall encourage exchanges of information between applicants and
the public before the application is acted upon. Dialogue and consensus-building among
all stakeholders shall be encouraged. Concerned departments and agencies shall specify
in their appropriate rules and regulations the stages when public consultations are
appropriate, the specific time frames for such consultations, and the circumstances
when formal hearings will be required, including guidelines to ensure orderly
proceedings. The networks of agricultural and fisheries councils, indigenous
peoples and community-based organizations in affected areas shall be utilized;

7.2.4 Written submissions. Procedures for public participation shall include mechanisms

that allow public participation in writing or through public hearings, as
appropriate, and which allow the submission of any positions, comments,
information, analyses or opinions. Concerned departments and agencies shall
include in their appropriate rules and regulations the stages when and the process to be
followed for submitting written comments; and,

7.2.5 Consideration of public concerns in the decision-making phase following

consultation and submission of written comments. Public concerns as reflected through
the procedures for public participation shall be considered in making the decision. The
public shall be informed of the final decision promptly, have access to the decision, and
shall be provided with the reasons and considerations resulting in the decision, upon
request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002
and no real effort was made to operationalize the principles of the NBF in the conduct of
field testing of Bt talong. The failure of DAO 08-2002 to accommodate the NBF means
that the Department of Agriculture lacks mechanisms to mandate applicants to comply
with international biosafety protocols. Greenpeace's claim that BPI had approved nearly
all of the applications for GMO field trials is confirmed by the data posted on their
website. For these reasons, the DAO 08-2002 should be declared invalid.

Significantly, while petitioners repeatedly argued that the subject field trials are not
covered by the EIS law, EO 514 clearly mandates that concerned departments and
agencies, most particularly petitioners DENR-EMB, BPI and FPA, make a determination
whether the EIS system should apply to the release of GMOs into the environment and
issue joint guidelines on the matter.

The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and
indirect impacts of a project on the biophysical and human environment and ensuring
that these impacts are addressed by appropriate environmental protection and
enhancement measures. It "aids proponents in incorporating environmental
considerations in planning their projects as well as in determining the environment's
impact on their project." There are six stages in the regular EIA process. The proponent
initiates the first three stages while the EMB takes the lead in the last three stages.
Public participation is enlisted in most stages.136

Even without the issuance of EO 514, GMO field testing should have at least been
considered for EIA under existing regulations of petitioner EMB on new and emerging
technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the
groups, e.g. projects using new processes/technologies with uncertain impacts.
This is an interim category - unclassified projects will eventually be classified into their
appropriate groups after EMB evaluation.137 (Emphasis supplied)
All government agencies as well as private corporations, firms and entities who intend
to undertake activities or projects which will affect the quality of the environment are
required to prepare a detailed Environmental Impact Statement (EIS) prior to
undertaking such development activity.138 An environmentally critical project (ECP) is
considered by the EMB as "likely to have significant adverse impact that may be
sensitive, irreversible and diverse" and which "include activities that have significant
environmental consequences."139 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 the category of ECP.

During the hearing at the CA, Arty. Segui of the EMB was evasive in answering
questions on whether his office undertook the necessary evaluation on the possible
environmental impact of Bt talong field trials subject of this case and the release of
GMOs into the environment in general. While he initially cited lack of budget and
competence as reasons for their inaction, he later said that an amendment of the law
should be made since projects involving GMOs are not covered by Proclamation No.
2146140. Pertinent portions of his testimony before the CA are herein quoted:
xxxx

ATTY. SORIANO: chanRoblesvirtualLawlibrary

Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under
the PEISS law. Granting Mr. Witness that a certain project or undertaking is not
classified as environmentally critical project, how would you know that
the BT talong field testing is not located in an environmentally critical area this time?

ATTY. ACANTILADO: chanRoblesvirtualLawlibrary

Objection Your Honor, argumentative.

   
HON. J. DICDICAN: chanRoblesvirtualLawlibrary

Witness may answer.

ATTY. SEGUI: chanRoblesvirtualLawlibrary

As far as my recollection can serve me, in a reading of the Petition itself, somewhere
along the Petition, petitioners never alleged that the project, the subject matter rather
of this instant petition, is within an environmentally critical project.

ATTY. SORIANO: chanRoblesvirtualLawlibrary

Your Honor the Witness did not answer the question.

   
HON. J. DICDICAN: chanRoblesvirtualLawlibrary

Please answer the question.

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Personally I have conferred with our personnel from the Environmental Impact
Assessment Division and they intimated to me that the locations of the project, rather
of this subject matter of the instant petition, not within any declared environmentally
critical area.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

In other words, you are aware of the area where the BT Talong  experiments are being
conducted. Is that the premise?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Judging from previous discussions we had . . . judging from the Petition, and showing it
to the as I said personnel from Environmental Impact Division at our office, as I said
they intimated to me that it's not within declared environmentally critical area.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

That being the case, you did not act further? [You] did not make any further
evaluation, on whether the activity has an environmental impact? Is that the
correct premise?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of
the legal aspects of the Bureau's affairs. But when it comes to highly technical matters,
I have to rely on our technical people especially on environmentally impact assessment
matters.

ATTY. SORIANO: chanRoblesvirtualLawlibrary

I will just ask him another question Your Honors. So did the Department of Agriculture
Mr. Witness coordinate with your Office with regard the field testing of BT  Talong?
ATTY. SEGUI: chanRoblesvirtualLawlibrary

I'm sorry Your Honors I am not privy to that personally.

ATTY. SORIANO: chanRoblesvirtualLawlibrary

Mr. Witness, the question is did the Department of Agriculture coordinate with your
Office with regard the field testing of BT Talong  as required under the law?

ATTY. SORIANO: chanRoblesvirtualLawlibrary

Already answered your Honor, objection.

HON. J. DICDICAN: chanRoblesvirtualLawlibrary

The witness in effect said he does not know, he's not in a position to answer.

xxxx

ATTY. SORIANO: chanRoblesvirtualLawlibrary

Did the EMB Mr. Witness perform such evaluation in the case of BT Talong  field
testing?

ATTY. ACANTILADO: chanRoblesvirtualLawlibrary

Your Honor that is speculative, the witness has just answered a while ago that the EMB
has not yet received any project with respect to that Your Honor. So the witness would
not be in a position to answer that Your Honors.

HON. J. DICDICAN: chanRoblesvirtualLawlibrary

Lay the basis first.

ATTY. SORIANO: chanRoblesvirtualLawlibrary

The earlier answer Your Honor of the witness is in general terms. My second question,
my follow-up question is specifically Your Honor the BT  talong  field testing.

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Well from where I sit Your Honors, it would appear that it could be categorized as
unclassified...

HON. J. VALENZUELA: chanRoblesvirtualLawlibrary

Unclassified?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

As the section will initially provide. But there must be prior ... may I continue to harp
on that Your Honors. There must be prior ... let's say conditions ... there must be prior
evaluation and assessment just the same by the EMB.

HON. J. VALENZUELA: chanRoblesvirtualLawlibrary

Prior to what Mr. Witness?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

We will categorize it as unclassified but there must be ... (interrupted)

HON. J. VALENZUELA: chanRoblesvirtualLawlibrary

So initially you call it unclassified and then you say prior to...

ATTY. SEGUI: chanRoblesvirtualLawlibrary

I'm sorry Your Honors, may I reform.

HON. J. VALENZUELA: chanRoblesvirtualLawlibrary

Yes please.

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Initially they will be considered/categorized as unclassified but there will be hopefully a

subsequent evaluation or assessment of the matter to see if we also have the resources
and expertise if it can be finally unclassified. I should say should fall within the fairview
of the system, the EIA system. In other words, it's in a sort of how do you say that it's
in a state of limbo. So it's unclassified, that's the most we can do in the meantime.

HON. J. VALENZUELA: chanRoblesvirtualLawlibrary

And Mr. Witness you also said that the agency the EMB is without the capability to
evaluate the projects such as this one in particular?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Yes, Your Honors as of now.

HON. J. VALENZUELA: chanRoblesvirtualLawlibrary

So therefore, when you say initially it's unclassified and then you're saying
afterwards the EMB needs evaluation but then you're saying the EMB is
without any capability to evaluate then what happens?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the
EMB that's how we interpret it. But the truth of the matter is with all
pragmatism we don't have the resources as of now and expertise to do just
that.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

So in other words you admit that the EMB is without any competence to make
a categorical or initial examination of this uncategorized activity, is that what
you mean?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

It would appear, yes.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

What do you think would prompt your office to make such initial examination?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Well executive fee at the usual dictates ... the Secretary of the DENR probably even by
request of the parties concerned.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

So that means you are waiting for a request? Are you not? Proactive in this activity in
performing your obligations and duties?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Well Your Honors, the national budget if I may ... I attend budget hearings myself. The
budget for the environment is hardly ... the ratio is ... if we want to protect
indeed the environment as we profess, with all due respect if Congress speaks
otherwise.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of
your Judicial Affidavit, [you] are saying that the EMB is tasked in advising the DENR on
matters related to environmental management, conservation and pollution control,
right?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Yes.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

Thereafter you stated that you are tasked mainly with PD 1586 which refers to
Environmental Critical Areas of Projects and more specifically focused on Proclamation
No. 2146. With respect to this BT Talong, you mentioned that this is at first is
uncategorized, it's not within?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

It's not within Proclamation 2146 Your Honor.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

But you did mention that under the rules and regulations, even in an uncategorized
activity, pertaining to the environment, your Office has the mandate and then you later
say that your Office is without competence, do I follow your line of standing?

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't

fall as of now within Proclamation 2146.

HON. J. BARRIOS: chanRoblesvirtualLawlibrary

Yes, but under the implementing rules your Office has the mandate to act on other
unclassified activities and you answered that your Office has no competence.

ATTY. SEGUI: chanRoblesvirtualLawlibrary

Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by
I believe the Secretary of DENR. We need an amendment of 2146.141 (Emphasis
supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the
DENR-EMB's lack of serious attention to their mandate under the law in the
implementation of the NBF, as provided in the following sections of EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the
primary government agency responsible for the conservation, management,
development and proper use of the country's environment and natural resources, the
Department of Environment and Natural Resources (DENR) shall ensure that
environmental assessments are done and impacts identified in biosafety
decisions. It shall also take the lead in evaluating and monitoring regulated articles
intended for bioremediation, the improvement of forest genetic resources, and wildlife
genetic resources.

xxxx

4.12 Focal Point and Competent National Authorities.

4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national
focal point responsible for liaison with the Secretariat shall be the Department of
Foreign Affairs. The competent national authorities, responsible for performing the
administrative functions required by the Protocol, shall be, depending on the particular
genetically modified organisms in question, the following: chanRoblesvirtualLawlibrary
xxxx

4.12.1.4 The Department of Environment and Natural Resources, for biosafety

decisions covered by the Protocol that concern regulated organisms intended for
bioremediation, the improvement of forest genetic resources, and wildlife genetic
resources, and applications of modern biotechnology with potential impact on
the conservation and sustainable use of biodiversity. (Emphasis supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed
the concerned agencies to ensure that there will be funding for the implementation of
the NBF as it was intended to be a multi-disciplinary effort involving the different
government departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their
present budgets to implement the NBF, including support to the operations of the NCBP
and its Secretariat. Starting 2006 and thereafter, the funding requirements shall be
included in the General Appropriations Bill submitted by each of said departments to
Congress.

These concerned departments shall enter into agreement on the sharing of financial and
technical resources to support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the
implementation of the NBF.

Application of the Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the

normative idea that governments are obligated to "foresee and forestall" harm to the
environment. In the following decades, the precautionary principle has served as the
normative guideline for policymaking by many national governments.142 The Rio
Declaration on Environment and Development, the outcome of the 1992 United Nations
Conference on Environment and Development held in Rio de Janeiro, defines the rights
of the people to be involved in the development of their economies, and the
responsibilities of human beings to safeguard the common environment. It states that
the long term economic progress is only ensured if it is linked with the protection of the
environment.143 For the first time, the precautionary approach was codified under
Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely applied
by States according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach,
which indicates that lack of scientific certainty is no reason to postpone action to avoid
potentially serious or irreversible harm to the environment. It has been incorporated in
various international legal instruments.144 The Cartagena Protocol on Biosafety to the
Convention on Biological Diversity, finalized and adopted in Montreal on January 29,
2000, establishes an international regime primarily aimed at regulating trade in GMOs
intended for release into the environment, in accordance with Principle 15 of the Rio
Declaration on Environment and Development. The Protocol thus provides:
Article
 10

DECISION PROCEDURE

xxxx

6. Lack of scientific certainty due to insufficient relevant scientific information and

knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party
from taking a decision, as appropriate, with regard to the import of the living modified
organism in question as referred to in paragraph 3 above, in order to avoid or minimize
such potential adverse effects.

xxxx

Article

11

PROCEDURE FOR LIVING MODIFIED ORGANISMS

INTENDED FOR DIRECT USE AS FOOD OR FEED,

OR FOR PROCESSING

8. Lack of scientific certainty due to insufficient relevant scientific information and

knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party
from taking a decision, as appropriate, with regard to the import of that living modified
organism intended for direct use as food or feed, or for processing, in order to avoid or
minimize such potential adverse effects.

xxxx

Annex III

RISK ASSESSMENT

General principles

xxxx

4. Lack of scientific knowledge or scientific consensus should not necessarily be

interpreted as indicating a particular level of risk, an absence of risk, or an acceptable
risk.

The precautionary principle applies when the following conditions are met145:
  there exist considerable scientific uncertainties;

 there exist scenarios (or models) of possible harm that are scientifically
reasonable (that is based on some scientifically plausible reasoning);

 uncertainties cannot be reduced in the short term without at the same

time increasing ignorance of other relevant factors by higher levels of
abstraction and idealization;

 the potential harm is sufficiently serious or even irreversible for present or

future generations or otherwise morally unacceptable;

 there is a need to act now, since effective counteraction later will be made
significantly more difficult or costly at any later time.

The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE

SEC. 1. Applicability. - When there is a 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 before it.

The constitutional right of the people to a balanced and healthful ecology shall be given
the benefit of the doubt.

SEC. 2. Standards for application. - In applying the precautionary principle, the

following factors, among others, may be considered: (1) threats to human life or
health; (2) inequity to present or future generations; or (3) prejudice to the
environment without legal consideration of the environmental rights of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of
evidence in cases before the courts. The precautionary principle bridges the gap in
cases where scientific certainty in factual findings cannot be achieved. By applying the
precautionary principle, the court may construe a set of facts as warranting either
judicial action or inaction, with the goal of preserving and protecting the environment.
This may be further evinced from the second paragraph where bias is created in favor
of the constitutional right of the people to a balanced and healthful ecology. In effect,
the precautionary principle shifts the burden of evidence of harm away from those likely
to suffer harm and onto those desiring to change the status quo. An application of the
precautionary principle to the rules on evidence will enable courts to tackle future
environmental problems before ironclad scientific consensus emerges.146

For purposes of evidence, the precautionary principle should be treated as a principle of

last resort, where application of the regular Rules of Evidence would cause in an
inequitable result for the environmental plaintiff

— (a) settings in which the risks of harm are uncertain; (b) settings in which harm
might be irreversible and what is lost is irreplaceable; and (c) settings in which the
harm that might result would be serious. When these features

— uncertainty, the possibility of irreversible harm, and the possibility of serious

harm — coincide, the case for the precautionary principle is strongest. When in doubt,
cases must be resolved in favor of the constitutional right to a balanced and healthful
ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the
precautionary principle may find applicability.147

Assessing the evidence on record, as well as the current state of GMO research
worldwide, the Court finds all the three conditions present in this case - uncertainty, the
possibility of irreversible harm and the possibility of serious harm.

Eggplants (talong) are a staple vegetable in the country and grown by small-scale
farmers, majority of whom are poor and marginalized. While the goal of increasing crop
yields to raise farm incomes is laudable, independent scientific studies revealed
uncertainties due to unfulfilled economic benefits from Bt crops and plants, adverse
effects on the environment associated with use of GE technology in agriculture, and
serious health hazards from consumption of GM foods. For a biodiversity-rich country
like the Philippines, the natural and unforeseen consequences of contamination and
genetic pollution would be disastrous and irreversible.

Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial
stages of risk assessment and public consultation, including the determination of the
applicability of the EIS requirements to GMO field testing, are compelling reasons for
the application of the precautionary principle. There exists a preponderance of evidence
that the release of GMOs into the environment threatens to damage our ecosystems
and not just the field trial sites, and eventually the health of our people once
the Bt eggplants are consumed as food. Adopting the precautionary approach, the
Court rules that the principles of the NBF need to be operationalized first by the
coordinated actions of the concerned departments and agencies before allowing the
release into the environment of genetically modified eggplant. The more prudent course
is to immediately enjoin the Bt talong field trials and approval for its propagation or
commercialization until the said government offices shall have performed their
respective mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials - for which an
indefinite moratorium was recommended by a Supreme Court-appointed committee till
the government fixes regulatory and safety aspects - as relevant because majority of
Filipino farmers are also small-scale farmers. Further, the precautionary approach
entailed inputs from all stakeholders, including the marginalized farmers, not just the
scientific community. This proceeds from the realization that acceptance of uncertainty
is not only a scientific issue, but is related to public policy and involves an ethical
dimension.148 For scientific research alone will not resolve all the problems, but
participation of different stakeholders from scientists to industry, NGOs, farmers and
the public will provide a needed variety of perspective foci, and knowledge.149

Finally, while the drafters of the NBF saw the need for a law to specifically address the
concern for biosafety arising from the use of modern biotechnology, which is deemed
necessary to provide more permanent rules, institutions, and funding to adequately
deal with this challenge,150 the matter is within the exclusive prerogative of the
legislative branch.

WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the
Court of Appeals in CA-G.R. SP No. 00013 is hereby MODIFIED, as follows: chanRoblesvirtualLawlibrary

1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY

ENJOINED;

2. Department of Agriculture Administrative Order No. 08, series of 2002 is

declared NULL AND VOID; and

3. Consequently, any application for contained use, field testing, propagation and
commercialization, and importation of genetically modified organisms
is TEMPORARILY ENJOINED until a new administrative order is promulgated in
accordance with law.

No pronouncement as to costs.

SO ORDERED. chanroblesvirtuallawlibrary

Sereno, C.J., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perez, Mendoza,
Reyes, and Perlas-Bernabe, JJ., concur.
Carpio, J., no part prior inhibition.
Velasco, Jr., J., pls. see Concurring Opinion.
Brion, J., on official leave.
Leonen, J., see separate concurring opinion.
Jardeleza, J., no part.

Endnotes:

1
Rollo (G.R. No. 209271), pp. 135-159. Penned by Associate Justice Isaias P. Dicdican
with Associate Justices Myra V. Garcia-Fernandez and Nina G. Antonio-Valenzuela
concurring.

2
 Id. at 161-174.
3
 CA rollo (Vol. VI), Annex "O" of Biotech Petition.

4
 <http://www.isaaa.org/inbrief//default.asp> (visited last November 7, 2014).

5
 UPLBFI, "History" <http://uplbfi.org/?page_id=231/> (visited last November 7,
2014).

6
 "AN ACT TO STRENGTHEN THE UNIVERSITY OF THE PHILIPPINES AS THE NATIONAL
UNIVERSITY."

7
 RA 9500, Sec. 3(c).

8
 Susan R. Barnum, Biotechnology: An Introduction by 1 (1998).

9
 University of the Philippines Los Baños National Institute of Molecular Biology and
Biotechnology, "About Us" <http://biotech.uplb.edu.ph/index.php/en/about-us>
(visited last November 7, 2014).

10
 The Center for Media and Democracy, "GMOs in the Philippines"
<http:/www.sourcewatch.org/index.php/GMOs_in_the_Philippines>, (visited last
November 7, 2014).

11
 Id. (See also CA rollo, pp. 882-884).

12
 EO 514, Sec. 2.1.

13
 Id., Sec. 8.

14
 CA rollo (Vol. I), pp. 82-84.

15
 Id. at 85-86.

16
 CA rollo (Vol. II), pp. 885-886.

17
 Id. at 1058-1064.

18
 CA rollo (Vol. I), pp. 67-69.

18-a
 Id. at 400.

19
 A.M. No. 09-6-8-SC (2010).

20
 CA rollo (Vol. III), p. 2026.

21
 Id. at 2120-2123. UPLB was not served with the writ of kalikasan issued by this Court
nor furnished with copy of the petition of Greenpeace, et al. Its Answer, adopting the
arguments and allegations in the verified return filed by UPLBFI, was filed in the CA.
See CA Resolution dated August 17, 2012, id. at 2117-2119.

22
 Id. at 2100.
23
 Id. at 2312-2324.

24
 CA rollo (Vol. IV), pp. 2450-2460.

25
 Id. at 2864-2871.

26
Rollo (G.R. No. 209271), Vol. 1, pp. 157-158.

27
 SECTION 1. Applicability. - 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 before it.

The constitutional right of the people to a balanced and healthful ecology shall be given
the benefit of the doubt.
28
Rollo (GR. No. 209271), Vol. I, pp. 168-170.

29
 Id. at 35-37.

30
 Id. at 81.

31
Rollo (G.R. No. 209301), pp. 48-50, 53-55.

32
Rollo (G.R. No. 209271), Vol. IX, pp. 4111-4112. Citations omitted.

33
 Id. at 4112-4115. Citations omitted.

34
Rollo (G.R. No. 209271), Vol. IX, p. 4115.

35
 Id., Vol. XI, pp. 5715-5717.

36
 Id. at 5835-5837.

37
Rollo (G.R. No. 209271), Vol. V, pp. 2386-2387.

38
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254,
citing David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006).

39
 Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005).

40
Social Justice Society (SJS) v. Dangerous Drugs Board, et al., 591 Phil. 393, 404
(2008); Tatad v. Secretary of the Department of Energy, 346 Phil. 321 (1997); and De
Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.

41
Kilosbayan Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA
110, 137.

42
 G.R. No. 101083, July 30, 1993, 224 SCRA 792, 804-805.

43
 Id. at 802-803.

44
 Rule 2, Sec. 5 reads in part: chanRoblesvirtualLawlibrary

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors
or generations yet unborn, may file an action to enforce rights or obligations under
environmental laws. x x x

45
 See Annotation on A.M. 09-6-8-SC.

46
Santiago v. Court of Appeals, 348 Phil. 792, 800 (1998).

47
Barbieto v. Court of Appeals, G.R. No. 184645, October 30, 2009, 604 SCRA 825,
840.

48
Office of the Deputy Ombudsman for Luzon v. Francisco, Sr., G.R. No. 172553,
December 14, 2011, 662 SCRA 439,449, citing David v. Macapagal-Arroyo, supra note
38, at 754.

49
 546 Phil. 87, 96-98 (2007).

