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.

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

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
existence of an as-yet unproven phenomenon has 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

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.

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 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) p

8
Oposa vs Factoran 224 SCRA 792 (1993)