I.

ABSTRACT

"The torment of precautions often exceeds the dangers to be avoided."

Napoleon Bonaparte

The role of genetically modified organisms (GMO) into crops through Genetic
Engineering Technology (GET) for food security is an emerging theme of public controversy
and debate amongst policymakers and the scientific community. Advocates believe that GM
crops could contribute to the increase in food production and higher food availability. Growing
GM crops may not only influence farmers’ income but also the general public’s economic
accessibility to food. On the other hand, Environmental Activist belie the those claims and are
firm on their concerns regarding its potential hazards to human health and the environment in
general. Even Prince Charles once berated that GMOs are “the biggest environmental disaster of
all times”.1 The Supreme Court (SC) of the Philippines in its July 26, 2016 decision over the
consolidated case of International Service for the Acquisition of Agri-Biotech Applications, Inc
vs Greenpeace Southeast Asia2. unanimously enjoined permanently the field experiments on Bt
Talong (Bacillus thuringiensis) - a genetically modified vegetable, based on the Precautionary
Principle (PP for brevity). The Supreme Court did not only stop the conduct of field test, it also
restrained the propagation, commercialization and importation of GMO.

The objective of this paper is to re-examine the government’s cautionary stance against
the introduction of Biotechnological innovations particularly GMO into Philippine Agricultural
Crops on the basis of the Precautionary Principle. This paper will discuss in greater scope what
are GMO’s and what are the current policies that are being implemented as regards it production,
handling and usage as well as existing laws in foreign jurisdictions. This paper will also discuss
ambiguities of the PP which can arbitrarily vest limitless power to grant regulators and courts
unlimited discretion in its application, undermining transparency, accountability, and equity.
This paper will attempt to convey a message as to whether which risk outweighs the other; Food
safety or Food security? Long term health effects or addressing an imminent food crisis? Lastly,
this paper will find out whether the judicial status quo about this matter could provide a shaky
foundation for our courts in its judicial power and possibly do serious harm to the economy and
society in its long term.

II. INTRODUCTION

The Supreme Court of the Philippines held that PP applies in the BT Talong field trial
case since the risk of harm the said experiment remains uncertain and there exists a possibility of
serious and irreversible harm. Given the country’s rich biodiversity, the consequences of
contamination and genetic pollution caused by introducing and propagating Genetically
Modified Organisms (GMO) would be disastrous.

1
Randall, Jeff. “Prince Charles Warns GM Crops Risk Causing the Biggest-Ever Environmental Disaster.” The
Telegraph, Telegraph Media Group, 12 Aug 2008, Retrieved from
https://www.telegraph.co.uk/news/earth/earthnews/3349308/Prince-Charles-warns-GM-crops-risk-causing-the-
biggest-ever-environmental-disaster.html (last accessed 20 Sept 2019)
2
GR No 209271, July 26, 2016
 Some GMO proponents maintain that the PP is but a “proof-seeking fallacy” (Curry
2013) where “when determining whether or not a scientific hypothesis should be accepted, for
the time being, the onus of proof falls squarely to its adherents. Similarly, those who claim the
existence of an as-yet unproven phenomenon have the burden of proof” (Curry 2013). 3 A
potential adverse effect is a judgment that is not a matter of interpreting law but a matter of
evaluating scientific evidence. While it may be correct to use the PP, because it is what the law
says, deciding whether a technology should be covered by the PP is another matter. While all
technologies have elements of risk, not all of them can be banned on the basis of the PP.

The concept PP was rooted in the environmental discussion of the ’70s and a translation
from the German term Vorsorgeprinzip. In the ‘80s German Ecologist Konrad von Moltke first
introduced this concept for a British audience, which he coined into English as the Precautionary
Principle (Christiansen 1994).4

The principle is based on the realization that increasingly complex interactions between
natural phenomena, which often are not fully understood, do not always make it possible to
adopt early on and with certainty, the appropriate measures for preventing an environmental
threat, and yet the failure to adopt precautionary measures might result in irreversible
environmental damage (Perrez 2003).5 The essence of the principle is best captured in a number
of cautionary maxims such as "an ounce of prevention is worth a pound of cure", "better safe
than sorry", and "look before you leap".