50
 See Boracay Foundation, Inc. v. Province of Aklan, G.R. No. 196870, June 26, 2012,
674 SCRA 555, 608.

51
 George Acquaah, Understanding Biotechnology: an integrated and cyber-based
approach, (Pearson Education, Inc., 2004) at 62, 64, 69 and 70.

52
 Id. at 72.

53
 Nancy Harris, Genetically Engineered Foods, (Greenhaven Press, 2004) at 5-6.

54
 Id. at 7.

55
 Sheweta Barak, Deepak Mudgil and B.S. Khatkar, "Genetically modified food:
benefits, safety aspects and concerns" Asian Journal of Food and Agro-
Industry <www.ajofai.info/Abstact/Genetically%2food%20benefits,%20safety
%20aspects%2concerns.pdf> (visited last November 7, 2014).

56
 Id. at 550.

57
 Herbicide is defined as "a poisonous substance used to destroy unwanted plants."
(Compact Oxford English Dictionary 473 [3rd ed. 2005]).

58
 Supra note 55, at 551-552.

59
 Id. at 552-553.

60
 Indur M. Goklany, "Applying the Precautionary Principle to Genetically Modified
Crops" Policy Study Number 157 (2000): 4-5, 8 and 10. Print.

61
 Roberto Verzola, "Genetically Engineered Foods Have Health Risks" supra note 53, at
38-42.

62
 Mae-Wan Ho, "Ban GMOs Now," Lecture by at conference on Traditional Seeds Our
National Treasure and Heritage - Traditional and Organic Agriculture. Bewelder,
Warsaw, Poland, April 6, 2008. <http://www.i-sis.org.uk/Ban_GMOs_Now.php.>
(visited last December 4, 2014)

63
 Anita Bakshi, "Potential Adverse Health Effects of Genetically Modified Crops" Journal
of Toxicology and Environmental Health B (2003)
<http://globalseminarhealth.wdfiles.com/local--files.nutrition/Bakshi.pdf> (visited last
December 4, 2014).

64
 Ken Roseboro, ed. "Arpad Pusztai and the Risks of Genetic Engineering" The Organic
and Non-GMO Report (June 2009)
<http://www.organicconsumers.org/articles/article_18101.cfm>. (visited last
December 6, 2014).

65
 Verzola, supra note 61, at 40.

66
 Barak, Mudgil and Khatkar, supra note 55, at 555.

67
 Bakshi, supra note 63, at 217; Barak, Mudgil and Khatkar, id.

68
 Verzola, supra note 61, at 40.

69
 Hans R. Larsen, "Milk and the Cancer Connection" International Health News (April
1998) <http://www.notmilk.com/drlarsen.html>. (visited last December 6, 2014).

70
Mercola, Monsanto's Roundup Herbicide May Be Most Important Factor In
Development of Autism and Other Chronic Diseases,
<http://articles.mercola.com/sites/articles/archive/2013/06/09/monsanto-roundup-
herbicide.aspx>. (visited last December 6, 2014).

71
 Ben Lilliston, "Genetically Modified Organisms are Contaminating Organic Crops,"
reproduced with permission in Genetically Engineered Foods, supra note 53, at 55.

72
 Barak, Mudgil and Khatkar, supra note 55, at 555.

73
 Id.

74
 Andreas Bauer-Panskus, Sylvia Hamberger and Christoph Then, "Transgene escape -
Global atlas of uncontrolled spread of genetically engineered plants" Test
Biotech <https://www.testbiotech.org/sites/default/files/Testbiotech_Transgene_Escap
e.pdf>. (visited last December 6, 2014).

75
 "Contamination of Crops" <http://www.gmeducation.org/environment/p149075-
contamination-of-crops.html>. (visited last December 7, 2014).

76
 Gene Watch UK, Fact Sheet No. 3 (Forage Maize), UK Farm Scale Trials with GM
Crops-2000, <http://www.genewatch.org/pub-537624>. (visited last December 7,
2014).

77
 "Transgenic Crops: an Introduction and Resource Guide"
<http://cls.casa.colostate.edu/transgeniccrops/croptocrop.html>.

78
 "Biology of Brinjal" <http://dbtbiosafety.nic.in/guidelines/brinjal.pdf>.

79
 Lilliston, supra note 71, at 54.

80
 Testbiotech Report, supra note 74, at 7.

A landrace is defined as "a dynamic population(s) of a cultivated plant that has

historical origin, distinct identity and lacks formal crop improvement, as well as often
being genetically diverse, locally adapted and associated with traditional farming
systems." Tania Carolina Camacho Villa, Nigel Maxted, Maria Scholten and Brian Ford-
Lloyd, "Defining and Identifying crop landraces," Characterization and Utilitzation Plant
Genetic Resources: Characterization and Utilization Vol. 3, Issue 3 (December 2005)
<http://journals.cambridge.org/action/displayAbstract?
fromPage=online&aid=689208>.

81
 Id. at 39.

82
 <http://onlinelibrary.wiley.com/doi/10.1046/j.0960-7412.2002.001607.x/full>.

83
 Barak, Mudgil and Khatkar, supra note 55, at 555-556.

84
 Z.H. Chen, L.J. Chen, Y.L. Zhang, Z.J. Wu, "Microbial properties, enzyme activities
and the persistence of exogenous proteins in soil under consecutive cultivation of
transgenic cottons (Gossypium hirsutum L.)" PLANT SOIL ENVIRON., 57, 2011 (2): 67-
74 <www.agriculturejournals.cz/publicFiles/35214.pdf>. (visited last December 6,
2014).

85
 Biao Liu, Qing Zeng, Fengming Yan, Haigen Xu, and Chongren Xu, Review: Effects of
Transgenic Plants on Soil Microorganisms"
<http://link.springer.com/article/10.1007/slll04-004-1610-8#page-2>. (visited last
December 6, 2014).

86
 E. Vinje, "Is Monsanto's Roundup Killing Our Soil?," Planet
Natural <http://www.planetnatural.com/roundup-killing-soil/>. (visited last December
6, 2014) See also Stephanie Strom, "Misgivings About How a Weed Killer Affects the
Soil" The New York Times (September 19, 2013)
<http://www.nytimes.com/2013/09/20/business/misgivings-about-how-a-weed-killer-
affects-the-soil.html?pagewanted=all&_r=0> (visited last December 6, 2014).

87
 R.A. Relyea, "The Lethal Impacts of Roundup and Predatory Stress on Six Species of
North American Tadpoles," Archives of Environmental Contamination and Toxicology v.
48, n.3, (April 1, 2005). <http://www.mindfully.org/Pesticide/2005/Roundup-Tadpoles-
Relyealapr05.htm> (visited last December 6, 2014).

88
 Mr. Neil J. Young QC, "Expert Witnesses: On the stand or in the hot tub - how, when
and why? Formulating the Question for Opinion and Cross-Examining the Experts"
Commercial Court Seminar, Quezon City, October 27, 2010.

89
 CA rollo (Vol. V), pp. 3482-3488.

90
 CA rollo (Vol. III), pp. 1834-1836.

91
 Id. at 1940-1944.

92
 CA rollo (Vol.I), pp. 164-165.

93
 Id. at 329-332.

94
 Id. at 2444-2445.
95
 TSN, November 20, 2012, pp. 34-117; CA rollo (Vol. V), pp. 4511-4594.

96
 Plotner, Becky, "Retracted Scientific Study On GMO Rats
REPUBLISHED!!!!," Nourishing Plot <http://nourishingplot.com/2014/06/24/retracted-
scientific-studv-on-gmo-rats-republished/> (visited last December 6, 2014); Plotner,
Becky, "GMO Rat Study Forcibly Retracted," Nourishing
Plot <http://nourishingplot.com/2014/01/05/gmo-rat-study-forcibly-retracted/>
(visited last December 6, 2014).

97
 Id.; "Republication of the Seralini study: Science speaks for itself,"
<http://www.gmoseralini.org/republication-seralini-study-science-speaks/> (visited
last December 6, 2014).

98
 Anne Ingeborg Myrh and Terje Traavik, "The Precautionary Principle: Scientific
Uncertainty and Omitted Research in the Context of GMO Use and Release,"
<https://www.cbd.int/doc/articles/2008/A-00637.pdf> (visited last December 6, 2014).

99
 James Clive, 2013. Global Status of Commercialized Biotech GM Crops: 2013. ISAAA
Brief No. 46. ISAAA: Ithaca, NY.

100
 Sonal Panse, "The Advantages & Disadvantages of Genetically Modified Food: Both
Sides of the Debate,"
<http://www.brighthub.com/science/genetics/articles/23358.aspx> (visited last
December 6, 2014).

101
 Harry A. Kuiper, Gijs A. Kleter, Hub P.J.M. Noteborn and Esther J. Kok, "Assessment
of the Food Safety Issues Related to Genetically Modified Foods,
<http://www.data.forestry.oregonstate.edu/orb/BiotechClass/2004%20materials/5A-
FOOD%20REG/Plant%20Journal%202001.pdf>.

102
 Joint FAO/WHO Biotechnology and Food Safety Report, 1996, p. 4.

103
 World Health Organization (WHO), "Safety Aspects of Genetically Modified Foods of
Plant Origin,"
<http://www.fao.org/fileadmin/templates/agns/pdf/topics/ec_june2000_en.pdf>
(visited last December 6,2014).

104
 Id. at 5.

105
 Mae-Wan Ho and Ricarda A. Steinbrecher, "Fatal Flaws in Food Safety Assessment:
Critique of The Joint FAO/WHO Biotechnology and Food Safety Report," Accessed at
<http://www.psrast.org/fao96.htm> (visited last December 6, 2014).

106
 John Fagan, Ph.D., "The Failings of the Principle of Substantial Equivalence in
Regulating Transgenic Foods," <http://www.psrast.org/jfsbqsht.htm> (visited last
December 6, 2014).

107
 Marianna Schauzu, "The Concept of Substantial Equivalence in Safety Assessment of
Foods Derived From Genetically Modified Organisms" AgBiotech Net (April 2000)
<http://www.bfr.bund.de/cm/349/schauzu.pdf> (visited last December 6, 2014.)
108
 R.H. Phipps and J.R. Park, "Environmental Benefits of Genetically Modified Crops:
Global and European Perspectives on their Ability to Reduce Pesticide Use," Journal of
Animal and Feed Sciences (January 31, 2002), <http:///cib.org.br/wp-
content/uploads/2011/10/estudos.cientificos_ambiental_32.pdf> (visited last December
6,2014).

109
 <http://responsibletechnology.org/docs/gm-crops-do-not-increase-yields.pdf>.

110
 Human Rights Advocates, "Promoting Right to Food Through Food Sovereignty,"
<http://www.humanrightsadvocates.org/wp-content/uploads/2014/03/HRC-25-
Promoting-Right-to-Food-Through-Food-Sovereignty.pdf> (visited last December 6,
2014).

111
 <http://ec.europa.eu/food/food/biotechnology/reports_studies/docs/It_effects_repor
t_en.pdf>.

112
 Prof. Dr. Ludwig Kramer, "Genetically Modified Living Organisms and the
Precautionary Principle," <https://www.testbiotech.org/sites/default/files/GMO%20and
%20precaution.pdf> (visited last December 7, 2014).

113
 Ingeborg and Traavik, supra note 98, at 73, 80-81.

114
 Marcelo Gortari, "GMOs, Risk and the Precautionary Principle," Public Policy &
Governance Review (July 11, 2013) <http://ppgreview.ca/2013/07/ll/gmos-risk-and-
the-precautionary-principle/> (visited last December 7, 2014).

115
 "Open Letter from World Scientists to All Government Concerning Genetically
Modified Organisms (GMOs)," <http://www.i-sis.org.uk/list.php> (visited last
December 7, 2014).

116
 International Assessment of Agricultural Knowledge, Science and Technology for
Development (IAASTD), "Agriculture at a Crossroads,"
<http://www.unep.org/dewa/agassessment/reports/IAASTD/EN/Agriculture%20at
%20a%20Crossroads_Global%20Report%20(English.pdf> (visited last December
7,2014).

117
 "The Case for a GM-Free Sustainable World - A Summary," <http://www.i-
sis.org.uk/ispr-summary.php> (visited last December 7, 2014.).

118
 Id.

119
 Supra note 116.

120
 International Assessment of Agricultural Knowledge, Science and Technology for
Development (IAASTD), "Biotechnology and Sustainable Development,"
<www.biosafety-info.net/file_dir/4542994024ca566872c339.pdf> (visited last
December 7, 2014).

121
 "No scientific consensus on safety of genetically modified organisms,"
<http://phys.org/news/2013-10-scientific-consensus-safety-genetically.html> (visited
last December 7, 2014).

122
 European Network of Scientists for Social and Environmental Responsibility,
"Statement: No scientific consensus on GMO safety,"
<http://www.ensser.org/increasing-public-information/no-scientific-consensus-on-gmo-
safety/> (visited last December 7, 2014).

123
 Citations omitted.

124
 Walden Bello, "GMO Wars: The Global Battlefield," Foreign Policy in
Focus and TheNation.com (October 28, 2013), <http://fpif.org/gmo-wars-global-
battlefield/> (visited last December 9, 2014).

125
 Dr. John Samuels, "Genetically engineered Bt brinjal and the implications for plant
biodiversity - revisited,"
<http://www.greenpeace.org/seaasia/ph/PageFiles/415937/GE-Bt-brinjal-
revisited.pdf> (visited last December 9, 2014).

126
 "CONFIDENTIAL: Final Report of the Technical Expert Committee (TEC),"
<http://www.greenpeace.org/india/Global/india/report/2013/TEC-report.pdf> (visited
last December 9, 2014).

127
 Id. at 81-82.

128
The National Biosafety Framework FOR the Philippines. Department of Environment
and Natural Resources-Protected Areas and Wildlife Bureau 2004. Quezon City,
Philippines.

129
 Greenpeace, "Ties that bind: regulatory capture in the country's GMO approval
process" <http://www.greenpeace.org/seasia/ph/Global/seasia/report/2007/10/ties-
that-bind-regulatory-cap.pdf> (visited last December 7, 2014).

130
 Approved on March 17, 2006.
131
 EO 514, Sec. 2.1.

132
 Id., Sec. 2.2.2.

133
 NBF, Sec. 2.5.

134
 Id., Sec. 2.7.

135
 Id. 2.13.

136
 "The Role of Government Agencies in the Philippine Environmental Impact System:
Under the Revised Procedural Manual,"
<http://www.emb.gov.ph/portal/Portals/21/EIA/EIA%20FOLDER/For%20National
%20Govemment%20Agencies.pdf> (visited last December 9, 2014).
137
 Section 7.g, Revised Procedural Manual for DAO 2003-30 on the Overview of the
Philippine EISS (PEISS).

138
 RA 8550 (Philippine Fisheries Code), Sec. 12.

139
Overview of the Environmental Impact Assessment Process, 25 September 2013.
Accessed at <https://www.doe.gov.ph/microsites/ipo%20web/linked
%20files/2013/MEIF2013/03_DENR_Procedures.pdf>.

140
 Proclaiming Certain Areas and Types of Projects as Environmentally Critical and
Within the Scope of the Environmental Impact Statement System Established Under
Presidential Decree No. 1586. Issued December 14, 1981.

141
 TSN, February 7, 2013, pp. 13-16, 18-20.

142
 "GMOs, Risks and the Precautionary Principle" by Marcelo Gortari, supra note 114.

143
 Principles 1, 2, 3 and 4. <http://www.unep.org/Documents.Multilingual/Default.asp?
documentid=78&articleid:=1163> (visited last December 7, 2014).

144
 The Global Development Resource Center, "The Rio Declaration: Principle 15 - The
Precautionary Approach," <http://www.gdrc.org/u-gov/precaution-7.html> (visited last
December 9, 2014).

145
 "The Precautionary Principle," World Commission on the Ethics of Scientific
Knowledge and Technology (COMEST). March 2005.
<http://unesdoc.unesco.org/images/0013/001395/139578e.pdf>.

146
 ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES.

147
 Id.

148
 Ingeborg Myhr and Traavik, supra note 98.

149
 Anne Ingeborg-Myhr and Terje Traavik, "Genetically Modified (GM) Crops:
Precautionary Science and Conflicts of Interests"
<http://www.pages.drexel.edu/~ls39/peer_review/Myhr.pdf> (visited last December 9,
2014).

150
 Department of Environment and Natural Resources - Protected Areas and Wildlife
Bureau, "The National Biosafety Framework for the Philippines,"
<http://www.unep.org/biosafety/files/PHNBFrep.pdf> (visited last December 9,
2014). cralawlawlibrary

CONCURRING OPINION
 VELASCO,JR., J.:

Technological and scientific advances no longer involve raw materials manipulation and
transformation. It now embraces changing the very genetic make-up of live organisms,
altering and even mixing characteristics of flora, fauna, microorganisms, among others,
for various purposes, including attempts to increase agricultural yield and improve and
develop sustainable pest control.

The Philippines is not insulated from this genetic modification of organisms as it is, in
fact, a regulated activity in this jurisdiction. But, in view of the possible dangers that
the activity poses to the biodiversity-rich environs of the country, environmental
protection in the Philippines has evolved to adapt to these progresses and is still being
further strengthened via executive, legislative, and judicial efforts.

At bar are consolidated petitions seeking the reversal of the Decision of the Court of
Appeals (CA) dated May 17, 2013, as well as its Resolution dated September 20, 2013,
in CA-G.R. SP No. 00013 which permanently enjoined the conduct of field trials for the
genetically modified eggplant, commonly known as "Bt Talong" on concerns for
biosafety.

Biosafety is a condition in which the probability of harm, injury and damage resulting
from the intentional and unintentional introduction and/or use of a regulated article is
within acceptable and manageable levels.1 "Regulated article" refers to genetically
modified organisms2 (GMOs), which are "living modified organisms" under the
Cartagena Protocol on Biosafety and refers to any living organism that possesses a
novel combination of genetic material obtained through the use of modern
biotechnology.3 Regulated articles also include the products of GMOs.4

Prior, however, to the introduction of biotechnology and genetic modification of

organisms in the Philippines, one of the main enactments governing environmental
protection is Presidential Decree No. 1151 (PD 1151) or the Philippine Environmental
Policy issued by then President Ferdinand E. Marcos on June 6, 1977.

The Philippine Environmental Impact Statement System (PEISS)

PD 1151, which put in place the use of Environmental Impact Statements in this
jurisdiction, declares as the State's continuing policy (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and
enjoyable harmony with each other; (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos; and (c) to insure the
attainment of an environmental quality that is conducive to a life of dignity and well-
being.

In pursuit of its above-stated policy, Section 4 of PD 1151 requires thusly:

[A]ll agencies and instrumentalities of the national government, including government-
owned or controlled corporations, as well as private corporations, firms and entities
shall prepare, file and include in every action, project or undertaking which significantly
affects the quality of the environment a detailed statement on —
(a) the environmental impact of the proposed action, project or undertaking;
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are
consistent with the maintenance and enhancement of the long-term productivity of the
same; and
(e) whenever a proposal involves the use of depletable or non- renewable resources, a
finding must be made that such use and commitment are warranted.
Before an environmental impact statement (EIS) is issued by a lead agency, all
agencies having jurisdiction over, or special expertise on, the subject matter involved
shall comment on the draft environmental impact statement made by the lead agency
within thirty (30) days from receipt of the same.
Thereafter, to give more teeth to the EIS requirement, PD 15865 was issued on June
11, 1978, establishing the EIS System (PEISS), instituting a systems-oriented and
integrated approach to the filing of the EIS in coordination with the whole
environmental protection program of the State.6 Section 2 thereof states:
There is hereby established an Environmental Impact Statement System founded and
based on the environmental impact statement required under Section 4 of Presidential
Decree No. 1151, of all agencies and instrumentalities of the national government,
including government-owned or controlled corporations, as well as private corporations,
firms and entities, for every proposed project and undertaking which significantly affect
the quality of the environment.
To reiterate, Section 4 of PD 1151, on the other hand, provides:
Environmental Impact Statements. Pursuant to the above enunciated policies and
goals, all agencies and instrumentalities of the national government, including
government-owned or controlled corporations, as well as private corporations, firms
and entities shall prepare, file and include in every action, project or undertaking which
significantly affects the quality of the environment a detailed statement on
(a) the environmental impact of the proposed action, project or undertaking
(b) any adverse environmental effect which cannot be avoided should the proposal be
implemented
(c) alternative to the proposed action
(d) a determination that the short-term uses of the resources of the environment are
consistent with the maintenance and enhancement of the long-term productivity of the
same; and
(e) whenever a proposal involves the use of depletable or nonrenewable resources, a
finding must be made that such use and commitment are warranted.
Before an environmental impact statement is issued by a lead agency, all agencies
having jurisdiction over, or special expertise on, the subject matter involved shall
comment on the draft environmental impact statement made by the lead agency within
thirty (30) days from receipt of the same.
As part of the PEISS, Section 4 of PD 1586 provides that "the President of the
Philippines may, on his own initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally critical." Pursuant thereto,
Proclamation No. 2146 was issued on December 14, 1981, declaring certain areas7 and
types of projects8 as environmentally critical and within the scope of the Environmental
Impact Statement System established under PD 1586.9

In connection therewith, the same provision declares that "[n]o person, partnership or
corporation shall undertake or operate any such declared environmentally critical
project or area without first securing an Environmental Compliance Certificate (ECC)
issued by the President or his duly authorized representative."10

For those projects that are identified to be environmentally non-critical, Section 5 of the
same law provides that "[a]ll other projects, undertakings and areas not declared by
the Presidents as environmentally critical shall be considered as non-critical and shall
not be required to submit an environmental impact statement."

Thus and simply put, under the PEISS, if the project is itself identified to be
environmentally critical or to be undertaken at an environmentally critical area, the
proponent has to secure an ECC. If, however, the project is identified under the PEISS
as environmentally non-critical and is not to be undertaken in an environmentally
critical area, then the proponent will secure a Certificate of Non-Coverage (CNC)
instead of an ECC.

It is, however, well to note that even though a project may be certified as not covered
by the environmental impact assessment requirement, still, there is nothing that will
bar the government agencies concerned from requiring from the proponent the
adoption of additional environmental safeguards that they may deem necessary.11

Hence, before the entry of biotechnology in Philippine jurisdiction and the introduction
of GMOs to its soil, and even after such, it is the PEISS that primarily governs projects
that have or may have an impact on the country's ecological balance and makeup,
whether the project involves biotechnology or not. And it was only in 1990, or almost a
decade after the issuance of Presidential Proclamation No. 2146 identifying
environmentally critical areas and projects, when the government began regulating
Biotechnology research in the country.

Philippine Regulations on Biotechnology and Biosafety

In 1987, scientists from the University of the Philippines Los Banos (UPLB) and the
International Rice Research Institute (IRRI), the Quarantine Officer of the Bureau of
Plant Industry (BPI), and the Director for Crops of the Philippine Council for Agriculture,
Forestry and Natural Resources Research and Development (PCARRD), recognizing the
potential harm of the introduction of exotic species and genetic engineering, formed a
committee and formulated the biosafety protocols and guidelines for genetic
engineering and related research activities for UPLB and IRRI researchers. The
committee went on to draft a Philippine biosafety policy, which was submitted to the
Office of the President.12

On the basis of said submission, on October 15, 1990, then President Corazon C.
Aquino signed Executive Order No. 430 (EO 430) constituting the National Committee
on Biosafety of the Philippines (NCBP) among other purposes.13 Said directive was
issued in recognition of the value of biotechnology and its high potential to improve the
quality of human life, as well as the possible concomitant risks and hazards that
biotechnology may pose to health safety, environment, and society.14
EO 430 created the National Committee on Biosafety of the Philippines (NCBP) and
vested upon it the following functions, to wit:
(a) Identify and evaluate potentials hazards involved in initiating genetic engineering
experiments or the introduction of new species and genetically engineered organisms
and recommend measures to minimize risks;
(b) Formulate and review national policies and guidelines on biosafety, such as the safe
conduct of work on genetic engineering, pests and their genetic materials for the
protection of public health, environment and personnel and supervise the
implementation thereof;
(c) Formulate and review national policies and guidelines in risk assessment of work
biotechnology, and supervise the implementation thereof;
(d) Develop working arrangements with the government quarantine services and
institutions in the evaluation, monitoring, and review of projects vis-a-vis adherence to
national policies and guidelines on biosafety;
(e) Assist in the development of technical expertise, facilities and other resources for
quarantine services and risk assessments;
(f) Recommend the development and promotion of research programs to establish risk
assessment protocols and assessment of long-term environmental effects of biological
research covered by these guidelines;
(g) Publish the results of internal deliberation and agency reviews of the committee;
(h) Hold public deliberations on proposed national policies, guidelines and other
biosafety issues;
(i) Provide assistance in the formulation, amendment of pertinent laws, rules and
regulations; and
(j) Call upon the assistance of any government agency, department, office, bureau
including government-owned and/or controlled corporations.15 ChanRoblesVirtualawlibrary

Pursuant to its mandate, the NCBP published the first version of the Philippine National
Biosafety Guidelines in 1991 (1991 Guidelines). Said Guidelines governs regulating the
importation, transfer and use of GMOs and potentially harmful exotic species in the
Philippines, with focus on potentially hazardous work performed under contained
conditions. Since the publication of the first edition, the NCBP has received and
evaluated more than eighty (80) project proposals, all of which were to be performed
under contained conditions. However, recognizing the rapid advances in other countries
in respect of field trials of selected GMOs, the NCBP decided to look into the adequacy
and relevance of the Guidelines, particularly as it relates to planned release.

In 1996, the NCBP started to review the Guidelines with the view of revising it to
address the concerns of both the scientific and environmental communities. Hence, the
second edition was issued on May 15, 1998. Series No. 3 of the second edition contains
the guidelines on the deliberate release of GMOs and Potentially Harmful Exotic Species
(PHES) into the Philippine Environment.16 Furthermore, it specifically repealed the
provisions of the 1991 Guidelines on field release of regulated materials which are
inconsistent therewith.17

From 1990 to 2002, the NCBP's scope of mandate included research and development
in the laboratory, screenhouse and in the field.18Regulation of field testing was later
removed from the NCBP's mandate when the Department of Agriculture (DA) issued
Administrative Order No. 8 (AO No. 8, s. 2002) or the "Rules and Regulations for the
Importation and Release into the Environment of Plants and Plant Products Derived
from the Use of Modern Biotechnology."

AO No. 8, s. 2002 was approved on April 3, 2002 and became operational in July
2003.19 It covers the importation or release into the environment of:

1. Any plant which has been altered or produced through the use of modern
biotechnology if the donor organism, host organism, or vector or vector agent
belongs to any of the genera or taxa classified by BPI as meeting the definition
of plant pest or is a medium for the introduction of noxious weeds; or

2. Any plant or plant product altered or produced through the use of modern
biotechnology which may pose significant risks to human health and the
environment based on available scientific and technical information.20

Furthermore, it specifically provides that it shall not apply to the contained use of a
regulated article, which is within the regulatory supervision of the NCBP.21 With these,
the administrative order thus transferred regulation of field testing of biotech crops to
the DA's Bureau of Plant Industry (BPI), among others.22

With DA AO No. 8, s. 2002, field tests and eventual commercial propagation of biotech
crops would be handled by the DA-BPI, instead of the NCBP, starting July 2003. Thus,
DA AO 8 redefined the NCBP's tasks to focus on contained facility R & D involving
genetically modified organisms. However, NCBP continued to review and formulate
policies on biotechnology as well as review and modify the science-based risk
assessment of protocols to be used by the regulatory agencies implementing the
commercial guidelines. All applications for field tests received before July 1, 2003
remained under the supervision of the NCBP until their completion.23

Meanwhile, or on September 11, 2003, the ratification by the Philippines of the

Cartagena Protocol on Biosafety entered into force, prompting the issuance by then
President Gloria Macapagal-Arroyo of Executive Order No. 514 (EO 514), series of 2006
on March 17, 2006. Said executive order established the National Biosafety Framework
(NBF), prescribed guidelines for its implementation, strengthening the NCBP, among
others.

EO 514 highlighted the need to enhance the existing biosafety framework to better
respond to the challenges presented by further advances in modern biotechnology and
to comply with the administrative requirements of the Cartagena Protocol on
Biosafety.24 Consistent with these, the NBF has the following objectives, viz:
2.2.1. Strengthen the existing science-based determination of biosafety to ensure the
safe and responsible use of modern biotechnology so that the Philippines and its
citizens can benefit from its application while avoiding or minimizing the risks
associated with it;
2.2.2. Enhance the decision-making system on the application of products of modern
biotechnology to make it more efficient, predictable, effective, balanced, culturally
appropriate, ethical, transparent and participatory; and
2.2.3. Serve as guidelines for implementing international obligations on biosafety.
In order to put these objectives into action, EO 514 strengthened the NCBP through the
expansion of its composition25 and functions.
Anent its composition, EO 514 provides thusly:
The NCBP shall be composed of the following: The Secretaries of the Departments of
Science and Technology, Agriculture, Health, Environment and Natural Resources,
Foreign Affairs, Trade and Industry, and Interior and Local Governments or their
designated representatives.

The DOST Secretary shall be the permanent Chair; A consumer representative

appointed by the President from a list submitted by nationally recognized consumer
organizations, serving for a term of three (3) years, renewable for another term;

A community representative from the farmers, fisherfolk and indigenous sector

appointed by the President from a list submitted by nationally recognized sectoral
organizations, serving for a term of three (3) years, renewable for another term;

4.2.4 A representative from industry appointed by the President from a list submitted
by the Secretary of Trade and Industry, serving for a term of three (3) years,
renewable for another term; and,

A biological scientist, physical scientist, environmental scientist, health scientist, and

social scientist to be endorsed by the DOST Secretary upon the recommendation of
recognized professional and collegial bodies such as the National Academy of Science
and Technology (NAST) and the Philippine Social Science Council (PSSC), and appointed
by the President, each serving for a term of three (3) years, renewable for another
term.
This new NCBP was then directed to, among others:

1. set the national scientific and technical biosafety standards on methods and
procedures for ensuring biosafety in the country, consistent with existing laws;
and

2. to develop basic policies on addressing public interests on biosafety, provided

that the same are consistent with law and if such policies are found insufficiently
addressed in existing mandates and regulations of pertinent agencies.26

The DA was designated as the agency that shall address biosafety issues related to the
country's agricultural productivity and food security.27 Additionally, the DA was directed
to exercise such jurisdiction and other powers that it has been conferred with under
existing laws, in coordination with other concerned departments and agencies, and
consistent with the requirements of transparency and public participation as provided in
Sections 6 and 7 of the NBF. Moreover, it was mandated to take the lead in evaluating
and monitoring plant and plant products derived from the use of modern biotechnology,
as provided in Department of Agriculture Administrative Order No. 008, s. 2002.

The Department of Science and Technology (DOST), on the other hand, is to take the
lead in ensuring that the best available science is utilized and applied in adopting
biosafety policies, measures and guidelines, and in making biosafety decisions. It also
was tasked to ensure that such policies, measures, guidelines and decisions are made
on the basis of scientific information that is of the highest quality, multi-disciplinary,
peer-reviewed, and consistent with international standards as they evolve.28
The Department of Environment and Natural Resources (DENR) was mandated to
ensure that environmental assessments are done and impacts identified in
biosafety decisions. It shall also take the lead in evaluating and monitoring regulated
articles intended for bioremediation, the improvement of forest genetic resources, and
wildlife genetic resources.29

With respect to its functions, Item 4.6, Section 4 of EO 514 provides thusly:
4.6 Powers and Functions of the NCBP. As the lead body in implementing the NBF,
the NCBP shall have the following powers and functions: chanRoblesvirtualLawlibrary

4.6.1 Biosafety Policy Functions

Assist concerned departments and agencies in formulating, reviewing, or amending

their respective policies, measures and guidelines on biosafety;

Hold public deliberations on proposed national policies, guidelines, and other biosafety
issues;

4.6.1.3 Provide assistance in the formulation, amendment of pertinent laws, rules and
regulations;

4.6.1.4 In coordination with concerned departments and agencies and consistent with
the requirements of transparency and public participation as provided in Sections 6 and
7 of the NBF, shall take the lead in periodically reviewing the NBF; Issue detailed
guidelines on the conduct of socio-economic impact evaluation of biosafety decisions;
and,

Propose to Congress necessary and appropriate legislation.

4.6.2 Accountability Functions

4.6.2.1 Monitor the implementation of the NBF by concerned departments and

agencies;

4.6.2.2 Ensure coordination among competent national authorities that have shared
mandates;

4.6.2.3 Ensure that NCBP guidelines, and the principles and processes

established in this Framework are complied with by concerned departments
and agencies; and,

Review procedures for accountability in biosafety decision-making by competent

national authorities, with particular emphasis on ensuring independence and
impartiality in such decisions.

4.6.3 Scientific Functions

4.6.3.1 Facilitate the study and evaluation of biosafety research and control and
minimize the concomitant risks and hazards associated with the deliberate release of
regulated articles in the environment;

4.6.3.2 Identify and evaluate potential hazards involved in modern biotechnological

experiments or the introduction of regulated articles and recommend measures to
minimize risks;

4.6.3.3 Recommend the development and promotion of research programs to establish

risk assessment protocols and assessment of long-term environmental effects of
regulated articles;

4.6.3.4 Develop working arrangements with the government quarantine services and
institutions in the evaluation, monitoring, and review of projects vis-a-vis adherence to
national policies and guidelines on biosafety;

4.6.3.5 Review and develop guidelines in the risk assessment of regulated articles for
contained use;

4.6.3.6 Assist other agencies in developing risk assessment guidelines and

procedures of regulated articles for field trials and commercial release;

4.6.3.7 Review the appointment of the members of the Institutional Biosafety

Committees created by institutions engaged in activities involving regulated articles,
upon recommendation by their respective heads of institutions;

4.6.3.8 Publish the results of internal deliberations and agency reviews of the NCBP;

4.6.3.9 Hold, discussions on the comparative ecological, economic and social impacts of
alternative approaches to attain the purposes/objectives of the proposed genetic
modification products and/or services; and,

4.6.3.10 Perform such functions as may be requested by concerned departments and

agencies.

4.6.4 Capacity Building Functions

4.6.4.1 Assist in the development of technical expertise, facilities, and other resources
for quarantine services and risk assessments; and,

4.6.4.2 Take the lead in developing and implementing a national capacity- building
program for biosafety.
As to its effect on existing policies, rules, and issuances, specifically DA AO No. 8, s.
2002, it is well to note that Section 830 of EO 514 specifically provided that DA AO No.
8, s. 2002 remains to be in force and effect.

Despite the issuance, however, of EO 514, new biosafety policies or guidelines on GMO
field testing have yet to be issued. Furthermore, DA AO No. 8, s. 2002 has not been
amended. As such, it remains to be the rules that primarily govern the conduct of field
trials for genetically engineered plants and crops in our jurisdiction, as noted by
the ponencia.
As it stands, application for field testing of regulated articles is governed by Part III
(Approval Process for Field Testing of Regulated Articles) of DA AO No. 8, s. 2002,
Section 7 of which states that:
No regulated article shall be released into the environment for field testing, unless: (i)
a Permit to Field Test has been secured from the BPI; and (ii) the regulated article has
been tested under contained conditions in the Philippines. x x x
It is important, however, to emphasize that despite the issuance of DA AO No. 8, s.
2002, the NBF, and the NCBP Guidelines, other statutory requirements or those
required by agencies remain in full force and effect.31 This is bolstered by the fact
that EO 514, as mentioned by the ponencia, requires the determination by the
concerned departments or agencies of whether the Philippine Environmental Impact
Assessment (EIA) System should be applied to biosafety decisions.32 EO 514 also
requires the DENR, as a member of the NCBP, to ensure that environmental
assessments are done and impacts identified in biosafety decisions.33

The Present Controversy

The Bt Talong is a type of eggplant bio-engineered to develop resistance

to lepidopteran larvae, through the incorporation of crystal toxin genes from the soil
bacterium Bacillus thuringiensis (Bt) which triggers the production of the
protein CrylAc which is toxic to the said target insect pests.

Under the regulatory supervision of the NCBP, a contained experiment was started in
2007 and officially completed on March 3, 2009. The NCBP, thus, issued a Certificate of
Completion of Contained Experiment stating that "During the conduct of the
experiment, all the biosafety measures have been complied with and no untoward
incident has occurred."

After securing the necessary permits, the UPLB commenced the field testing of Bt
Talong on various dates, in the following approved sites: Kabacan, Borth Cotabato; Sta.
Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.

Reacting to the conduct of the field testing, the Sangguniang Barangay of Pangasugan,

Baybay, Leyte complained about the lack of information on the nature and uncertainties
of the field testing in their barangay. Too, the Davao City Government, in opposition
thereto due to lack of transparency and public consultation, ordered the uprooting and
disposal of the Bt eggplants. Similarly, the Sangguniang Bayan of Sta. Barbara, Iloilo
passed a resolution suspending the field testing due to the following: lack of public
consultation, absence of adequate study to determine the effect of Bt talong field
testing on friendly insects, absence of risk assessment on the potential impacts of GM
crops on human health and the environment, and the possibility of cross-pollination
of Bt eggplants with native species or variety of eggplants, and serious threat to human
health if these were introduced in the market.

On April 26, 2012, respondents filed a petition for writ of kalikasan and writ of
continuing mandamus with prayer for the issuance of a Temporary Environmental
Protection Order (TEPO). They allege that the Bt Talong field trials violate their
constitutional right to a healthful and balanced ecology considering that:
 1. The required environmental compliance certificate under Presidential Decree No.
1151 was not secured prior to the project implementation;

2. As a regulated article under DAO 8-2002, Bt Talong is presumed harmful to

human health and the environment, and there is no independent, peer-reviewed
study on its safety for human consumption and on the environment;

3. A study conducted by Professor Gilles-Eric Seralini showed adverse effects on

rats who were fed Bt corn, while local scientists also attested to the harmful
effects of GMOs to human and animal health;

4. Bt crops can be directly toxic to non-target species as highlighted by a research

conducted in the US which demonstrated that pollen from Bt Maize was toxic to
the Monarch butterfly;

5. Data from the use of Bt CrylAb maize indicate that beneficial insects have
increased mortality when fed on larvae of a maize pest, the corn borer, which
had been fed on Bt, and hence non-target beneficial species that may feed on
eggplant could be similarly affected;

6. Data from China show that the use of Bt crops (Bt cotton) can exacerbate
populations of other secondary pests;

7. The built-in pesticides of Bt crops will lead to Bt-resistant pests, thus increasing
the use of pesticides, contrary to the claims by GMO manufacturers;

8. The 200-meter perimeter pollen trap area in the field testing set by BPI is not
sufficient to stop contamination of nearby non-Bt eggplants because pollinators
such as honeybees can fly as far as four (4) kilometers and an eggplant is 48%
insect-pollinated; and

9. The field test project did not comply with the required public consultation under
Sections 26 & 27 of the Local Government Code.

The full acceptance by the project proponents of the findings in the MAHYCO Dossier
was strongly assailed on the ground that these do not precisely and adequately assess
the numerous hazards posed by Bt Talong and its field trial.

On these premises, the following reliefs were prayed for:

1. Upon the filing of the petition, a Temporary Environmental Protection Order

should be issued:
a. Enjoining Bureau of Plant Industry (BPI) and Fertilizer and Pesticide
Authority (FPA) of the DA from processing for field testing, and registering
as herbicidal product Bt talong in the Philippines;

b. Stopping all pending field testing of Bt talong anywhere in the Philippines;

and
 c. Ordering the uprooting of planted Bt talong for field trials as their very
presence poses significant and irreparable risks to human health and the
environment;

2. Upon the filing of the petition, issue a writ of continuing mandamus

commanding:
a. Respondents to submit to and undergo the process of environmental
impact statement system under the Environmental Management Bureau
(EMB);

b. Respondents to submit independent, comprehensive, and rigid risk

assessment, field test report, regulatory compliance reports and
supporting documents, and other material particulars of the Bt talong field
trial;

c. Respondents to submit all its issued certifications on public information,

public consultation, public participation, and consent of the local
government units in the barangays, municipalities, and provinces affected
by the field testing of Bt talong;

d. Respondent regulator, in coordination with relevant government agencies

and in consultation with stakeholders, to submit an acceptable draft of an
amendment of the National Biosafety Framework of the Philippines, and
DA Administrative Order No. 08, defining or incorporating an independent,
transparent, and comprehensive scientific and socio-economic risk
assessment, public information, consultation, and participation, and
providing for their effective implementation, in accord with international
safety standards; and

e. Respondent BPI of the DA, in coordination with relevant government

agencies, to conduct balanced nationwide public information of the nature
of Bt talong and Bt talong field trial, and a survey of social acceptability of
the same.

3. Upon filing of the petition, issue a writ of kalikasan commanding respondents to

file their respective returns and explain why they should not be judicially
sanctioned for violating or threatening to violate or allowing the violation of the
above-enumerated laws, principles, and international principles and standards,
or committing acts, which would result into an environmental damage of such
magnitude as to prejudice the life, health, or property of petitioners in particular
and of the Filipino people in general;

4. After hearing and judicial determination, to cancel all Bt talong field experiments

that are found to be violating the abovementioned laws, principles, and
international standards; and recommend to Congress curative legislations to
effectuate such order.
On May 2, 2012, the Court issued a writ of kalikasan against International Service for
the Acquisition of Agri-Biotech Applications, Inc. (ISAAA), EMB/BPI/FPA and UPLB,
ordering them to make a verified return within a non-extendible period often (10) days,
as provided in Sec. 8, Rule 7, of the Rules of Procedure for Environmental Cases.

ISAAA, EMB/BPI/FPA, UPLB Foundation, Inc., and UP Mindanao Foundation, Inc.

(UPMFI) filed their respective verified returns. They all argued that the issuance of writ
of kalikasan is not proper because in the implementation of the Bt talong project, all
environmental laws were complied with, including public consultations in the affected
communities, to ensure that the people's right to a balanced and healthful ecology was
protected and respected. They also asserted that the Bt talong project is not covered by
the Philippine Environmental Impact Statement (PEIS) Law and that Bt talong field
trials will neither significantly affect the quality of the environment nor pose a hazard to
human health. ISAAA contended that the NBF amply safeguards the environment
policies and goals promoted by the PEIS Law. For its part, UPLBFI asserted that there is
a "plethora of scientific works and literature, peer-reviewed, on the safety of Bt
talong for human consumption."

ISAAA argued that the allegations regarding the safety of Bt talong as food are
irrelevant in the field trial stage as none of the eggplant will be consumed by humans or
animals, and all materials that will not be used for analyses will be chopped, boiled, and
buried following the Biosafety Permit requirements. Too, it cited a 50-year history of
safe use and consumption of agricultural products sprayed with commercial Bt microbial
pesticides and a 14-year history of safe consumption of food and feed derived
from Bt crops.

UPMFI contends that the Bt talong planted in Davao City have already been uprooted by
the City officials. And there having been no further field trials conducted thereat, there
is no violation of the constitutional rights of persons or damage to the environment with
respect to Davao City that will justify the issuance of a writ of kalikasan.

Finally, it is argued that the precautionary principle is not applicable considering that
the field testing is only a part of a continuing study being done to ensure that the field
trials have no significant impact on the environment. There is, thus, no resulting
environmental damage of such magnitude as to prejudice the life, health, or property of
inhabitants in two or more cities or provinces.

On July 10, 2012, the Court referred the case to the CA for acceptance of the return of
the writ and for hearing, reception of evidence, and rendition of judgment. The
following issues were submitted for the CA's resolution:

1. Whether or not Greenpeace, et al. have the legal standing to file the petition for
writ of kalikasan;

2. Whether or not the case presented a justiciable controversy; and

3. Whether or not said petition had been rendered moot and academic by the
alleged termination of the Bt talong field testing.
Under its Resolution dated October 12, 2012, the CA resolved that: chanRoblesvirtualLawlibrary

(1) Greenpeace, et al. possess the requisite legal standing to file the petition;
(2) assuming arguendo that the field trials have already been terminated, the case is
not yet moot since it is capable of repetition yet evading review; and
(3) the alleged non-compliance with environmental and local government laws present
justiciable controversies for resolution by the court.

After trial on the merits, the CA, on May 17, 2013, rendered a Decision in favor of
Greenpeace, et al., thus:
WHEREFORE, in view of the foregoing premises, Judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents are DIRECTED to:   
 

(a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the
foregoing judgment of this Court.

No costs.

SO ORDERED.
The CA found that existing regulations issued by the DA and the DOST are insufficient
to guarantee the safety of the environment and the health of the people. It likewise
applied the precautionary principle set forth in Section 1, Rule 20 of the Rules of
Procedure for Environmental Cases, stressing the fact that the "over-all safety
guarantee of the bt talong" and whether it poses a threat to human health remain
unknown. In view of said uncertainty, the CA upheld the primacy of the people's
constitutional right to a healthful and balanced ecology.'

Then, in its September 20, 2013 Resolution, the CA rejected UPLB's argument that its
ruling violated the latter's constitutional right to academic freedom. The CA held that
the writ issued by the Court did not stop the research on Bt talong but only the
particular procedure adopted in the conduct of the field trials and only at this time when
there is yet no law in the form of a congressional enactment for ensuring its safety and
levels of acceptable risks when introduced into the environment.