This principle may be taken up differently in different specialized fields and also
understood differently at the national and international levels. A comprehensive and often cited
definition can be found in the 1998 Wingspread Statement:

“When an activity raises threats of harm to human health or the environment,

precautionary measures should be taken even if some cause and effect relationships are
not fully established scientifically.”6

The 1987 Philippine Constitution mandates the right to a healthy environment which
provides that: “The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.” Section 15 of the same
Article provides that: “The State shall protect and promote the right to health of the people and
instill health consciousness among them.”7

3
Curry, Judith. “Fallacies of Risk.” judithcurry.com. judithcurry.com, 20 Nov. 2013. Web. 2 Dec. 2019. Retrieved
from https://judithcurry.com/2013/11/20/fallacies-of-risk (last accessed 21 Sept 2019)
4
Sonja Boehmer Christiansen. The Precautionary Principle in Germany: Enabling Government. Chapter 2 in
Interpreting the Precautionary Principle, eds Tim O'Riordan and James Cameron Earthscan Publications Ltd, 1994
5
Perrez, Franz. (2003). The World Summit on Sustainable Development: Environment, Precaution and Trade – A
potential for Success and/or Failure. Review of European Community & International Environmental Law. 12. 12 -
22. 10.1111/1467-9388.00340., page 15
6
The Precautionary Principle in Switzerland and Internationally. Synthesis Paper by the Interdepartmental Working
Group on the Precautionary Principle, 23 Aug. 2003,
https://www.who.int/ifcs/documents/forums/forum5/synthesepaper_precaution_ch.pdf (last accessed 21 Sep
2019)
7
1987 Philippine Constitution Sec 16, Article 2
 As enshrined in the 1993 landmark case of Oposa vs Factoran, Section 15 is a self-
executing and a judicially enforceable provision and is even a right despite not being part of our
Bill of Rights for it concerns nothing less than self-preservation and self-perpetuation.

“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.”8

In line with the state policy in protecting and advancing the constitutional right of the
people to a balanced and healthful ecology, the Supreme Court in 2010 promulgated
Administrative Circular 09-6-8 SC laying out the Rules of Procedure for Environmental Cases y
wherein among other breakthroughs such as the Writ of Kalikasan and Strategic, Environmental
Protection Order and Strategic lawsuits against public participation (SLAPP), it also set the
parameters in the application the PP, to wit: (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.9 It was based on the premise that “when human
activities may lead to threats of serious and irreversible damage to the environment that is
scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat.”10
The PP bridges the gap in cases where scientific certainty in factual findings cannot be achieved.
In effect, the PP shifts the burden of evidence of harm away from those likely to suffer harm and
onto those desiring to change the status quo.11

On the downside, applying the PP implies restrictions on human actions. The PP could
contribute to a collective feeling of anxiety and uneasiness in the society (Tubiana 2001).12 It
could be used by campaigns to manipulate public opinion in favor of a particular commercial
interest or ideology. Furthermore, practitioners and public policymakers could be led to make
choices not dictated by a search for the optimal solution but rather a solution that would protect
them from future accusations.13

8
Oposa vs Factoran 224 SCRA 792 (1993)
9
Administrative Matter No. 09-6-8-SC dated April 13, 2010, which became effective on April 29, 2010, Rule 20,
Section 2
10
Id. at Rule 1, Section 4 (f)
11
Id. at Rule 20, Section 1, Paragraph 3
12
Tubiana, M. The precautionary principle: advantages and risks. Journal de chirurgie. 2001. n.p. Retrieved from
http://www.biomedsearch.com/nih/precautionary-principle-advantages-risks/11319454.html (last accessed Sept
30, 2019)
13
Ibid
 PP as a legal requirement creates two types of problems. First, it creates the opportunity
for arbitrary and unpredictable decisions by agencies, governments, and courts. Second, it
makes it very difficult for courts to perform their responsibility to ensure the reasonableness of
agency decisions (Marchant 2003) .14 Furthermore, the PP will slow down or perhaps hinder
development or innovation since the burden of proof is on the product/service before it goes out
to market.

It is difficult to acertain how the PP can help address risks for which we are ignorant
rather than uncertain as it is not possible to prevent the unforeseen. In other words, PP still leaves
us bound by present knowledge. Simply put, it is easier to prove the existence of risk than the
absence of risk.

The PP opens up to new risks since preacaution in one area often leads to inadvertent risk
in another. In this case, the sustainability of food production especially in third world countries.

If absolute safety will be used as the standard by the courts, does this mean that no
technology will pass judicial challenge? How will this impact our farmers who would like to
utilize biotechnology to improve their production amidst climate change, pestilence and import
competition among other factors that negatively affect their productivity? This measure is now
running the risk of becoming unscientific and marginalizes the role of science and technology.
This is the case since precautionary measures are taken against a threat even if scientific
evidence has not been founded.

14
Marchant, Gary E. (Nov 2003)“From General Policy to Legal Rule: Aspirations and Limitation of the Precautionary
Principle” Last modified unknown, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1241727/pdf/ehp0111-
001799.pdf. (last accessed Sept 30, 2019)