The CA, in justifying its ruling, relied on the theory that the introduction of a genetically
modified plant into our ecosystem is an "ecologically imbalancing act." The CA noted
that the Bt talong is a technology involving a deliberate alteration of an otherwise
natural state of affairs, designed to alter the natural feed-feeder relationships of the
eggplant.

From the foregoing, the following issues were presented for this Court's resolution: chanRoblesvirtualLawlibrary

1. Legal standing of respondents;

2. Mootness;

3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative

remedies;

4. Application of the law on environmental impact statement/assessment on projects

involving the introduction and propagation of GMOs in the country;

5. Evidence of damage or threat of damage to human health and the environment in

two or more provinces, as a result of the Bt talong field trials;

6. Neglect or unlawful omission committed by the public respondents in connection with

the processing and evaluation of the applications for Bt talong field testing; and

7. Application of the precautionary principle.

Anent the technical aspect of the case, it is clear from the ponencicCs lengthy
discussion that the safety or danger of introduction of GMOs, in general, to the natural
environment through field testing has yet to be settled with scientific certainty, if it
could indeed be settled. Furthermore, the subject matter of the instant petition—that is,
field testing of a GMO—is truly of a highly complex nature and this complexity is
strongly demonstrated by the fact that the matter remains to be hotly debated in the
scientific community. However, it is respectfully submitted that the instant petition can
be resolved, and the right to a balanced and healthful ecology sufficiently protected, on
a purely legal ground.

Anent the invocation of the Precautionary Principle under A.M. No. 09-6-8-SC or the
Court's Rules of Procedure for Environmental Cases, it is submitted that such is not
necessary in the instant petition since, as mentioned, it could be sufficiently settled on
purely legal grounds and without a heavy, if not complete, reliance on the scientific
aspect of the case. As correctly mentioned by the ponencia, it is an evidentiary rule that
must be applied only as a last resort. Thus, if an environmental case can be settled and
the people's environmental rights sufficiently protected without applying this principle,
then the courts should refrain from doing so.

Among the numerous issues presented for this Court's consideration are alleged neglect
or unlawful omission committed by the public respondents in connection with the
processing and evaluation of the applications for Bt talong field testing and the
applicability of the Philippine Environmental Impact Statement System (PEISS) to GMO
field trials. It is in these matters that, in my opinion, the petitioner-agencies failed.

Petitioner-agencies maintain that the subject field trials are not covered by the PEISS.
It is submitted, however, that the PEISS also covers GMO field trials on the following
grounds: chanRoblesvirtualLawlibrary

First, as previously mentioned, EO 514 clearly requires the DENR to ensure that
environmental assessments are done and impacts identified in biosafety
decisions.34 This, in itself, is a clear indication that GMO field trials fall within the
purview of our PEISS.

Under EO 514, "biosafety decisions" apply to the development, adoption and

implementation of all biosafety policies, measures and guidelines and in making
decisions concerning the research, development, handling and use,
transboundary movement, release into the environment and management of
regulated articles.35

Thus, EO 514 calls for the conduct of environmental assessments and impact
identification—which precisely is the purpose of the PEISS— whenever biosafety
decisions are to be made with respect to the research, development, handling and use,
transboundary movement, and release into the environment of regulated articles, which
are, to reiterate, GMOs. To my mind, "making [biosafety] decisions concerning the
research, development, handling and use, transboundary movement, release into the
environment and management of regulated articles" include determining the coverage
or non-coverage of a GMO field trial under the PEISS, as well as the propriety of issuing
an ECC or a CNC for a particular project.

Second, the assessment of the direct and indirect impacts of a project on the

biophysical and human environment and ensuring that these impacts are
addressed by appropriate environmental protection and enhancement
measures is the primary concern of the PEISS as declared in Article 1, Section 1
(Basic Policy and Operating Principles) of the DENR AO No. 30 s. 2003 (DAO 30, s.
2003) or the Implementing Rules and Regulations (IRR) for the Philippine
Environmental Impact Statement (EIS) System.

Third, Section 4, paragraph 4.1, Article II of DAO 30, s. 2003, provides that projects
that pose potential significant impact to the environment shall be required to
secure an ECC.

Anent this possibility of negatively affecting the environs, it is argued that the
introduction of the Bt talong to the natural environment in connection with the field
trials will not adversely affect the condition of the field trial sites, banking on the
absence of documented significant and negative impact of the planting of Bt corn in the
Philippines, among others. However, it is curious that in blocking the application of the
precautionary principle, petitioners contradict this prior assertion when they maintained
that field testing is only a part of a continuing study being done to ensure that
the field trials have no significant and negative impact on the environment.
This, to my mind, only goes to show that it is erroneous for them to maintain that the
field trials in question will not adversely affect the environment when they themselves
admit that such is not yet a scientific certainty, hence the conduct of further research
on the matter. And without this certainty that the project will leave no footprint on the
natural environment, as well as a certification to that effect, it should be presumed that
the field trial poses a potential significant impact to the environment for which an ECC
is required.

Fourth, the Revised Procedural Manual for DENR AO No. 30, s. 2003 (Revised Manual)
enumerates the projects that are covered by the PEISS. Said enumeration, as
the ponencia pointed out, includes Group V (Unclassified Projects) which pertains to
those projects using new processes/technologies with uncertain impacts.36

Fifth, Item 8 of said Revised Manual, governing the EIA Report Types and Generic
Contents, requires a Project Description Report (PDR) for Group V projects, to ensure
new processes/technologies or any new unlisted project does not pose harm
to the environment. The Group Y PDR is a basis for either issuance of a CNC or
classification of the project into its proper project group.

Lastly, there is no evidence that a Certificate of Non-Coverage for the Bt

talong field trials was issued by the DENR, through its Environmental
Management Bureau.

To my mind, the above grounds should have prompted the DENR to require from the
project proponents an EIA or at the very least evaluated the project's coverage or non-
coverage as pre-condition to the allowance of the field testing. In this regard, the
DENR—as a member of the NCBP with the clear mandate of making certain
that environmental assessments are done in the conduct of GMO research, and
as the agency tasked to enforce the PEISS—may have been remiss in its duty.

It may be that there is a confusion as to the requirements before field testing a GMO
may be allowed considering that the regulation that governs applications therefor, that
is, DA AO No. 8, s. 2002, makes no mention of the necessity of an EIA or the
applicability of the PEISS. Additionally, per the NCBP's Report,37 it was pointed out that
the applicability of the PEISS to field trials was a hotly discussed issue. While securing
an ECC or a CNC was the perceived requirement for EIA in biosafety valuations, there
were those who argued that the EIA can take many years to conduct and cost millions
of pesos and could, therefore, delay field tests and discourage proponents. It was
likewise maintained that under the present practice of the NCBP, the confinement
afforded by the screenhouse and/or contained fields already provides a means to
prevent or minimize any adverse environmental impact and, thus, an EIA may not be
required.

Per said Report, however, it was also stated that an environmental

assessment may be required when a confined field test involves new species,
organisms or novel modifications that raise new issues. Considering that data on
the Bt talong, as admitted by the proponents, is still being collected through research
and field trials, and that its effects not only on the environment but also on human
health are yet to be determined with scientific certainty, caution calls that the DENR-
EMB should have applied the required standard of precaution under EO 514, which
requires that the precautionary approach shall guide biosafety decisions in accordance
with Principle 15 of the Rio Declaration of 199238 and the relevant provisions of the
Cartagena Protocol on Biosafety, in particular Articles 1,39 10 (par.6)40 and 11 (par.
8)41 thereof.42 In this respect, EO 514 requires thusly:
SECTION 5. DECISION-MAKING PROCESSES

Biosafety decisions shall be made in accordance with existing laws and the following
guidelines:chanRoblesvirtualLawlibrary

Standard of Precaution. In accordance with Article 10 (par. 6) and Article 11 (par. 8) of

the Cartagena Protocol on Biosafety, lack of scientific certainty or consensus due
to insufficient relevant scientific information and knowledge regarding the
extent of the potential adverse effects of a genetically modified organism on
the environment, particularly on the conservation and sustainable use of biological
diversity, and on human health, shall not prevent concerned government
departments and agencies from taking the appropriate decision to avoid or
minimize such potential adverse effects. In such cases, concerned government
department and agencies shall take the necessary action to protect public
interest and welfare.
Thus, in case there was, indeed, doubt as to the applicability or non-applicability of the
PEISS to biotechnology research, the DENR-EMB, in accordance with its mandate,
should have observed such standard of precaution and applied the PEISS to field trials
of GMOs by requiring from project proponents the prior securing of an ECC or a CNC.

Additionally, it is but timely to clarify that DA AO No. 8, s. 2002 did not expressly state
that projects falling under its coverage are withdrawn from the operation of the PEISS.
As a matter of fact, the DENR-EMB itself recognizes that "the PEISS is
supplementary and complementary to other existing environmental
laws."43 This is further bolstered by the PEISS' role in relation to the functions of other
government agencies. In this regard, it was highlighted that it is inherent upon the EIA
Process to undertake a comprehensive and integrated approach in the review and
evaluation of environment-related concerns of government agencies (GAs), local
government units (LGUs) and the general public. The subsequent EIA findings shall
provide guidance and recommendations to these entities as a basis for their decision
making process.44

As such, it must be that whenever a project falls within the purview of the PEISS and
DA AO No. 8, s. 2002, as well as other relevant laws, as Philippine biosafety regulations
now stand and as required by the NBF, the project proponent is required to
comply with all applicable statutory or regulatory requirements, not just DA
AO No. 8, s. 2002.

With these, it is respectfully submitted that the omission by the project proponents of
securing an ECC or CNC, whichever is proper for its project, prior to the conduct of the
field testing, and the DENR-EMB's failure to evaluate GMO field trials within the purview
of the PEISS and simply allowing the trials to be conducted without a prior
determination of whether the conduct of an EIA or the prior securing of an ECC is a
condition sine qua non for its conduct, warrant the issuance of a permanent
environmental protection order directing:

a. herein project proponents to cease and desist from continuing any

pending Bt talong field trials without first complying with other applicable
environmental laws, including the PEISS; and
b. the DENR-EMB to apply the PEISS to GMO field trials.

On these premises, I vote to DENY the petition on the grounds that the project
proponents failed to comply with the requirements under the PEISS and that the DENR-
EMB failed to require from/he project proponents the securing of an ECC or a CNC prior
to the field^testing of the Bt talong.

Endnotes:

1
 Item 3.3, Section 3, EO 514, s. 2006.

2
 Sub-item 3.3.12, Item 3.3, Section 3, EO 514, s. 2006.
3
 Sub-item 3.3.2, Item 3.3, Section 3, EO 514, s. 2006.

4
 Sub-item 3.3.12, Item 3.3, Section 3, EO 514, s. 2006.

5
 Establishing An Environmental Impact Statement System Including Other
Environmental Management Related Measures And For Other Purposes.

6
 Philippine Judicial Academy, A Sourcebook on Environmental Rights and Legal
Remedies, p. 58.

7
B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife preserves
and sanctuaries;

2. Areas set aside as aesthetic potential tourist spots;

3. Areas which constitute the habitat for any endangered or threatened species of
indigenous Philippine Wildlife (flora and fauna);

4. Areas of unique historic, archaeological, or scientific interests;

5. Areas which are traditionally occupied by cultural communities or tribes;

6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards,

floods, typhoons, volcanic activity, etc.);

7. Areas with critical slopes;

8. Areas classified as prime agricultural lands;

9. Recharged areas of aquifers;

10. Water bodies characterized by one or any combination of the following

conditions: chanRoblesvirtualLawlibrary

a. tapped for domestic purposes

b. within the controlled and/or protected areas declared by appropriate authorities

c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the following

conditions: chanRoblesvirtualLawlibrary

 a. with primary pristine and dense young growth;

b. adjoining mouth of major river systems;

c. near or adjacent to traditional productive fry or fishing grounds;

d. which act as natural buffers against shore erosion, strong winds and storm floods;

e. on which people are dependent for their livelihood.

12. Coral reefs, characterized by one or any combinations of the following conditions: chanRoblesvirtualLawlibrary

a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;

c. which act as natural breakwater of coastlines.

8
A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries

b. Iron and steel mills

c. Petroleum and petro-chemical industries including oil and gas

d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects

b. Forestry projects

1. Logging

2. Major wood processing projects

3. Introduction of fauna (exotic-animals) in public/private forests

4. Forest occupancy

5. Extraction of mangrove products

6. Grazing

c. Fishery Projects

1. Dikes for/and fishpond development projects

III. Infrastructure Projects

a. Major dams

b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)

c. Major reclamation projects

d. Major roads and bridges

9
Republic v. City of Davao, G.R. No. 148622, September 12, 2002, 388 SCRA 691.

10
 Section 4, PD 1586.

11
 Sec. 5, PD 1586.

12
Evolution of the Philippine Biosafety System, Department of Agriculture-Bureau of
Plant Industry, http://biotech.da.gov.ph/. Last accessed, December 7, 2015.

13] 
http://www.ncbp.dost.gov.ph/19-guidelines/24-executive-order-no-430-s-1990. Last
accessed November 23, 2015.

14
 WHEREAS, the impact qf the new technologies on health, agriculture, chemical and
pharmaceutical, and environment and natural resources has been a continuing
worldwide concern of many countries;

WHEREAS, biotechnology ha? high potential to improve the quality of human life may
have concomitant risks and hazards to health Safety, the environment and society;

WHEREAS, the hazards associated with the processes and the products of researches in
biotechnology may be minimized, if hot totally eliminated, by the different containment
levels and procedures observed in the laboratories and greenhouses;

WHEREAS, most of the risks are associated with the field testing and eventual
deliberate release of genetically manipulated/engineered orjganisms into the
environment;

WHEREAS, there is a need to iconstitute a body that shall undertake the study and
evaluation of existing laws, policies and guidelines bn biotechnology and its related
matters, and recommend such measures for its effective utilization and prevention of
possible pernicious effects in the environment. (EO 430, s. 1990)

15
 Section 4, EO 430 s. 1990.

16
NCBP Monograph dated May 15, 1998.

17
 SECTION 9. REPEALING CLAUSE All provisions of the Philippine Biosafety Guidelines
(1991 edition), particularly Part III, paragraph 2.3 (Field release of Regulated
Materials), which are inconsistent with this Monograph are hereby repealed.

18
 p. 15, Biosafety Regulations in the Philippines: A Review of the First fifteen Years,
Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the
Philippines (NCBP), by the National Academy on Science and Technology (NAST),
Department of Science and Technology (DOST), NCBP, and the Program for Biosafety
Systems (2009).

19
 Id.

20
 Item A, Section 2, DA AO No. 8, s. 2002.

21
 Item B, Section 2, DA AO No. 8, s. 2002.

22
 pp. 29-30, Biosafety Regulations in the Philippines: A Review of the First fifteen
Years, Preparing for the Next Fifteen, A Report of the National Committee on Biosafety
of the Philippines (NCBP), by the National Academy on Science and Technology (NAST),
Department of Science and Technology (DOST), NCBP, and the Program for Biosafety
Systems (2009).

23
 p. 15, Biosafety Regulations in the Philippines: A Review of the First fifteen Years,
Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the
Philippines (NCBP), by the National Academy on Science and Technology (NAST),
Department of Science and Technology (DOST), NCBP, and the Program for Biosafety
Systems (2009).

24
 WHEREAS, there is a need to enhance the existing biosafety framework to better
respond to the challenges presented by further advances in modern biotechnology and
to comply with the administrative requirements of the Cartagena Protocol on Biosafety.

25
 Sub-section 4.2 (Composition of the NCBP), Section 4 (Administrative Framework)
(EO 514).

26
 SECTION 4. ADMINISTRATIVE FRAMEWORK. The administrative mechanism for
biosafety decisions shall be as follows:
chanRoblesvirtualLawlibrary

(a) National scientific and technical biosafety standards and standards on methods and
procedures for ensuring biosafety in the country shall be set by the NCBP consistent
with existing laws: Basic policies on addressing public interests on biosafety shall be
developed by the NCBP, provided the same are consistent with law and if such policies
are found insufficiently addressed in existing mandates and regulations of pertinent
agencies;

(b) Member-agencies of the NCBP shall continue to perform their regulatory functions in
accordance with their legal mandates, provided that their policies and programs relating
to biosafety shall be discussed in the NCBP for purposes of harmonization with other
agencies' functions;

(c) Other concerned agencies shall coordinate with NCBP on matters that may affect
biosafety decisions as provided in Sections 4.7 to 4.14;

(d) Administrative functions required under the Cartagena Protocol on Biosafety shall be
performed by agencies as provided in Section 4.14 and 4.15; and,
(e) The role of stakeholders and the general public shall be recognized and taken into
account as provided in Sections 6 and 7. (EO 514)

27
 Item 4.8, Section 4 [Administrative Framework], EO 514.

28
 Item 4.7, Section 4 [Administrative Framework], EO 514.

29
 Item 4.9, Section 4 [Administrative Framework], EO 514.

30
 Section 8. Repealing and Amending Clause. All orders, rules and regulations or parts
thereto which are inconsistent with any of the provisions of this Order are hereby
repealed or amended accordingly. For the avoidance of doubt, the following issuances,
unless amended by the respective issuing departments or agencies, shall continue to be
in force and effect: Department of Agriculture Administrative Order No. 008, s. 2002;
the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except
for provisions on potentially harmful exotic species which are hereby repealed; and all
Bureau of Food and Drugs issuances on products of modern biotechnology.

31
 The NCBP reviews proposals on modern biotechnology applications for the benefit of
the final approving bodies (agencies which have regulatory functions on specific areas
such as the Department of Agriculture's Bureau of Plant Industry or the Department of
Health or the Department of Environment and Natural Resources which are official
members of the NCBP). The NCBP's actions of "approval" or "disapproval" of
biotechnology applications is restricted to "research and development, technical aspects
(whether or not, on the basis of existing science, safety risk are considered
acceptable); scientific advice (i.e., it is directed to pertinent line agencies to provide
them a basis for acting on proposed applications; its action ("approved" or
"disapproved") is not a final permission to do the application; its action does not
preclude any other requirements of laws or by line agencies; final permission is to be
granted by appropriate line agencies." [Biosafety Regulations in the Philippines: A
Review of the First fifteen Years, Preparing for the Next Fifteen, A Report of the
National Committee on Biosafety of the Philippines (NCBP), by the National Academy on
Science and Technology (NAST), Department of Science and Technology (DOST), NCBP,
and the Program for Biosafety Systems (2009), p. 15]
32
 Role of Environment Impact Assessment. The application of the EIA System to
biosafety decisions shall be determined by concerned departments and agencies subject
to the requirements of law and the standards set by the NCBP. Where applicable and
under the coordination of the NCBP, concerned departments and agencies shall issue
joint guidelines on the matter. [Item 5.3, Section 5, EO 514].

33
 Item 4.9, Section 4 [Administrative Framework], EO 514.

34
 Id.

35
 Item 3.3 [Definitions], Section 3 [Scope, Objectives and Definitions], EO 514.

36
See List of Covered Projects of the Philippine E1S System, item (g), Revised
Procedural Manual for DENR AO No. 30 s. 2003 [DAO 03-30].
37
Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing
for the Next Fifteen, A Report of the National Committee on Biosafety of the Philippines
(NCBP), by the National Academy on Science and Technology (NAST), Department of
Science and Technology (DOST), NCBP, and the Program for Biosafety Systems (2009).

38
 Principle 15 - In order to protect the environment, the precautionary approach shall
be widely applied by States according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation.

39
 Article 1 [Objective] - In accordance with the precautionary approach contained in
Principle 15 of the Rio Declaration on Environment and Development, the objective of
this Protocol is to contribute to ensuring an adequate level of protection in the field of
the safe transfer, handling and use of living modified organisms resulting from modern
biotechnology that may have adverse effects on the conservation and sustainable use
of biological diversity, taking also into account risks to human health, and specifically
focusing on transboundary movements.

40
 6. Lack of scientific certainty due to insufficient relevant scientific information and
knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party
from taking a decision, as appropriate, with regard to the import of the living modified
organism in question as referred to in paragraph 3 above, in order to avoid or minimize
such potential adverse effects.

41
 8. Lack of scientific certainty due to insufficient relevant scientific information and
knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party
from taking a decision, as appropriate, with regard'to the import of that living modified
organism intended for direct use as food or feed, or for processing, in order to avoid or
minimize such potential adverse effects.

42
 Item 2.6, EO 514.

43
Overview of the Philippine EIS System (PEISS), Revised Procedural Manual for DENR
AO No. 30 s. 2003, p. 3 [DAO 03-30].

44
 Id. cralawlawlibrary

CONCURRING OPINION

LEONEN, J.:
I concur in the result of the majority's opinion.

The Petition for Writ of Kalikasan of Greenpeace Southeast Asia (Philippines), et al.
(now respondents), insofar as it assails the field testing permit granted to private
petitioners, should have been dismissed and considered moot and academic by the
Court of Appeals. The Petition for Writ of Kalikasan was filed only a few months before
the two-year permit expired and when the field testing activities were already over.
Thus, the pending Petitions which assail the Decision of the Court of Appeals should be
granted principally on this ground. There was grave abuse of discretion which amounts
to excess of jurisdiction.

This does not necessarily mean that petitioners in G.R. No. 209271 can proceed to
commercially propagate Bt talong. Under Department of Agriculture Administrative
Order No. 8, Series of 2002, the proponent should submit a new set of requirements
that will undergo a stringent process of evaluation by the Bureau of Plant Industry and
other agencies. Completion of field testing by itself does not guarantee commercial
propagation.

To recall, the introduction of genetically modified products, ingredients, and processes

requires three (3) mandatory stages of regulatory review. Propagation is not allowed
until there is full field testing. Field testing is not allowed unless there are laboratory
experiments under contained conditions.

Application for each stage has its own set of unique requirements. The standards of
review have their own level of rigor. All the applications for each stage should be
published. Public participation in each stage must not only be allowed but should be
meaningful.

Furthermore, commercial propagation will not happen immediately with Bt

talong because Administrative Order No. 8 is null and void. In its salient parts, it is
inconsistent with the basic guidelines provided in our Constitution, violative of our
binding international obligations contained in the Cartagena Protocol on Biosafety to the
Convention on Biodiversity (Cartagena Protocol), and effectively disregards the
Executive Orders issued by the President in the fields of biodiversity and biosafety.

The effect of the invalidity of Administrative Order No. 8 is that petitioners cannot
proceed further with any field testing or propagation for lack of administrative
guidelines. Any test or propagation of transgenic crops should await valid regulations
from the executive or restatements of policy by Congress.

Furthermore, the Petitions in this case should be granted because the Court of Appeals,
in adopting the "hot tub" method to arrive at its factual findings, gravely abused its
discretion. The transcript of the proceedings presided by the Court of Appeals Division
shows how this method obfuscated further an already complicated legal issue. Courts of
law have a precise and rigorous method to ferret out the facts of a case, a method
which is governed by our published rules of evidence. By disregarding these rules, the
Court of Appeals acted whimsically, capriciously, and arbitrarily.

This is an important case on a novel issue that affects our food security, which touches
on the controversial political, economic, and scientific issues of the introduction of
genetically modified organisms into the consumer mainstream. This court speaks
unanimously in narrowing down the issues and exercising restraint and deference. This
court must allow the competencies of the administrative regulatory bodies and
Congress to fully and meaningfully evolve.

The cessation of the validity of all the biosafety permits issued to the University of the
Philippines Los Banos in June 2012 and the termination of all field trials as of August
10, 2012 render the Petition for Writ of Kalikasan moot and academic.1 The Petition for
Writ of Kalikasan was originally filed before us on April 26, 2012.2

A brief overview of the regulatory process outlined in Administrative Order No. 8 will
assist us in providing a framework to put the Petition in context.

Administrative Order No. 8 recognizes three (3) stages before genetically modified
organisms—as products, ingredients, or processes— may become commercially
available.

The first stage is the Contained Use where research on regulated articles is limited

inside a physical containment facility for purposes of laboratory experimentation.3

The second stage is Field Testing where regulated articles are intentionally introduced
into the environment in a highly regulated manner also for experimental purposes. It is
specifically recognized that in field testing, no specific physical containment measures
shall be undertaken "to limit that contact of the regulated article with ... the general
population and the environment."4 Prior to field testing, the results of the contained
experiments are taken into consideration.

Finally, the Propagation stage is where regulated articles are introduced into

commerce.

Each stage is distinct. Subsequent stages can only proceed if the prior stage/s are
completed and clearance is given to engage in the next regulatory stage. This is evident
from the requisites for conducting each stage.

For contained use, the importation or the removal from point of entry of the material
requires (i) authorization given by the Bureau of Plant Industry; and (ii) a letter of
endorsement issued by the National Committee on Biosafety of the Philippines.5 The
National Committee on Biosafety of the Philippines, on the other hand, proceeds with its
own processes for evaluation of the application for contained use.

Field testing requires that "(i) a Permit to Field Test has been secured from the [Bureau
of Plant Industry]; and (ii) the regulated article has been tested under contained
conditions in the Philippines."6

Release for commercial propagation will not be allowed unless "(i) a Permit for
Propagation has been secured from [the Bureau of Plant Industry]; (ii) it can be
shown that based on field testing conducted in the Philippines, the regulated
article will not pose any significant risks to the environment; (iii) food and/or
feed safety studies show that the regulated article will not pose any significant risks to
human and animal health; and (iv) if the regulated article is a pest-protected plant, its
transformation event has been duly registered with the [Fertilizer and Pesticide
Authority]."7

Clearly, mere completion of a preceding stage is no guarantee that the subsequent

stage shall ensue. While each subsequent stage proceeds from the prior ones, each
stage is subject to its unique set of requisites.

It is, thus, improper to rely on the expectation that commercial propagation of Bt
talong shall ensue after field testing. For the process to proceed to commercial
propagation, the concerned applicants are still required to formally seek the permission
of the Bureau of Plant Industry by filing an application form. There is no presumption
that the Bureau of Plant Industry will favorably rule on any application for commercial
propagation. It is also not a valid presumption that the results of field testing are
always favorable to the proponent for field testing let alone for those who will continue
on to propagation.

The alleged actual controversy in the Petition for Writ of Kalikasan arose out of the
proposal to do field trials. The reliefs in these remedies did not extend far enough to
enjoin the use of the results of the field trials that have been completed. Essentially,
the findings should be the material to provide more rigorous scientific analysis
of the various claims made in relation to Bt talong.

The original Petition was anchored on the broad proposition that respondents' right to a
healthful and balanced ecology was violated on the basis of the grant of the permit.
With the cessation of the validity of the biosafety permits and the actual termination of
all field trials, the very subject of the controversy adverted to by respondents became
moot. Similarly because of the Petition's specificity, the case could not be considered
capable of repetition yet evading review and, thus, an exception to the rule on
mootness.

II

Nevertheless, for the guidance of the bench and bar, the validity of the biosafety
permits is discussed. The biosafety permits should have been declared null and void-
due to the invalidity of Administrative Order No. 8.

Administrative Order No. 8 was created to facilitate agricultural development and

enhance the production of agricultural crops through modern biotechnology.8 As early
as October 15, 1990, President Corazon Aquino recognized the importance of modern
biotechnology and issued Executive Order No. 4309 to create the National Committee on
Biosafety of the Philippines. The National Committee on Biosafety of the Philippines acts
as the body that studies and evaluates the laws, policies, and guidelines relating to
biotechnology.

The role of the National Committee on Biosafety of the Philippines was further
strengthened in 2006 under Executive Order No. 514, which established the National
Biosafety Framework for the Philippines. The Framework applies "to the development,
adoption and implementation of all biosafety policies, measures and guidelines and in
making biosafety decisions concerning the research, development, handling and use,
transboundary movement, release into the environment and management of regulated
articles."10

Currently, there is no legislation in relation to biotechnology or biosafety. The closest

legislation is under Republic Act No. 8435, otherwise known as the Agriculture and
Fisheries Modernization Act of 1997. This law makes it an objective of the state "[t]o
modernize the agriculture and fisheries sectors by transforming these sectors from a
resource-based to a technology-based industry."11 In line with this, Congress initially
allocated 4% of the 10% research and development fund for agriculture to be used to
support the biotechnology program.12

A more recent law, Republic Act No. 10068, otherwise known as the Organic Agriculture
Act of 2010, also promotes the use of biotechnology but specifically excludes genetically
modified organisms.13 The law does not provide regulatory standards for genetically
modified organisms.

Aside from the enactment of domestic executive orders and laws, Administrative Order
No. 8 was enacted to comply with the Cartagena Protocol on Biosafety to the
Convention on Biodiversity. The Convention on Biodiversity came into force on
December 29, 1993, and the Cartagena Protocol on Biosafety supplemented the
Convention on Biodiversity by providing policy standards for biosafety in the use of
living modified organisms.14

On April 3, 2002, then Department of Agriculture Secretary Leonardo Q. Montemayor

issued Administrative Order No. 8, otherwise known as the Rules and Regulations for
the Importation and Release into the Environment of Plants and Plant Products Derived
from the Use of Modern Biotechnology. Administrative Order No. 8, Series of 2002, is a
regulatory mechanism issued pursuant to the state's police power. It is designed to
minimize and manage15 the risks both to human health and to the environment of
genetitally modified organisms or plant products altered or generated through "modern
biotechnology."16 These genetically modified organisms or plant products are, in turn,
results of human ingenuity and legally recognized patentable inventions to which their
creators hold proprietary rights.

III

Two constitutional provisions bear upon the issues relied upon by private respondents
in this case. Both are found in Article II, viz.:
Section 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

Section 16. 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.
Traditionally, these provisions articulate the doctrine that health and ecological
concerns are proper purposes of regulation and, therefore, can be the basis of the
state's exercise of police power.17 Having constitutionally ordained goals and principles
are, per se, compelling state interests.18
Thus, restricting the rights to property and liberties does not deny their holders their
"due process of law" provided there is a discemable rational relationship between the
regulatory measure and these legitimate purposes. We have, prior to the 1987
Constitution, adopted a fairly consistent deferential standard of judicial review
considering that the Congress has more leeway in examining various submissions of a
wider range of experts and has the power to create the forums for democratic
deliberation on various approaches.

In recent times, we have included a higher degree of review of regulatory measures by

requiring that there shall be a judicially discemable demonstration that the measure is
least restrictive of fundamental rights.

Thus, in Serrano v. Gallant Maritime Services,19 this court recognized "three levels of

scrutiny":
There are three levels of scrutiny at which the Court reviews the constitutionality of a
classification embodied in a law: a) the deferential or rational basis scrutiny in which
the challenged classification needs only be shown to be rationally related to serving a
legitimate state interest; b) the middle-tier or intermediate scrutiny in which the
government must show that the challenged classification serves an important state
interest and that the classification is at least substantially related to serving that
interest; and c) strict judicial scrutiny in which a legislative classification which
impermissibly interferes with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden
is upon the government to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive means to protect such
interest.

Under American jurisprudence, strict judicial scrutiny is triggered by suspect

classifications based on race or gender but not when the classification is dnfvvn along
income categories.20 (Citations omitted)
This exacting level of scrutiny has been considered in several instances in recent
jurisprudence. In Estrada v. Escritor,21 this court required the state, through the Office
of the Solicitor General, to show that the means adopted to pursue the state's interest
of preserving the integrity of the judiciary by maintaining a high standard of morality
and decency among its personnel was the least restrictive means vis-a-vis respondent's
religious freedom. More recently, our Decisions in Diocese of Bacolod v. Commission on
Elections22 and Social Weather Stations v. Commission on Elections23 considered the
propriety of measures adopted to regulate speech in the context of political exercises.

The requirement of adopting the least restrictive means requires that respondent
agencies show that there were alternatives considered within the democratic and
deliberative forums mandated by law and that clear standards were considered within
transparent processes. It is not for this court to consider the validity of the standards
chosen. We must, however, be convinced that there is such a standard, that it was
assiduously applied, and the application was consistent.

IV

Sections 15 and 16 of Article II are, thus, not simply hortatory rights. They are as much
a part of the fundamental law as any other provision in the Constitution. They add to
the protection of the right to life in Article III, Section 1.

To recall, this important provision states:

Section 1. No person shall be deprived of life, liberty or property without due process of
law.
This norm is phrased as a traditional limitation on the powers of the state. That is, that
the state's inherent police powers cannot be exercised arbitrarily but must be shown to
have been reasonable and fair.24

The right to life is textually broad to signal the intention that the sphere of autonomy is
assumed to encompass life both in terms of its physical integrity and in terms of its
quality.25
cralawred

Sections 15 and 16, however, impose on the state a positive duty to "promote and
protect" the right to health and to "promote and advance" the right of "the people to a
balanced and healthful ecology." With respect to health and ecology, therefore, the
state is constitutionally mandated to provide affirmative protection. The mandate is in
the nature of an active duty rathe.r than a passive prohibition.

These provisions represent, in no small measure, a shift in the concept of governance in

relation to society's health. It is a recognition that if private actors and entities are left
to themselves, they will pursue motivations which may not be too advantageous to
nutrition or able to reduce the risks of traditional and modern diseases. At best, the
actors may not be aware of their incremental contributions to increasing risks. At
worse, there may be conscious efforts not to examine health consequences of products
and processes introduced in the market. It is expedient for most to consider such costs
as extraneous and affecting their final profit margins.

In short, the constitutional provisions embed the idea that there is no invisible
hand26 that guides participants in the economic market to move toward optimal social
welfare in its broadest developmental sense.

Producers, by their very nature, participate in the market motivated by their objective
to recover costs and maximize their profits. Costs for them usually refer to their
pecuniary expenditures. Costs suffered incidentally by the ecology of the locations of
their factories or by the health of their consumers are not costs which producers readily
and naturally internalize.27 In an unregulated market, they do not spend their capital to
mitigate or remedy these types of damages.28 In many instances, there is the tendency
even to avoid incurring expenses to find out whether these types of damages actually
occur. Environmental damage and health risks are, thus, externalities which are usually
invisible to them. Externalities are costs which remain unrecognized in the private
transaction between the producers and their consumers.

Of course, producers will respond to both the quantity and quality of demand in a
market. In an unregulated market, collective consumer preferences will define the
types of products that producers will sell. In turn, this will provide the strongest
incentive for producers to specialize their products in an efficient and economical
manner.

Consumers, however, are also shaped by the incentives in the market. The nature of
the benefits which defines incentives is likewise framed by the pervading culture.

Health and consciousness may evolve among consumers. There are, for instance, those
who will definitely purchase organic, nontransgenic, and unadulterated food products as
a matter of personal choice. There will also be those who, like rminy of the private
respondents in this case, evolve movements to convince the consumers to shift their
tastes and their preferences.

Choices of consumers also depend on the consciousness that the present culture
sponsors:
Consciousness can be defined as "the way people conceive of the 'natural' and normal
way of doing things, their habitual patterns of talk and action, and their commonsense
understanding of the world."29 ChanRoblesVirtualawlibrary

Legal consciousness, on the other hand, is simply "all the ideas about the nature,
function and operation of law held by anyone in society at a given time."30 This means
that the culture and framework of defining incentives and making choices among our
consumers also depend on the content .of the law and its interpretation in
administrative regulatory issuances and judicial decisions.

The imperative for the state's more active participation in matters that relate to health
and ecology is more salient given these perspectives and the pervasive impact of food
on our population.

At its bare minimum, Sections 15 and 16 imply that the standard to be used by the
state in the discharge of its regulatory oversight should be clear. This is where
Administrative Order No. 8 fails. While providing for processes, it does not refer to any
standard of evaluating the applications to be presented before the Department of
Agriculture or, in field testing, the Scientific Review Technical Panel. There are many of
such standards available based on best practices. For instance, the regulators may be
required to evaluate applications so that there is a scientific demonstration of a
"reasonable certainty of no harm"31 to both health and environment in all aspects in the
creation, testing, and propagation of genetically modified ingredients, processes, or
products.

Without these standards, Sections 15 and 16 become meaningless. Hence, in this

regard, Administrative Order No. 8 is null and void.

In addition to constitutional provisions under Article II, the Philippines also sources its
environmental obligations from conventions and subsequent protocols. On May 24,
2000, the Philippines became one of the signatories to the Cartagena Protocol on
Biosafety to the Convention on Biodiversity.32 By September 11, 2003, the Cartagena
Protocol entered into force in the Philippines.33

The Cartagena Protocol's objective is to ensure "an adequate level of protection in the
field of the safe transfer, handling and use of living modified organisms resulting from
modern biotechnology. . . ."34 Article 23 of the Cartagena Protocol35 stresses that the
public must be consulted in the decision-making process regarding living modified
organisms, and that the decisions made with this regard must be communicated to the
public.36

The Cartagena Protocol emphasizes that risk assessment should be carried out in a
scientifically sound manner.37 In addition, Annex III of the Cartagena Protocol also
provides that risk assessment must also be done in a transparent manner.38

Subsequent executive actions reflect the obligations of the Philippines under the
Cartagena Protocol. Executive Order No. 514, which established the National Biosafety
Framework, was enacted "to comply with the administrative requirements of the
Cartagena Protocol on Biosafety," among other reasons.39 Executive Order No. 514
restructured the National Committee on Biosafety of the Philippines, an interagency,
multisectoral body in charge of the National Biosafety Framework.40

The National Biosafety Framework has provisions on Access to Information (Section

6)41 and Public Participation (Section 7).42 The provisions envision a culture of constant
communication and feedback from the public regarding biosafety decisions, risk
assessment processes, product monitoring, and product identification.

Executive Order No. 514, while not a statute, provides binding policies and rules for the
executive agencies of government in their task of implementing its legal obligations
under the Cartagena Protocol. Hence, all actions of agencies involved in the execution
of biosafety in the Philippines must follow the Cartagena Protocol, the National
Biosafety Framework, and our Constitution.

Like the National Biosafety Framework established by Executive Order No. 514,
Administrative Order No. 8 cites the Cartagena Protocol as a source of obligation of the
state to regulate transgenic plants.43

Administrative Order No. 8 fails to meet certain standards required under the Cartagena
Protocol.

This Order requires an applicant for field testing of a regulated article to create an
Institutional Biosafety Committee. It is the applicant who chooses the members of the
Institutional Biosafety Committee.

The composition of the Institutional Biosafety Committee includes three scientist

members and two community representatives who "shall not be affiliated with the
applicant apart from being members of its [Institutional Biosafety Committee] and shall
be in a position to represent the interests of the communities where the field testing is
to be conducted."44 As an apparent assurance for the lack of bias of these community
representatives, the National Committee on Biosafety of the Philippines must approve
the composition of the Institutional Biosafety Committee.45

The manner of choosing the composition of the Institutional Biosafety Committee is

problematic. It reduces meaningful compliance in our commitments enunciated in the
Cartagena Protocol into mere artifice. It defies the guidelines set by the National
Biosafety Framework.

Both the Cartagena Protocol and National Biosafety Framework require participation
from community members. However, in Administrative Order No. 8, the applicant has
the initial choice as to the community representatives who will participate as members
of the Institutional Biosafety Committee. The approval by the National Committee on
Biosafety of the Philippines is not a sufficient mechanism to check this discretion. This
interagency committee can only approve or disapprove community representatives that
were already selected by the applicant. The applicant does not have any incentive to
choose the critical community representatives. The tendency would be to choose those
whose dissenting voices are tolerable. Worse, the National Committee on Biosafety of
the fl Philippines, apart from not being a sufficient oversight for people's participation,
is a government body. A government body is not the community that should
supposedly be represented in the Institutional Biosafety Committee.

In addition, there are other problems with public participation in Administrative Order
No. 8. For field testing under Administrative Order No. 8, the only opportunity for public
participation is under Sections 8(G) and 8(H). Under Section 8(G), the public
consultation on an application is prompted by the posting of the Public Information
Sheet on Field Testing, which shall be posted in three conspicuous places in the
barangay/city/municipality for three consecutive weeks. The interested party is given
thirty (30) days within which to file a written comment on the application.

The posting of the Public Information Sheet in three conspicuous places near the field
testing site is not enough to raise awareness regarding the field testing being applied
for. The subject matter in transgenic transformation is too complex and its
consequences too pervasive as to simply leave this through the fictional notice of public
posting. The positive duty of the state requires more in terms of the creation of public
awareness and understanding. For instance, the Department of Agriculture is
competent and large enough so as to make actual face to face community meetings
reasonable.

Also, under the National Biosafety Framework, there must be posting on the Internet to
capture the attention of relevant stakeholders.46 This is not required under Section
8(G).

The mechanism under Administrative Order No. 8 does not even require that local
government authorities be apprised about the proposed field testing. Certainly,
engaging local government authorities invites more meaningful public discourse.

Section 8(H) requires the creation of a Scientific and Technical Review Panel. This is a
group of three independent scientists that reviews the risk assessment conducted by
the Institutional Biosafety Committee. The Scientific and Technical Review Panel does
not have a community representative. It is also tasked to evaluate—based on the
individual scientist's own standards—whether the proposed field testing poses
significant risks on human health and the environment. How the points raised during
the mandatory public hearings will be considered in the issuance of the field testing
permits is not covered by Administrative Order No. 8. In this regard, there is no
standard or process.

The nonchalant attitude of the regulatory framework is best seen in this case.
Petitioners alleged that there was some public consultation prior to field testing. These
consultations, however, were not documented. The only proof of such consultation was
a bare allegation made by Miss Merle Palacpac of the Department of Agriculture in her
judicial affidavit.47

The absence of an effective mechanism for public feedback during the application
process for field testing means that Administrative Order No. 8 fails in meeting the
public participation requirement of the Cartagena Protocol and the National Biosafety
Framework. The current mechanisms have all the badges of a "greenwash":48 merely an
exhibition of symbolic compliance to environmental and biosafety policy.

The insouciant approach to public participation during the application process

is obvious as there is no appeal procedure for third parties under
Administrative Order No. 8. The regulation does not consider that communities
affected may want to question the exercise of discretion by the Department of
Agriculture or the Bureau of Plant Industry. Section 18 of Administrative Order No. 8
only covers appeals for "[a]ny person whose permit has been revoked or has been
denied a permit or whose petition for delisting has been denied by the Director of
[Bureau of Plant Industry]." Procedural due process is taken away from the public.

VI

Due to these fundamental deficiencies, Administrative Order No. 8 is null and void. In
its present form, it cannot be used as the guidelines to regulate further field testing or
commercial propagation of Bt talong. Until a law or a new regulation is passed
consistent with the Constitution, our treaty obligations, and our laws, no genetically
modified ingredient process or product can be alloVved to be imported, field tested, or
commercially propagated.

VII

Science is not just a body of knowledge; it is the result of the application of the
scientific methodology.49 The direction of the methodology depends on the objective of
each study or research. The scientific methodology tests a hypothesis, or a proposed
statement of relationships between factors or variables that acts as a tentative answer
to a specific research question.50

From the hypothesis, a scientist reviews related literature and records observations
relating to the hypothesis. Sampling, observations, and measurements must
be accurate and replicable. These areas are vulnerable to errors that may distort a
research's conclusions.51 In order to confirm found observations, a scientist can design
tests in order to make observations under controlled conditions.52

This basic process is also found in the environmental risk assessments conducted for
transgenic crops. There are four important steps in Environmental Risk Assessments: chanRoblesvirtualLawlibrary

(1) Initial evaluation - This step determines whether risk assessment is required.

(2) Problem formulation - This step involves the formulation of risk hypothesis to be
tested in the laboratory and field. An example of a risk hypothesis is whether the
transgenic crop affects nontargeted organisms.

(3) Controlled experiment and gathering information - These are done first in the
laboratory, and then under controlled field conditions.

(4) Risk evaluation53

The results of scientific experimentation with transgenic crops form part of science.
However, these research articles must be rigorously and deliberately examined to
scrutinize their subject matter, the hypothesis and methodology deployed, and the
cogency of the conclusions drawn from the observed findings.

Certainly, the conclusions in studies concerning Bt maize may not always be valid with
respect to Bt talong. Some of the variables may be the same. Obviously, both
transgenic crops include the vector bacillus thuringiensis. However, there will also be
obvious differences because of the difference of the crops, their behavior in various
environments, the manner in which-they reproduce, their uses, and their
consequences.

Currently, there is more literature regarding the viability and safety of Bt maize
because it is already being commercially propagated. On the other hand, Bt talong is
still being studied and assessed and is not yet ready for commercial release. The
application for field testing for Bt talong under the correct conditions is itself part of the
scientific inquiry to test hypotheses both for or against its propagation.

The Court of Appeals, instead of relying on these standards of science, employed a "hot
tub" examination of experts. It took into account literature on Bt maize or Bt cotton,
and various arguments and studies conducted for Bt maize. It then made conclusions,
without a rigorous explanation of its methodology and standards for credibility, from
these studies.

Without these rigorous explanations, the Court of Appeals committed grave abuse of
discretion when it considered Bt maize research. Ideally, the Court of Appeals should
have scrutinized the results of the contained experimentation with respect to Bt
talong because the results were the basis for the Bureau of Plant Industry's allowance
of field testing.54 It should have examined whether the experimentation conducted may
be replicated and whether it will yield the same result.

The experts could have also been asked individually about the results of contained
experimentation and if the contained experiments answered research objectives
relating not only to the viability of the product, but the impact to the environment
should the product undergo field testing. The first objective is in line with the
commercial interests of the applicant, while the latter objective is more in tune with the
state's policy of protecting the right of the people to a balanced and healthful ecology.
The imposition of the latter objective should* have been the role of the Bureau of Plant
Industry because it was the authorizing agency for field testing permits.

The Court of Appeals committed grave abuse of discretion by relying only on the study
of Dr. Gilles-Eric Seralini who made a study involving a completely different transgenic
crop. This court tasked the Court of Appeals to assess the propriety of the issuance of
field testing permits with respect to Bt talong, not to draw conclusions about Bt
talong based on one scientific literature on Bt maize.
The results of the field testing of Bt talong should still be subject to confirmatory tests
involving the same variables in order to attain a level of statistical reliability. However,
these subsequent field testing must be done under regulations consistent with our
Constitution and international obligations. They must be conducted under a regulatory
agency that will have the competence to be actively involved in the scientific inquiry.

VIII

The results of this case are neither an endorsement nor a repudiation of genetically
modified ingredients, processes, and food products. This should neither be interpreted
as a rebuke of the avowed mandates of respondents, many of whom have distinguished
themselves in their advocacies.

Certainly, there is a need for leaders, organizations, and dedicated movements that
amplify the concerns of communities, groups, and identities which tend to be put in the
margins of forums dominated by larger and more politically connected commercial
interests. This includes forums that create and implement regulatory frameworks.
Liberal democratic deliberations at times fail to represent the silenced majority as it
succumbs to the powerful minority.

While acknowledging this reality, we also need to be careful that the chambers of this
court do not substitute for the needed political debate on public issues or the analytical
rigor required by truths in science. We are Justices primarily. While politics and science
envelope some of our important decisions, we should not lose the humility that the
Constitution itself requires of us. We are an important part of the constitutional order:
always only a part, never one that should dominate. Our decisions have the veneer of
finality. It should never, however, be disguised superiority in any form or manner.

Political debates indeed also mature when we pronounce the nature of fundamental
rights in concrete cases. Before cases ripen—or, as in this case, when it has become
moot—restraint will be the better approach. We participate in the shaping of the
content of these fundamental rights only with the guidance of an actual case. This,
among others, distinguishes the judicial function from the purely political engagement.

Restraint is especially required when the remedy chosen is a Petition for the issuance of
a Writ of Kalikasan, which is designed to prevent an actual or imminent environmental
catastrophe. Again, in this case, the field testing ended. There is yet no permit to
commercially propagate Bt talong. The results of the field testing of the genetically
modified food crop have not been presented for evaluation by any of the relevant
agencies charged with its eventual regulation. Moreover, the results of the field testing
have not been presented for proper public scrutiny.

If any, the resolution of this case implies rigor in environmental advocacy. Vigilance and
passion are the hallmarks of the public interest movement. There is no reason that the
members of this movement should not evolve the proper skills and attitudes to properly
work the legal system and understand the role of the judicial process. Environmental
advocacy also requires an understanding of science and the locating of the proper place
of various norms such as the precautionary principle. After all, representation of
marginalized community voices deserves excellent representation and responsible
leadership. Filing a judicial remedy almost two years too late and without the required
scientific rigor patently required by the allegations and the arguments misses these
standards.

But, we cannot "just leave things as they are especially when patent unconstitutional
provisions surface and where deference will amount to a denial of the positive
constitutional duties we are required to discharge. There are grave errors in
Administrative Order No. 8 that stack decisions made by the Department of Agriculture
and the Bureau of Plant Industry in favor of the commercial applicant. We have so far
only evaluated the provisions in accordance with law and found them wanting. By
declaring Administrative Order No. 8 null and void, there is now incentive for either
Congress or our administrative bodies to review the present regulatory framework and
bring it not only to legal fiat but also to address all concerns including those voiced by
respondents in this case.

Food safety and food security are vital for the assurance of human dignity. We can only
hope that the complex issues relating to genetic modification of the food we eat be
debated deliberately, vigorously, and with all the scientific rigor and rationality required
in the proper public forums. Food safety and food security are complex issues requiring
the benefit of all the wisdom of all our people.

ACCORDINGLY, I vote to declare Administrative Order No. 8, Series of 2002, of the

Department of Agriculture null and void, being violative of the Constitution, our treaty
obligations under the Cartagena Protocol, and the instructions of the President under
Executive Order No. 514.
Oposa vs Factoran

Natural and Environmental Laws; Constitutional Law: Intergenerational Responsibility

GR No. 101083; July 30 1993

FACTS:

A taxpayer’s class suit was filed by minors Juan Antonio Oposa, et al., representing their generation
and generations yet unborn, and represented by their parents against Fulgencio Factoran Jr.,
Secretary of DENR. They prayed that judgment be rendered ordering the defendant, his agents,
representatives and other persons acting in his behalf to:

           1.       Cancel all existing Timber Licensing Agreements (TLA) in the country;

           2.       Cease and desist from receiving, accepting, processing, renewing, or appraising new TLAs;

and granting the plaintiffs “such other reliefs just and equitable under the premises.” They alleged
that they have a clear and constitutional right to a balanced and healthful ecology and are entitled
to protection by the State in its capacity as parens patriae. Furthermore, they claim that the act of
the defendant in allowing TLA holders to cut and deforest the remaining forests constitutes a
misappropriation and/or impairment of the natural resources property he holds in trust for the
benefit of the plaintiff minors and succeeding generations.

The defendant filed a motion to dismiss the complaint on the following grounds:

           1.       Plaintiffs have no cause of action against him;

3. The issues raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of the government.

ISSUE:

Do the petitioner-minors have a cause of action in filing a class suit to “prevent the
misappropriation or impairment of Philippine rainforests?”

HELD:

Yes. Petitioner-minors assert that they represent their generation as well as generations to come.
The Supreme Court ruled that they can, for themselves, for others of their generation, and for the
succeeding generation, file a class suit. Their personality to sue in behalf of succeeding generations
is based on the concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right considers the “rhythm and harmony of nature” which
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country’s forest, mineral, land, waters, fisheries, wildlife, offshore areas and
other natural resources to the end that their exploration, development, and utilization be equitably
accessible to the present as well as the future generations.

Needless to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the
minor’s assertion of their right to a sound environment constitutes at the same time, the
performance of their obligation to ensure the protection of that right for the generations to come.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and
NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented
by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE
MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS
BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational
responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati,
Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal
plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His substitution in this petition by the
new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the
petitioners.  The complaint  was instituted as a taxpayers' class suit  and alleges that the plaintiffs
1 2 3

"are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same
was filed for themselves and others who are equally concerned about the preservation of said
resource but are "so numerous that it is impracticable to bring them all before the Court." The minors
further asseverate that they "represent their generation as well as generations yet
unborn."  Consequently, it is prayed for that judgment be rendered:
4

. . . ordering defendant, his agents, representatives and other persons acting in his
behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands
has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant
rainforests in which varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the
habitat of indigenous Philippine cultures which have existed, endured and flourished since time
immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest
cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses;
the distortion and disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying up of the water
table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of
the water table as a result of the intrusion therein of salt water, incontrovertible examples of which
may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and
the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of the
entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and
varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i)
the floodings of lowlands and agricultural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for domestic uses, irrigation and the
generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of
global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted as a
matter of judicial notice. This notwithstanding, they expressed their intention to present expert
witnesses as well as documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares
of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and uneconomical secondary growth
forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of
3.89 million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached
as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25

hectares per hour — nighttime, Saturdays, Sundays and holidays included — the
Philippines will be bereft of forest resources after the end of this ensuing decade, if
not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation and
to generations yet unborn are evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs —
especially plaintiff minors and their successors — who may never see, use, benefit
from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural

resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology
and are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office.
On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all
logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna
and indigenous cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to

the public policy enunciated in the Philippine Environmental Policy which, in pertinent
part, states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of

dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's

is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of the
Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

 c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section
14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the natural
law — and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth.  6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him
and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the
petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the
motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's
abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss.  In the said order, not only was the defendant's claim — that the complaint states no cause
7

of action against him and that it raises a political question — sustained, the respondent Judge further
ruled that the granting of the relief prayed for would result in the impairment of contracts which is
prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the dismissal order on the ground that the
respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have also joined the latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit
their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf
of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20
and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating
the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy),
Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and
healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners
likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard
the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts. They
likewise submit that even if TLAs may be considered protected by the said clause, it is well settled
that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law. They
see nothing in the complaint but vague and nebulous allegations concerning an "environmental right"
which supposedly entitles the petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be permitted in the country is a
political question which should be properly addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners' resources is not to file an action to court, but
to lobby before Congress for the passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done
by the State without due process of law. Once issued, a TLA remains effective for a certain period of
time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to have violated the terms
of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take
issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that
the plaintiffs therein are numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule
3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the
latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent
their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.  Such rhythm
9

and harmony indispensably include, inter alia, the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their exploration, development and utilization be
equitably accessible to the present as well as future generations.   Needless to say, every
10

generation has a responsibility to the next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time, the performance of their obligation to
ensure the protection of that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits
of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of
the issues raised and arguments adduced by the parties, We do not hesitate to find for the
petitioners and rule against the respondent Judge's challenged order for having been issued with
grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order
reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help
but agree with the defendant. For although we believe that plaintiffs have but the
noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a
specific legal right they are seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action
in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of
by this Court without doing violence to the sacred principle of "Separation of Powers"
of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law.  11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the
complaint is replete with vague assumptions and conclusions based on unverified data. A reading of
the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. 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.

This right unites with the right to health which is provided for in the preceding section
of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and
fittingly stressed by the petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its framers that
unless the rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the second, the day would not be too
far when all else would be lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all
forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment

necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance.  12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as
well as the other related provisions of the Constitution concerning the conservation, development
and utilization of the country's natural resources,   then President Corazon C. Aquino promulgated
13

on 10 June 1987 E.O. No. 192,   Section 4 of which expressly mandates that the Department of
14

Environment and Natural Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in reservation
and watershed areas, and lands of the public domain, as well as the licensing and regulation of all
natural resources as may be provided for by law in order to ensure equitable sharing of the benefits
derived therefrom for the welfare of the present and future generations of Filipinos." Section 3
thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure
the sustainable use, development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other natural resources, including
the protection and enhancement of the quality of the environment, and equitable
access of the different segments of the population to the development and the use of
the country's natural resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize and apply a true
 value system including social and environmental cost implications relative to their
utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,  specifically in Section 1 thereof which reads:
15

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.

(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other
hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the
fact of the agency's being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall
be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration, development,
utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as
the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a)
to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-being."   As its goal, it speaks of
16

the "responsibilities of each generation as trustee and guardian of the environment for succeeding
generations."   The latter statute, on the other hand, gave flesh to the said policy.
17

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is
as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under
E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs,
which they claim was done with grave abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed
or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other;
and its essential elements are legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation of said legal right.  18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails
to state a cause of action,   the question submitted to the court for resolution involves the sufficiency
19

of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the
truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically
admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true,
may the court render a valid judgment in accordance with the prayer in the complaint?   In Militante
20

vs. Edrosolano,   this Court laid down the rule that the judiciary should "exercise the utmost care and
21

circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens,
there is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF
ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the
basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not squarely
put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already
formulated and expressed in legislation. It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The
second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law,   Mr. Justice Isagani A. Cruz, a
22

distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to enable the courts of justice
to review what was before forbidden territory, to wit, the discretion of the political
departments of the government.
 As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive and
the legislature and to declare their acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion. The catch, of course, is the meaning
of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson,   Mr. Justice Cruz, now speaking for this Court, noted:
23

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue presented
before us was political in nature, we would still not be precluded from revolving it
under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question. Article VII, Section 1, of the Constitution clearly
provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law.  24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even
invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted
with utmost infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound the Government to
strictly respect the said licenses according to their terms and conditions regardless of changes in
policy and the demands of public interest and welfare. He was aware that as correctly pointed out by
the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other
form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not
a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry,   this Court held:
25

. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and

is not a contract between the authority, federal, state, or municipal, granting it and
 the person to whom it is granted; neither is it property or a property right, nor does it
create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary:  26

. . . Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be gainsaid that they merely
evidence a privilege granted by the State to qualified entities, and do not vest in the
latter a permanent or irrevocable right to the particular concession area and the
forest products therein. They may be validly amended, modified, replaced or
rescinded by the Chief Executive when national interests so require. Thus, they are
not deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed.  27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does
not involve a law or even an executive issuance declaring the cancellation or modification of existing
timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or modifications, the same
cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very
nature and purpose, such as law could have only been passed in the exercise of the police power of
the state for the purpose of advancing the right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp.   this Court stated:
28

The freedom of contract, under our system of government, is not meant to be

absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other words,
the constitutional guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York,   quoted in Philippine American
29

Life Insurance Co. vs. Auditor General,  to wit:

30

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public to regulate
it in the common interest.
In short, the non-impairment clause must yield to the police power of the state.  31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases of renewal, no contract would have as
of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it
as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby
set aside. The petitioners may therefore amend their complaint to implead as defendants the holders
or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ.,
concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction and
course of the protection and management of the environment, which of course embraces the
utilization of all the natural resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim
that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal
interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness
of the concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of
environmental protection, as against both the public administrative agency directly concerned and
the private persons or entities operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or whether some failure
to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is
no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest,
with very great respect, that it cannot be characterized as "specific," without doing excessive
violence to language. It is in fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful ecology." The list of particular
claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil,
chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil
rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open
land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book
IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide
range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

 (vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine
Environment Code identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of the headings and
sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear
to contemplate action on the part of private persons who are beneficiaries of implementation of that
Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in
the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section
16) of Article II of the Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases; those implications are
too large and far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
— a right cast in language of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render judgment granting all or part of the
relief prayed for. To my mind, the Court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be
a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
 professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms
and conditions of their concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to dispute the existence
of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction and
course of the protection and management of the environment, which of course embraces the
utilization of all the natural resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim
that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal
interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness
of the concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of
environmental protection, as against both the public administrative agency directly concerned and
the private persons or entities operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or whether some failure
to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is
no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest,
with very great respect, that it cannot be characterized as "specific," without doing excessive
violence to language. It is in fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful ecology." The list of particular
claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil,
chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil
rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open
land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book
IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide
range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine
Environment Code identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of the headings and
sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear
to contemplate action on the part of private persons who are beneficiaries of implementation of that
Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in
the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section
16) of Article II of the Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases; those implications are
too large and far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
— a right cast in language of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render judgment granting all or part of the
relief prayed for. To my mind, the Court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be
a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments —
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms
and conditions of their concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to dispute the existence
of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.
RESIDENT MARINE MAMMALS OF PROTECTED SEASCAPE TANON STRAIT v.
SECRETARY ANGELO REYES, GR No. 180771, 2015-04-21
Facts:
Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine Mammals"
in the petition, are the toothed whales, dolphins, porpoises, and o
Issues:
d Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal guardians and as friends (to be
collectively known as "the Stewards") who allegedly empathize with, and seek the
protection of, the aforementioned marine species. Also impleaded as an unwilling co-
petitioner is... former Presid
Ruling:
181527 are the Central Visayas Fisherfolk Development Center (FIDEC), a non-stock, non-
profit, non-governmental organization, established for the welfare of the marginal fisherfolk
in Region VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong)... and Fran
Principles:
In Oposa, we allowed the suit to be brought in the name of generations yet... unborn "based
on the concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned."[56] Furthermore, we said that the right to a balanced and
healthful ecology, a right that does not even need to be... stated in our Constitution as it is
assumed to exist from the inception of humankind, carries with it the correlative duty to
refrain from impairing the environment.[
A constitution is a system of fundamental laws for the governance and administration of a
nation. It is supreme, imperious, absolute and unalterable except by the authority from
which it emanates. It has been defined as the fundamental and paramount law of the...
nation. It prescribes the permanent framework of a system of government, assigns to the
different departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other words is
that it is... a supreme law to which all other laws must conform and in accordance with
which all private rights must be determined and all public authority administered. Under the
doctrine of constitutional supremacy, if a law or contract violates any norm of the
constitution that law or... contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without
any force and effect. Thus, since the Constitution is the fundamental, paramount and
supreme law of the nation,... it is deemed written in every statute and contract
Political law... our Constitution requires that the President himself be the signatory of
service agreements with foreign-owned corporations involving the exploration,
development, and utilization of our minerals, petroleum, and other mineral oils. This... power
cannot be taken lightly.
CASE: Resident Marine Mammals of the Protected Seascape Tañon Strait v. Secretary
Angelo Reyes in his capacity as Secretary of the Department of Energy, et.al. (G.R. No.
180771 and 181527)
DATE: 21 April 2015
PONENTE: J. Leonardo-De Castro

FACTS

 On 13 June 2002, the Government of the Philippines, acting through the Department of
Energy (DOE) entered into a Geophysical Survey and Exploration Contract-102 (GSEC-
102) with Japan Petroleum Exploration Co., Ltd. (JAPEX).
 The studies included surface geology, sample analysis, and reprocessing of seismic and
magnetic data. Geophysical and satellite surveys as well as oil and gas sampling in Tañon
Strait was conducted.
 On 12 December 2004, DOE and JAPEX converted GSEC-102 to Service Contract No.
46 (SC-46) for the exploration, development, and production of petroleum resources in a
block covering approximately 2,850 sqm. offshore the Tañon Strait.
 From 9-18 May 2005, JAPEX conducted seismic surveys in and around Tañon Strait,
including a multi-channel sub-bottom profiling covering approximately 751 kms. to
determine the area’s underwater composition.
 During the 2nd sub-phase of the project, JAPEX committed to drill one exploration well.
Since the same was to be drilled in the marine waters of Aloguisan and Pinamungajan
where the Tañon Strait was declared a protected seascape in 1988, JAPEX agreed to
comply with the Environmental Impact Assessment requirements under Presidential
Decree No. 1586 (PD 1586), entitled “Establishing an Environmental Impact Statement
System, Including Other Environmental Management Related Measures and For Other
Purposes.”
 On 31 January 2007, the Protected Area Management Board (PAMB) of the Tañon Strait
issued Resolution No. 2007-01 where it adopted the Initial Environmental Examination
commissioned by JAPEX, and favourably recommended the approval of the latter’s
application for an Environmental Compliance Certificate (ECC).
 On 6 March 2007, DENR-EMB Region VII granted an ECC to DOE and JAPEX for the
offshore oil and gas exploration project in Tañon Strait.
 From 16 November 2007 to 8 February 2008, JAPEX drilled an exploratory well with a
depth of 3,150 meters near Pinamungajan town.
 On 17 December 2007, two separate original petitions were filed commonly seeking that
the implementation of SC-46 be enjoined for violation of the 1987 Constitution.
 The petitioners in G.R. No. 180771 are the “Resident Marine Mammals” which inhibit
the waters in and around the Tañon Strait, joined by “Stewards” Gloria Estenzo Ramos
and Rose-Liza Eisma-Osorio as their legal guardians and friends seeking their protection.
Also impleaded as unwilling co-petitioner is former President Gloria Macapagal-Arroyo.
In G.R. No. 181527, the petitioners are the Central Visayas Fisherfolk Development
Center (FIDEC), a non-stock, non-profit, non-governmental organization established for
the welfare of the marginal fisherfolk in Region VII and representatives of the
subsistence fisherfolk of the municipalities of Aloguinsan and Pinamungajan, Cebu.
Their contentions are:
 - A study made after the seismic survey showed that there is a drastic reduce in fish
catch by 50-70% attributable to the destruction of the “payao” or the artificial
reef.
- The ECC obtained by the respondents is invalid because there is no public
consultations and discussions prior to its issuance.
- SC-46 is null and void for having violated Section 2, Article XII of the 1987
Constitution, considering that there is no general law prescribing the standard or
uniform terms, conditions, and requirements for service contracts involving oil
exploration and extraction
- FIDEC alleges that it was barred from entering and fishing within a 7-kilometer
radius from the point where the oilrig was located, an area grated than the 1.5-
kilometer radius exclusion zone stated in the Initial Environmental Examination
 The respondents in both petitions are: the late Angelo T. Reyes, DOE Secretary; Jose L.
Atienza, DENR Secretary; Leonardo Sibbaluca, DENR-Region VII Director and
Chairman of Tañon Strait PAMB; JAPEX, a Japanese company; and Supply Oilfield
Services, Inc. (SOS) as the alleged Philippine agent of JAPEX. Their counter-allegations
are:
- The “Resident Marine Mammals” and “Stewards” have no legal standing to file
the petition.
- SC-46 is constitutional.
- The ECC was legally issued.
- The case is moot and academic since SC-46 is mutually terminated on 21 June
2008.

ISSUES

1. WON the case is moot and academic

2. WON Petitioners have a legal standing
3. WON SC-46 is unconstitutional

RULING

1. No. The Court makes clear that the “moot and academic” principle is not a magic formula
that can automatically dissuade the courts in resolving a case. Despite the termination of
SC-46, the Court deems it necessary to resolve the consolidated petitions as it falls within
the exceptions. Both petitioners allege that SC-46 is violative of the Constitution, the
environmental and livelihood issues raised undoubtedly affect the public’s interest, and
the respondents’ contested actions are capable of repetition.

2. Yes. In our jurisdiction, locus standi in environmental cases has been given a more
liberalized approach. The Rules of Procedure for Environmental Cases allow for a
“citizen suit,” and permit any Filipino citizen to file an action before our courts for
violation of our environmental laws on the principle that humans are stewards of nature:

“Section 5. Citizen suit. – Any Filipino citizen in representation of

others, including minors or generations yet unborn, may file an action
 to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall contain a
brief description of the cause of action and the reliefs prayed for, requiring
all interested parties to manifest their interest to intervene in the case
within fifteen (15) days from notice thereof. The plaintiff may publish the
order once in a newspaper of general circulation in the Philippines or
furnish all affected baragngays copies of said order.

Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be
governed by their respective provisions. (Emphasis supplied)”

Although the petition was filed in 2007, years before the effectivity of the Rules
of Procedure for Environmental Cases, it has been consistently held that rules of
procedure may be retroactively applied to actions pending and undetermined at the time
of their passage and will not violate any right of a person who may feel that he is
adversely affected, inasmuch as there is no vested rights in rules of procedure.

Moreover, even before the Rules of Procedure for Environmental Cases became
effective, the SC had already taken a permissive position on the issue of locus standi in
environmental cases. In Oposa, the SC allowed the suit to be brought in the name of
generations yet unborn “based on the concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is concerned.”

It is also worth noting that the Stewards in the present case are joined as real
parties in the Petition and not just in representation of the named cetacean species.

3. Yes. Section 2, Article XII of the 1987 Constitution provides in part:

“The President may enter into agreement with foreign-owned

corporations involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and
conditions provided by law, based on real contributions to the
economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local
scientific and technical resources.

The President shall notify the Congress of every contract entered into
in accordance with this provision, within thirty days from its
execution.” (Emphases supplied)

The disposition, exploration, development, exploitation, and utilization of

indigenous petroleum in the Philippines are governed by Presidential Decree No. 87 (PD
87) or the Oil Exploration and Development Act of 1972. Although the Court finds that
PD 87 is sufficient to satisfy the requirement of a general law, the absence of the two
 other conditions, that the President be a signatory to SC-46, and that the Congress be
notified of such contract, renders it null and void.

SC-46 appears to have been entered into and signed by the DOE through its then
Secretary Vicente S. Perez, Jr. Moreover, public respondents have neither shown nor
alleged that Congress was subsequently notified of the execution of such contract.

Service contracts involving the exploitation, development, and utilization of our

natural resources are of paramount interest to the present and future generations. Hence,
safeguards were out in place to insure that the guidelines set by law are meticulously
observed and likewise eradicate the corruption that may easily penetrate departments and
agencies by ensuring that the President has authorized or approved of the service
contracts herself.

Even under the provisions of PD 87, it is required that the Petroleum Board, now
the DOE, obtain the President’s approval for the execution of any contract under said
statute.

The SC likewise ruled on the legality of SC-46 vis-à-vis other pertinent laws to
serve as a guide for the Government when executing service contracts.

Under Proclamation No. 2146, the Tañon Strait is an environmentally critical

area, having been declared as a protected area in 1998; therefore, any activity outside the
scope of its management plan may only be implemented pursuant to an ECC secured
after undergoing an Environment Impact Assessment (EIA) to determine the effects of
such activity on its ecological system.

Public respondents admitted that JAPEX only started to secure an ECC prior to
nd
the 2 sub-phase of SC-46, which required the drilling of the exploration well. This
means that no environmental impact evaluation was done when the seismic surveys were
conducted. Unless the seismic surveys are part of the management plan of the Tañon
Strait, such surveys were done in violation of Section 12 of NIPAS Act and Section 4 of
Presidential Decree No. 1586.

While PD 87 may serve as the general law upon which a service contract for
petroleum exploration and extraction may be authorized, the exploitation and utilization
of this energy resource in the present case may be allowed only through a law passed by
Congress, since the Tañon Strait is a NIPAS area. Since there is no such law specifically
allowing oil exploration and/or extraction in the Tañon Strait, no energy resource
exploitation and utilization may be done in said protected seascape.

G.R. No. 180771               April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g.,

TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in
and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-
Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible
Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional
Director-Region VII and in his capacity as Chairperson of the Tañon Strait Protected
Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES
M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.

x-----------------------x

G.R. No. 181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,

RAMON YANONG, FRANCISCO LABID, in their personal capacity and as representatives of
the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND
PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE
GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and
Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional
Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape Management
Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental Management Bureau-
Region VII, DOE Regional Director for Region VIII  ANTONIO LABIOS, JAPAN PETROLEUM
1

EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC., Respondents.

CONCURRING OPINION

"Until one has loved an animal,

a part of one 's soul remains unawakened."

Anatole France

LEONEN, J.:

I concur in the result, with the following additional reasons.

In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit or be injured from the judgment on the issues.
The human petitioners implead themselves in a representative capacity "as legal guardians of the
lesser life-forms and as responsible stewards of God's Creations."  They use Oposa v. Factoran,
1

Jr.  as basis for their claim, asserting their right to enforce international and domestic environmental
2

laws enacted for their benefit under the concept of stipulation pour autrui.  As the representatives of
3

Resident Marine Mammals, the human petitioners assert that they have the obligation to build
awareness among the affected residents of Tañon Strait as well as to protect the environment,
especially in light of the government's failure, as primary steward, to do its duty under the doctrine of
public trust.
4

Resident Marine Mammals and the human petitioners also assert that through this case, this court
will have the opportunity to lower the threshold for locus standi as an exercise of "epistolary
jurisdiction." 5

The zeal of the human petitioners to pursue their desire to protect the environment and to continue
to define environmental rights in the context of actual cases is commendable. However, the space
for legal creativity usually required for advocacy of issues of the public interest is not so unlimited
that it should be allowed to undermine the other values protected by current substantive and
procedural laws. Even rules of procedure as currently formulated set the balance between
competing interests. We cannot abandon these rules when the necessity is not clearly and
convincingly presented.

The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for
animals through their allegation that they can speak for them. Obviously, we are asked to accept the
premises that (a) they were chosen by the Resident Marine Mammals of Tañon Strait; (b) they were
chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were
able to communicate with them; and (d) they received clear consent from their animal principals that
they would wish to use human legal institutions to pursue their interests. Alternatively, they ask us to
acknowledge through judicial notice that the interests that they, the human petitioners, assert are
identical to what the Resident Marine Mammals would assert had they been humans and the legal
strategies that they invoked are the strategies that they agree with.

In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.

Fundamental judicial doctrines that may significantly change substantive and procedural law cannot
be founded on feigned representation.

Instead, I agree that the human petitioners should only speak for themselves and already have legal
standing to sue with respect to the issue raised in their pleading. The rules on standing have already
been liberalized to take into consideration the difficulties in the assertion of environmental rights.
When standing becomes too liberal, this can be the occasion for abuse.

II

Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:

SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil action.

The Rules provide that parties may only be natural or juridical persons or entities that may be
authorized by statute to be parties in a civil action.

Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost.

Article 40 further defines natural persons in the following manner:

ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all
purposes that are favorable to it, provided it be born later with the conditions specified 'in the
following article.

Article 44, on the other hand, enumerates the concept of a juridical person:

ARTICLE 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by law;
their personality begins as soon as they have been constituted according to law;

(3) Corporations, partnerships and associations for private interest or purpose to which the
law grants a juridical personality, separate and distinct from that of each shareholder, partner
or member.

Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine
Mammals or animals. This we cannot do.

Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:

SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest. (2a)
6

A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.  When a case is brought to the courts, the real party in interest must show that another
7

party's act or omission has caused a direct injury, making his or her interest both material and based
on an enforceable legal right.8

Representatives as parties, on the other hand, are parties acting in representation of the real party in
interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:

SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A representative may be a trustee of
an express rust, a guardian, an executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or
be sued without joining the principal except when the contract involves things belonging to the
principal.(3a)
9
The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or
actually benefit or suffer from the judgment, but instead brings a case in favor of an identified real
party in interest.  The representative is an outsider to the cause of action. Second, the rule provides
10

a list of who may be considered as "representatives." It is not an exhaustive list, but the rule limits
the coverage only to those authorized by law or the Rules of Court. 11

These requirements should apply even in cases involving the environment, which means that for the
Petition of the human petitioners to prosper, they must show that (a) the Resident Marine Mammals
are real parties in interest; and (b) that the human petitioners are authorized by law or the Rules to
act in a representative capacity.

The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Tañon Strait."  While relatively new in Philippine jurisdiction, the issue of
12

whether animals have legal standing before courts has been the subject of academic discourse in
light of the emergence of animal and environmental rights.

In the United States, anim4l rights advocates have managed to establish a system which Hogan
explains as the "guardianship model for nonhuman animals": 13

Despite Animal Lovers, there exists a well-established system by which nonhuman animals may
obtain judicial review to enforce their statutory rights and protections: guardianships. With court
approval, animal advocacy organizations may bring suit on behalf of nonhuman animals in the same
way court-appointed guardians bring suit on behalf of mentally-challenged humans who possess an
enforceable right but lack the ability to enforce it themselves.

In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural
Objects, Christopher D. Stone asserts that the environment should possess the right to seek judicial
redress even though it is incapable of representing itself. While asserting the rights of

speechless entities such as the environment or nonhuman animals certainly poses legitimate
challenges - such as identifying the proper spokesman -the American legal system is already well-
equipped with a reliable mechanism by which nonhumans may obtain standing via a judicially
established guardianship. Stone notes that other speechless - and nonhuman - entities such as
corporations, states, estates, and municipalities have standing to bring suit on their own behalf.
There is little reason to fear abuses under this regime as procedures for removal and substitution,
avoiding conflicts of interest, and termination of a guardianship are well established.

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that AL VA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.

This Comment advocates a shift in contemporary standing doctrine to empower non-profit

organizations with an established history of dedication to the cause and relevant expertise to serve
as official guardians ad !item on behalf of nonhuman animals interests. The American legal system
has numerous mechanisms for representing the rights and interests of nonhumans; any challenges
inherent in extending these pre-existing mechanisms to nonhuman animals are minimal compared to
an interest in the proper administration of justice. To adequately protect the statutory rights of
nonhuman animals, the legal system must recognize those statutory rights independent of humans
and provide a viable means of enforcement. Moreover, the idea of a guardianship for speechless
plaintiffs is not new and has been urged on behalf of the natural environment. 'Such a model is even
more compelling as applied to nonhuman animals, because they are sentient beings with the ability
to feel pain and exercise rational thought. Thus, animals are qualitatively different from other legally
protected nonhumans and therefore have interests deserving direct legal protection.

Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the
integrity of the federal statutes designed to protect them, essentially rendering them meaningless.
Sensing that laws protecting nonhuman animals would be difficult to enforce, Congress provided for
citizen suit provisions: the most well-known example is found in the Endangered Species Act (ESA).
Such provisions are evidence of legislative intent to encourage civic participation on behalf of
nonhuman animals. Our law of standing should reflect this intent and its implication that humans are
suitable representatives of the natural environment, which includes nonhuman animals.  (Emphasis
14

supplied, citation omitted)

When a court allows guardianship as a basis of representation, animals are considered as similarly
situated as individuals who have enforceable rights but, for a legitimate reason (e.g., cognitive
disability), are unable to bring suit for themselves. They are also similar to entities that by their very
nature are incapable of speaking for themselves (e.g., corporations, states, and others).

In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having
standing to sue and, therefore, may be properly represented as real parties in interest. The same
cannot be said about animals.

Animals play an important role in households, communities, and the environment. While we, as
humans, may feel the need to nurture and protect them, we cannot go as far as saying we represent
their best interests and can, therefore, speak for them before the courts. As humans, we cannot be
so arrogant as to argue that we know the suffering of animals and that we know what remedy they
need in the face of an injury.

Even in Hogan's discussion, she points out that in a case before the United States District Court for
the Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,  the court held that
15

an emotional response to what humans perceive to be an injury inflicted on an animal is not within
the "zone-of-interest" protected by law.  Such sympathy cannot stand independent of or as a
16

substitute for an actual injury suffered by the claimant.  The ability to represent animals was further
17

limited in that case by the need to prove "genuine dedication" to asserting and protecting animal
rights:

What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing
doctrine further required ALVA to differentiate its genuine dedication to the humane treatment of
animals from the general disdain for animal cruelty shared by the public at large. In doing so, the
court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA to the
ranks of the "concerned bystander. "

....

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that ALVA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.  (Emphasis supplied, citation omitted)
18

What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for Environmental
Cases. A citizen suit allows any Filipino to act as a representative of a party who has enforceable
rights under environmental laws before Philippine courts, and is defined in Section 5: .

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations
yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order
once in a newspaper of a general circulation in the Philippines or furnish all affected barangays
copies of said order.

There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let alone
present that they would wish to use our court system, which is designed to ensure that humans
seriously carry their responsibility including ensuring a viable ecology for themselves, which of
course includes compassion for all living things.

Our rules on standing are sufficient and need not be further relaxed.

In Arigo v. Swift,  I posed the possibility of further reviewing the broad interpretation we have given
19

to the rule on standing. While representatives are not required to establish direct injury on their part,
they should only be allowed to represent after complying with the following: [I]t is imperative for them
to indicate with certainty the injured parties on whose behalf they bring the suit. Furthermore, the
interest of those they represent must be based upon concrete legal rights. It is not sufficient to draw
out a perceived interest from a general, nebulous idea of a potential "injury." 20

I reiterate my position in Arigo v. Swift and in Paje v. Casiño  regarding this rule alongside the
21

appreciation of legal standing in Oposa v. Factoran  for environmental cases. In Arigo, I opined that
22

procedural liberality, especially in cases brought by representatives, should be used with great
caution:

Perhaps it is time to revisit the ruling in Oposa v. Factoran.

That case was significant in that, at that time, there was need to call attention to environmental
concerns in light of emerging international legal principles. While "intergenerational responsibility" is
a noble principle, it should not be used to obtain judgments that would preclude future generations
from making their own assessment based on their actual concerns. The present generation must
restrain itself from assuming that it can speak best for those who will exist at a different time, under a
different set of circumstances. In essence, the unbridled resort to representative suit will inevitably
result in preventing future generations from protecting their own rights and pursuing their own
interests and decisions. It reduces the autonomy of our children and our children 's children. Even
before they are born, we again restricted their ability to make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be
allowed only when a) there is a clear legal basis for the representative suit; b) there are actual
concerns based squarely upon an existing legal right; c) there is no possibility of any countervailing
interests existing within the population represented or those that are yet to be born; and d) there is
an absolute necessity for such standing because there is a threat of catastrophe so imminent that an
immediate protective measure is necessary. Better still, in the light of its costs and risks, we
abandon the precedent all together.  (Emphasis in the original)
23

Similarly, in Paje:

A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or
she who invokes the court's jurisdiction must be the "owner of the right sought to be enforced." In
other words, he or she must have a cause of action. An action may be dismissed on the ground of
lack of cause of action if the person who instituted it is not the real party in interest.  The term
24

"interest" under the Rules of Court must refer to a material interest that is not merely a curiosity
about or an "interest in the question involved." The interest must be present and substantial. It is not
a mere expectancy or a future, contingent interest.

A person who is not a real party in interest may institute an action if he or she is suing as
representative of a .real party in interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become the real party in interest. The person
represented is deemed the real party in interest. The representative remains to be a third party to the
action instituted on behalf of another.

....

To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and (b) the
representative authorized by law or the Rules of Court to represent the victim."

The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit under
this rule allows any Filipino citizen to file an action for the enforcement of environmental law on
behalf of minors or generations yet unborn. It is essentially a representative suit that allows persons
who are not real parties in interest to institute actions on behalf of the real party in interest.

The expansion of what constitutes "real party in interest" to include minors and generations yet
unborn is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the capacity
of minors (represented by their parents) to file a class suit on behalf of succeeding generations
based on the concept of intergenerational responsibility to ensure the future generation's access to
and enjoyment of [the] country's natural resources.

To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:

First, they run the risk of foreclosing arguments of others who are unable to take part in the suit,
putting into. question its representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of which do not fall upon this court.
Third, automatically allowing a class or citizen's suit on behalf of minors and generations yet unborn
may result in the oversimplification of what may be a complex issue, especially in light of the
impossibility of determining future generation's true interests on the matter.

In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will decide based on
their evidence and arguments. Any decision by the court will be binding upon the beneficiaries,
which in this case are the minors and the future generations. The court's decision will be res judicata
upon them and conclusive upon the issues presented. 25

The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its
potential to diminish the value of legitimate environmental rights. Extending the application of "real
party in interest" to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere concern rather than an
actual enforcement of a right. It is impossible for animals to tell humans what their concerns are. At
best, humans can only surmise the extent of injury inflicted, if there be any. Petitions invoking a right
and seeking legal redress before this court cannot be a product of guesswork, and representatives
have the responsibility to ensure that they bring "reasonably cogent, rational, scientific, well-founded
arguments"  on behalf of those they represent.
26

Creative approaches to fundamental problems should be welcome. However, they should be

considered carefully so that no unintended or unwarranted consequences should follow. I concur
with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as it
carefully narrows down the doctrine in terms of standing. Resident Marine Mammals and the human
petitioners have no legal standing to file any kind of petition.

However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk
Development Center,. Engarcial, Yanong, and Labid, have standing both as real parties in interest
and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos whose
rights are similarly affected. The activities undertaken under Service Contract 46 (SC-46) directly
affected their source of livelihood, primarily felt through the significant reduction of their fish
harvest.  The actual, direct, and material damage they suffered, which has potential long-term
27

effects transcending generations, is a proper subject of a legal suit.

III

In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners,
most especially when the implied petitioner was a sitting President of the Republic of the Philippines.
In G.R. No. 180771, apart from adjudicating unto themselves the status of "legal guardians" of
whales, dolphins, porpoises, and other cetacean species, human petitioners also impleaded Former
President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and
undertaking in the ASEAN Charter to protect Tañon Strait." 28

No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent.
In our jurisdiction, only when there is a party that should have been a necessary party but was
unwilling to join would there be an allegation as to why that party has been omitted. In Rule 3,
Section 9 of the 1997 Rules of Civil Procedure:

SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim
is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such necessary party. 29

A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should
be impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the
1997 Rules of Civil Procedure:

SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not
be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. 30

The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but
who do not consent should be put within the jurisdiction of the court through summons or other court
processes. Petitioners. should not take it upon themselves to simply imp lead any party who does
not consent as a petitioner. This places the unwilling co-petitioner at the risk of being denied due
process.

Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions
by suing his or her alter-egos. The procedural situation caused by petitioners may have gained
public attention, but its legal absurdity borders on the contemptuous. The Former President's name
should be stricken out of the title of this case.

IV

I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.

SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected
Areas System Act of 1992, and Presidential Decree No. 1234,  which declared Tañon Strait as a
31

protected seascape. It is unconstitutional because it violates the fourth paragraph of Article XII,
Section 2 of the Constitution.

Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII,
Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd.
(JAPEX) is 100% Japanese-owned.  It further asserts that SC-46 cannot be validly classified as a
32

technical and financial assistance agreement executed under Article XII, Section 2, paragraph 4 of
the 1987 Constitution.  Public respondents counter that SC-46 does not fall under the coverage of
33

paragraph 1, but is a validly executed contract under paragraph 4. · Public respondents further aver
34

that SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central Visayas Fisherfolk
Development Center's right to preferential use of communal marine and fishing resources. 35

VI

Article XII, Section 2 of the 1987 Constitution states:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception. of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers,
lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.

The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphasis supplied)

I agree that fully foreign-owned corporations may participate in the exploration, development, and
use of natural resources, but only through either financial agreements or technical ones. This is the
clear import of the words "either financial or technical assistance agreements." This is also

the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and
1935 Constitution:

1973 CONSTITUTION

ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION

SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
association at least sixty per centum of the capital of which is owned by such citizens. The Batasang
Pambansa, in the national interest, may allow such citizens, corporations, or associations to enter
into service contracts for financial, technical, management, or other forms of assistance with any
foreign person or entity for the exploitation, development, exploitation, or utilization of any of the
natural resources. Existing valid and binding service contracts for financial, the technical,
management, or other forms of assistance are hereby recognized as such. (Emphasis supplied)

1935 CONSTITUTION
 ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES

SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of
the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, in which cases beneficial use may be the measure and the
limit of the grant.

The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation
from the Constitutional Commission deliberations. The constitutional texts are the product of a full
sovereign act: deliberations in a constituent assembly and ratification. Reliance on recorded
discussion of Constitutional Commissions, on the other hand, may result in dependence on
incomplete authorship; Besides, it opens judicial review to further subjectivity from those who spoke
during the Constitutional Commission deliberations who may not have predicted how their words will
be used. It is safer that we use the words already in the Constitution. The Constitution was their
product. Its words were read by those who ratified it. The Constitution is what society relies upon
even at present.

SC-46 is neither a financial assistance nor a technical assistance agreement.

Even supposing for the sake of argument that it is, it could not be declared valid in light of the
standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos: 36

Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:

(1) The service contract shall be crafted m accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.

(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose
timely objections, if any.  (Emphasis in the original, citation omitted)
37

Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three
important points: (a) whether SC-46 was crafted in accordance with a general law that provides
standards, terms, and conditions; (b) whether SC-46 was signed by the President for and on behalf
of the government; and (c) whether it was reported by the President to Congress within 30 days of
execution.

VII

The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or
the Oil Exploration and Development Act of 1972.  It is my opinion that this law is unconstitutional in
1âwphi1

that it allows service contracts, contrary to Article XII, Section 2 of the 1987 Constitution:

The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources. (Emphasis supplied)

The deletion of service contracts from the enumeration of the kind of agreements the President may
enter into with foreign-owned corporations for exploration and utilization of resources means that
service contracts are no longer allowed by the Constitution. Pursuant to Article XVIII, Section 3 of
the 1987 Constitution,  this inconsistency renders the law invalid and ineffective.
38

SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an
important point, which is that SC-46 did not merely involve exploratory activities, but also provided
the rights and obligations of the parties should it be discovered that there is oil in commercial
quantities in the area. The Tañon Strait being a protected seascape under Presidential Decree No.
1234  requires that the exploitation and utilization of energy resources from that area are explicitly
39

covered by a law passed by Congress specifically for that purpose, pursuant to Section 14 of
Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992:

SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIP AS areas shall be allowed only through a law passed
by Congress.  (Emphasis supplied)
40

No law was passed by Congress specifically providing the standards, terms, and conditions of an oil
exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities could
have been validly undertaken under SC-46. The National Integrated Protected Areas System Act of
1992 is clear that exploitation and utilization of energy resources in a protected seascape such as
Tañon Strait shall only be allowed through a specific law.

VIII

Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the
requirement set by paragraph 4 of Article XII, Section 2 for service contracts involving the
exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary Vicente
S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases where the
Constitution or law requires the President to act personally on the matter, the duty cannot be
delegated to another public official.  La Bugal highlights the importance of the President's
41
involvement, being one of the constitutional safeguards against abuse and corruption, as not mere
formality:

At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:

• In their deliberations on what was to become paragraph 4, the framers used the term
service contracts in referring to agreements x x x involving either technical or financial
assistance. • They spoke of service contracts as the concept was understood in the 1973
Constitution.

• It was obvious from their discussions that they were not about to ban or eradicate service
contracts.

• Instead, they were plainly crafting provisions to. put in place safeguards that would
eliminate or m minimize the abuses prevalent during the marital law regime.  (Emphasis in
42

the original)

Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in
the signing or execution of SC-46. The failure to comply with this constitutional requirement renders
SC-46 null and void.

IX

Public respondents also failed to show that Congress was subsequently informed of the execution
and existence of SC-46. The reporting requirement is an equally important requisite to the validity of
any service contract involving the exploration, development, and utilization of Philippine petroleum.
Public respondents' failure to report to Congress about SC-46 effectively took away any opportunity
for the legislative branch to scrutinize its terms and conditions.

In sum, SC-46 was executed and implemented absent all the requirements provided under
paragraph 4 of Article XII, Section 2. It is, therefore, null and void.

I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null
and void for being violative of environmental laws protecting Tañon Strait. In particular, SC-46 was
implemented despite falling short of the requirements of the National Integrated Protected Areas
System Act of 1992.

As a protected seascape under Presidential Decree No. 1234,  Tañon Strait is covered by the
43

National Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:

SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as well as plant and animal life,
it is hereby declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the classification of national park as
provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our natural heritage; that
effective administration of these areas is possible only through cooperation among national
government, local and concerned private organizations; that the use and enjoyment of these
protected areas must be consistent with the principles of biological diversity and sustainable
development.

To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstanding remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected
areas."  (Emphasis supplied)
44

Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental Impact
Assessment:

SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope
of the management plan for protected areas shall be subject to an environmental impact assessment
as required by law before they are adopted, and the results thereof shall be taken into consideration
in the decision-making process.  (Emphasis supplied)
45

The same provision further requires that an Environmental Compliance Certificate be secured under
the Philippine Environmental Impact Assessment System before arty project is implemented:

No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and take preventive and remedial
action when appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.  (Emphasis supplied)
46

In projects involving the exploration or utilization of energy resources, the National Integrated
Protected Areas System Act of 1992 additionally requires that a program be approved by the
Department of Environment and Natural Resources, which shall be publicly accessible. The program
shall also be submitted to the President, who in turn will recommend the program to Congress.
Furthermore, Congress must enact a law specifically allowing the exploitation of energy resources
found within a protected area such as Tañon Strait:

SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be allowed only through a taw passed
by Congress.  (Emphasis supplied)
47

Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.  At any rate, they assert that the activities covered by SC-46
48
fell under Section 14 of the National Integrated Protected Areas System Act of 1992, which they
interpret to be an exception to Section 12. They argue that the Environmental Compliance Certificate
is not a strict requirement for the validity of SC-46 since (a) the Tañon Strait is not a nature' reserve
or natural park; (b) the exploration was merely for gathering information; and ( c) measures were in
place to ensure that the exploration caused the least possible damage to the area. 49

Section 14 is not an exception to Section 12, but instead provides additional requirements for cases
involving Philippine energy resources. The National Integrated Protected Areas System Act of 1992
was enacted to recognize the importance of protecting the environment in light of resource
exploitation, among others.  Systems are put in place to secure for Filipinos local resources under
50

the most favorable conditions. With the status of Tañon Strait as a protected seascape, the
institution of additional legal safeguards is even more significant.

Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based
on the records, JAPEX commissioned an environmental impact evaluation only in the second
subphase of its project, with the Environmental Management .Bureau of Region

VII granting the project an Environmental Compliance Certificate on March 6, 2007. 51

Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any
environmental assessment contrary to Section 12 of the National Integrated Protected Areas System
Act of 1992.

XI

Finally, we honor every living creature when we take care of our environment. As sentient species,
we do not lack in the wisdom or sensitivity to realize that we only borrow the resources that we use
to survive and to thrive. We are not incapable of mitigating the greed that is slowly causing the
demise of our planet. Thus, there is no need for us to feign representation of any other species or
some imagined unborn generation in filing any action in our courts of law to claim any of our
fundamental rights to a healthful ecology. In this way and with candor and courage, we fully shoulder
the responsibility deserving of the grace and power endowed on our species.

ACCORDINGLY, I vote:

(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former
President Gloria Macapagal-Arroyo from the title of this case;

(b) to GRANT G.R. No. 181527; and

(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1234.

MARVIC M.V.F. LEONEN

Associate Justice
Spouses Democrito and Olicia Lago v. Judge Godofredo B. Abul, Jr.

A.M. No. RTJ-10-2255 (Formerly OCA I.P.I. No. 10-3335-RTJ), February 8, 2012

Mendoza, J.

FACTS:

Respondent is the Presiding Judge of Regional Trial Court, Branch 4 in Butuan City, who was charged with gross
ignorance of the law for the following: (1) assuming jurisdiction over a case without the mandated raffle and
notification and service of summons to the adverse party and issuing a temporary restraining order (TRO); (2) setting
the case for summary hearing beyond the 72-hour required by the law in order to determine whether the TRO could
be extended; and (3) issuing a writ of preliminary injunction without prior notice to the complainants and without
hearing. Respondent filed for a motion for reconsideration of the Court’s Decision finding him guilty and imposing
upon him a fine.

First, Judge Abul stresses that contrary to the allegations of the complainants, the Clerk of Court conducted a raffle of
the case in question, as evidenced by the letter by the Clerk of Court in the RTC of Misamis Oriental. He explained
that he issued the 72-hour TRO pursuant to the 2nd paragraph of Section 5, Rule 58 of the Rules in order to avoid
injustice and irreparable damage on the part of the plaintiff.

Second, Judge Abul admits not conducting a summary hearing before the expiration of the 72 hours from the
issuance of the ex parte TRO to determine whether it could be extended. He explained, however, that the holding of
the summary hearing within 72 hours from the issuance of the TRO was not possible because the law office of the
plaintiff’s counsel was 144 kilometers away from Gingoog City and under that situation, the service of the notice could
only be made on the following day. Hence, it would have been impractical to set the hearing on the same date when
they would receive the service of summons.

Finally, as to the third charge, Judge Abul belies the same by submitting a certified true copy of the Sheriff’s Return of
Service stating that he actually served the summons on the complainants together with the copy of the 72-hour TRO;
and a certified machine copy of the summons bearing the signature of complainant Democrito that he personally
received the same.

ISSUE:

Is respondent guilty of gross ignorance of the law?

HELD:

NO. With respect to the issues regarding the raffle, the lack of notice and hearing prior to the issuance of the writ of
preliminary injunction, the Court is satisfied with the explanation of Judge Abul as it is substantiated by the official
records on file.

As to the issue on the delay in conducting the summary hearing for purposes of extending the 72-hour TRO, the
Court finds the reasons advanced by Judge Abul to be well-taken. Though the Rules require the presiding judge to
conduct a summary hearing before the expiration of the 72 hours, it could not, however, be complied with because of
the remoteness and inaccessibility of the trial court from the parties’ addresses. The trial court cannot proceed with
the summary hearing without giving all parties the opportunity to be heard.
It is a settled doctrine that not every error or mistake that a judge commits in the performance of his duties renders
him liable, unless he is shown to have acted in bad faith or with deliberate intent to do an injustice. In this case,
complainants failed to show that Judge Abul was motivated by bad faith, ill will or malicious motive when he granted
the TRO and preliminary injunction. Complainants did not adduce any proof to show that impropriety and bias
attended the actions of the respondent judge.

A.M. No. RTJ-10-2255               January 17, 2011

(Formerly OCA IPI No. 10-3335-RTJ)

SPOUSES DEMOCRITO AND OLIVIA LAGO, Complainants,

vs.
JUDGE GODOFREDO B. ABUL, JR., REGIONAL TRIAL COURT, BRANCH 43, GINGOOG
CITY, Respondent.

DECISION

NACHURA, J.:

The case arose from an amended complaint1 dated December 29, 2009, filed by Spouses Democrito
C. Lago and Olivia R. Lago (complainants), charging Judge Godofredo B. Abul, Jr. (respondent
judge) of the Regional Trial Court (RTC), Branch 43, Gingoog City, with acts and omissions violative
of the Standards of Conduct Prescribed for Judges by Law, the Rules of Court, and the Code of
Judicial Conduct.

Complainants were the defendants in a civil action for Preliminary Injunction, Easement of Road
Right of Way, and Attorney’s Fees, with prayer for a Temporary Restraining Order (TRO), filed on
July 2, 2009 by Christina M. Obico (Obico) before the RTC, Gingoog City, Misamis Oriental, and
docketed as Civil Case No. 2009-905. The action was spawned by the alleged threats of
complainants to close the access road leading to Obico’s property, where the latter’s milkfish
(bangus) farm is located. Obico claimed that, if the access road leading to her property was closed,
she would be prevented from harvesting her milkfish, causing massive fish kills, and leading to
heavy financial losses on her part.

Complainants assert that the civil complaint was never raffled, and that no notice of raffle was ever
served upon them, yet the case went directly to Branch 43, where respondent judge is the acting
presiding judge. He is also the acting executive judge of RTC, Gingoog City. Complainants claim
that this is violative of Section 4(c), Rule 58 of the Rules of Court.

On July 7, 2009, respondent judge issued an Order2 directing the issuance of a TRO "effective
seventy two (72) hours from date of issue," without requiring Obico to put up a bond. Complainants
allege that at that time, they were not yet in receipt of the summons and copy of the complaint, as
well as Obico’s affidavit and bond. Complainants claim that this is violative of Section 4(c) and (d) of
Rule 58 of the Rules of Court.

On July 14, 2009, respondent judge issued an Order 3 extending the 72-hour TRO, which had already
expired, "for another period provided that the total period should not exceed twenty days." Again,
respondent judge failed to require Obico to put up a bond even as complainants assert that it is
already of judicial notice that a TRO under the amended new rules has been elevated to the level of
an injunction.
In his Resolution4 dated August 11, 2009, respondent judge ordered, among others, the issuance of
the writ of preliminary injunction conditioned upon the application of a bond by Obico in the amount
of ₱100,000.00. Complainants argue, however, that said directive was violative of Section 5, Rule 58
of the Rules of Court since they were not required "to show cause, at a specific time and place, why
the injunction should not be granted."

Due to these acts of respondent judge, complainants filed a motion for inhibition 5 from further
hearing the case, since they perceive that respondent judge was bereft of the cold neutrality of an
impartial judge. The motion was denied by respondent judge in his Resolution 6 dated October 28,
2009. Complainants thus consider respondent judge’s non-inhibition as violative of the Code of
Judicial Conduct, as it denied them due process and equal protection of the law.

On November 11, 2009, respondent judge issued an Order 7 upon Obico’s motion, directing the
reduction of the bond from ₱100,000.00 to ₱50,000.00.

Complainants then filed a Motion to Hold in Abeyance Further Proceedings 8 on the ground of the
pendency of their appeal before the Supreme Court of the Order denying the motion for inhibition.
However, at the December 15, 2009 setting for pre-trial of the civil case, respondent judge issued an
Order9 denying the motion to hold in abeyance further proceedings. Respondent judge also allowed
Obico to present evidence ex parte on January 26, 2010 for failure of complainants to appear during
the pre-trial.10

In his Comment11 dated February 11, 2010, respondent judge clarifies that, as of the time of the filing
of the civil complaint, Branches 27 and 43 of the RTC, Gingoog City, had no regular presiding
judges. Branch 27 was temporarily presided over by Judge Rustico Paderanga, the regular presiding
judge of RTC, Camiguin Province, while Branch 43 was presided over by respondent judge, who is
the regular judge of RTC, Branch 4, Butuan City.

Respondent judge claims that he had faithfully observed the provisions of Rule 58 of the Rules of
Court, with respect to Civil Case No. 2009-905. He explains that, as the acting executive judge of
RTC, Gingoog City, he took cognizance of the civil case, convinced that it had to be acted upon
immediately. Thus, the issuance of the 72-hour TRO on July 7, 2009 was by virtue of his sound
discretion based on the civil complaint and its annexes.

Respondent judge said that he explained in his July 14, 2009 Order that he extended the 72-hour
TRO to 20 days in this wise—

Considering that the TRO previously granted was only for seventy-two hours, the same can be
extended for another period provided that the total period should not exceed twenty days. In order to
prevent plaintiff from incurring serious damage and heavy financial losses on her part, this court is
inclined to grant the extension of the Temporary Restraining Order for another period not exceeding
twenty (20) days inclusive of the seventy two (72) hour period already granted previously by this
court.12

With respect to the July 14, 2009 hearing for the TRO, respondent judge claims that it was justified
since he, as a mere acting presiding (and executive) judge of RTC, Gingoog City, conducts hearings
in that sala only on Tuesdays and Wednesdays because he has to travel about 144 kilometers from
Butuan City, where he is actually stationed. In the same July 14, 2009 Order, respondent judge
asserts that the conduct of the summary hearings on days other than Tuesdays and Wednesdays
would cause undue prejudice to the other cases already scheduled way ahead of the subject civil
action, thus, the sheer improbability of being accommodated.
Respondent judge asseverates that the writ of injunction was issued only after a serious
consideration of all the factual and legal circumstances of the case. On the other hand, he insists
that the denial of the motion for inhibition was due to its lack of factual and legal basis.

After due investigation of this administrative case, the Office of the Court Administrator (OCA) issued
its Report dated September 13, 2010, recommending that this case be re-docketed as a regular
administrative matter, and, based on its finding that respondent judge was grossly ignorant of the
law and rules of procedure, recommended that he be meted a fine in the amount of ₱25,000.00, with
a stern warning that a repetition of the same or any similar infraction shall be dealt with more
severely.

The OCA found respondent judge to have been grossly and deliberately ignorant of the law and
procedure for violation of Rule 58 of the Rules of Court, specifically by means of the following acts:
(1) when the civil complaint with prayer for the issuance of a TRO was filed on July 2, 2009,
respondent judge assumed jurisdiction thereon and, without the mandated raffle and notification and
service of summons to the adverse party, issued a 72-hour TRO on July 7, 2009; (2) when
respondent judge set the case for summary hearing on July 14, 2009, purportedly to determine
whether the TRO could be extended for another period, when the hearing should be set within 72
hours from the issuance of the TRO; (3) when he eventually granted an extension of an already
expired TRO to a full 20-day period; and (4) when he issued a writ of preliminary injunction in favor
of Obico without prior notice to herein complainants and without the required hearing.

We find the recommendations of the OCA to be well-taken.

Sections 4 and 5 of Rule 58 of the Rules of Court on preliminary injunction, pertinent to this case,
provide—

SEC. 4. Verified application and bond for preliminary injunction or temporary restraining order.—A
preliminary injunction or temporary restraining order may be granted only when:

(a) The application in the action or proceeding is verified, and shows facts entitling the
applicant to the relief demanded; and

(b) Unless exempted by the court, the applicant files with the court where the action or
proceeding is pending, a bond executed to the party or person enjoined, in an amount to be
fixed by the court, to the effect that the applicant will pay such party or person all damages
which he may sustain by reason of the injunction or temporary restraining order if the court
should finally decide that the applicant was not entitled thereto. Upon approval of the
requisite bond, a writ of preliminary injunction shall be issued.

(c) When an application for a writ of preliminary injunction or a temporary restraining order is
included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after notice to and in the presence of the adverse party or the person to
be enjoined. In any event, such notice shall be preceded, or contemporaneously
accompanied by service of summons, together with a copy of the complaint or initiatory
pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

However, where the summons could not be served personally or by substituted service
despite diligent efforts, or the adverse party is a resident of the Philippines temporarily
absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous
service of summons shall not apply.
 (d) The application for a temporary restraining order shall thereafter be acted upon only after
all parties are heard in a summary hearing which shall be conducted within twenty-four (24)
hours after the sheriff’s return of service and/or the records are received by the branch
selected by raffle and to which the records shall be transmitted immediately.

SEC. 5. Preliminary injunction not granted without notice; exception.—No preliminary injunction shall
be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall
appear from facts shown by affidavits or by the verified application that great or irreparable injury
would result to the applicant before the matter can be heard on notice, the court to which the
application for preliminary injunction was made, may issue ex parte a temporary restraining order to
be effective only for a period of twenty (20) days from service on the party or person sought to be
enjoined, except as herein provided. Within the twenty-day period, the court must order said party or
person to show cause, at a specified time and place, why the injunction should not be granted. The
court shall also determine, within the same period, whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding order.

However, subject to the provisions of the preceding sections, if the matter is of extreme urgency and
the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala
court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order
effective for only seventy-two (72) hours from issuance, but shall immediately comply with the
provisions of the next preceding section as to the service of summons and the documents to be
served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the
case is pending shall conduct a summary hearing to determine whether the temporary restraining
order shall be extended until the application for preliminary injunction can be heard. In no case shall
the total period of effectivity of the temporary restraining order exceed twenty (20) days, including
the original seventy-two hours provided herein.

In the event that the application for preliminary injunction is denied or not resolved within the said
period, the temporary restraining order is deemed automatically vacated. The effectivity of a
temporary restraining order is not extendible without need of any judicial declaration to that effect,
and no court shall have authority to extend or renew the same on the same ground for which it was
issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order
shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A
restraining order issued by the Supreme Court or a member thereof shall be effective until further
orders.

The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that issued a
writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall
decide the main case or petition within six (6) months from the issuance of the writ. 13

Culled from the foregoing provisions, particularly with respect to the second paragraph of Section 5,
Rule 58 of the Rules of Court, as amended, it is clear that, on the matter of the issuance of an ex
parte 72-hour TRO, an executive judge of a multiple-sala court (applicable to respondent judge), or
the presiding judge of a single-sala court, is empowered to issue the same in matters of extreme
emergency, in order to prevent grave injustice and irreparable injury to the applicant. However, it is
also an unequivocal provision that, after the issuance of the 72-hour TRO, the executive judge of a
multiple-sala court is bound to comply with Section 4(c) of the same rule with respect to the service
of summons and the documents to be served therewith.
The records of this case clearly show that respondent judge failed to cause the raffle of Civil Case
No. 2009-905, since RTC, Gingoog City, is a multiple-sala court, or to cause the notification and
service of summons to complainants after he issued the 72-hour TRO. Respondent judge’s July 7,
2009 Order was explicit when the civil case was set for summary hearing on July 14, 2009,
purportedly to determine whether or not the TRO issued could be extended for another period. Thus,
it is manifest that respondent judge had directly assumed jurisdiction over the civil action and all
together disregarded the mandatory requirements of Section 4(c), Rule 58, relative to the raffle in the
presence of the parties, and service of summons. This is gross error.

Even assuming that there was a valid raffle to RTC, Branch 43, Gingoog City, where respondent
judge acts as the presiding magistrate, the supposed extreme urgency of the issuance of the 72-
hour TRO was belied by his setting of the required summary hearing for the determination of the
necessity of extending the 72-hour TRO to 20 days, one week after the issuance thereof. Indeed,
Section 5, Rule 58 is explicit that such summary hearing must be conducted within the said 72-hour
period. Notwithstanding the explanation of respondent judge that he could not set the required
summary hearing except on Tuesdays and Wednesdays, it should be noted that July 7, 2009, the
date of the issuance of the 72-hour TRO, was a Tuesday, yet respondent judge could have set the
summary hearing on July 8, 2009, a Wednesday. He failed to do so on the mistaken notion that,
aside from his alleged hectic schedule, he could, at any time, extend the 72-hour TRO for another
period as long as the total period did not exceed 20 days.

What is more appalling is that respondent judge extended the 72-hour TRO, which had already and
obviously expired, into a full 20-day TRO. An already expired TRO can no longer be extended.
Respondent judge should have known that the TRO he issued in his capacity as an acting executive
judge was valid for only 72 hours. Beyond such time, the TRO automatically expires, unless, before
the expiration of the said period, he, supposedly in his capacity as presiding judge to whom the case
was raffled, conducted the required summary hearing in order to extend the TRO’s lifetime.
Indubitably, a 72-hour TRO, issued by an executive judge, is a separate and distinct TRO which can
stand on its own, regardless of whether it is eventually extended or not. It is not, as respondent
judge attempts to impress upon us, a mere part of the 20-day TRO issued by a presiding judge to
whom the case is raffled.

Moreover, respondent judge committed another blunder when he ordered the issuance of a writ of
preliminary injunction without the required hearing and without prior notice to the defendants, herein
complainants. The records plainly disclose that the only hearing conducted prior to the August 11,
2009 Resolution granting the preliminary injunction was the July 14, 2009 summary hearing for the
extension of the 72-hour TRO. This could be gathered from the August 11, 2009 Resolution, wherein
respondent judge declared—

During the hearing for the determination of the propriety (sic) the Temporary Restraining Order
should be extended or whether the Writ of Injunction be granted, the plaintiff presented Christina M.
Obico, who in essence testified that she operated fish cages at Gingoog Bay. x x x. 14

Again, Rule 58, as amended, mandates a full and comprehensive hearing for the determination of
the propriety of the issuance of a writ of preliminary injunction, separate from the summary hearing
for the extension of the 72-hour TRO. The preliminary injunction prayed for by the applicant can only
be heard after the trial court has ordered the issuance of the usual 20-day TRO. Within that period of
20 days, the court shall order the party sought to be enjoined to show cause at a specified time and
place why the injunction should not be granted. During that same period, the court shall also
determine the propriety of granting the preliminary injunction and then issue the corresponding order
to that effect. In the case of respondent judge, he gravely failed to comply with what the rule
requires, i.e., to give complainants the opportunity to comment or object, through a full-blown
hearing, to the writ of injunction prayed for. Instead, respondent judge railroaded the entire process
by treating the summary hearing for the extension of the TRO as the very same hearing required for
the issuance of the writ of preliminary injunction.
1avvphi1

Verily, the absence of the hearing required by the Rules of Court is downright reprehensible and,
thus, should not be countenanced. The requirement of a hearing is so fundamental that failure to
comply with it not only amounts to gross ignorance of rules and procedure, but also to an outright
denial of due process to the party denied such a hearing. Undoubtedly, the acts and omissions of
respondent judge warrant sanction from this Court.

Though not every judicial error bespeaks ignorance of the law or of the rules, and that, when
committed in good faith, does not warrant administrative sanction, the rule applies only in cases
within the parameters of tolerable misjudgment. When the law or the rule is so elementary, not to be
aware of it or to act as if one does not know it constitutes gross ignorance of the law. One who
accepts the exalted position of a judge owes the public and the court proficiency in the law, and the
duty to maintain professional competence at all times. When a judge displays an utter lack of
familiarity with the rules, he erodes the confidence of the public in the courts. A judge is expected to
keep abreast of the developments and amendments thereto, as well as of prevailing jurisprudence.
Ignorance of the law by a judge can easily be the mainspring of injustice. 15

In the absence of fraud, dishonesty, or corruption, the acts of a judge in his judicial capacity are not
subject to disciplinary action. However, the assailed judicial acts must not be in gross violation of
clearly established law or procedure, which every judge must be familiar with. Every magistrate
presiding over a court of law must have the basic rules at the palm of his hands and maintain
professional competence at all times.16

Section 8, Rule 140 of the Rules of Court classifies gross ignorance of the law or procedure as a
serious offense for which the imposable sanction ranges from dismissal from the service to
suspension from office, and a fine of more than ₱20,000.00 but not exceeding ₱40,000.00. Under
the premises, this Court finds it appropriate to impose on respondent judge the penalty of a fine in
the amount of ₱25,000.00.

WHEREFORE, Judge Godofredo B. Abul, Jr., of the Regional Trial Court, Branch 43, Gingoog City,
is found liable for Gross Ignorance of the Law and Procedure, and is hereby meted a fine of
₱25,000.00, with a stern warning that a repetition of the same, or any similar infraction in the future,
shall be dealt with more severely.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR: