The PH Supreme Court’s Reversal of the Bt-eggplant Case Need Not Dismay Environmentalists

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
24 August 2016

marvicleonen

from : http://newsinfo.inquirer.net

 

The Philippine Supreme Court’s reversal of its earlier decision dated last 8 December 2015, which nullified the field testing of genetically-modified eggplants (or talong, the Filipino word for the vegetable plant) is something that should not worry environmentalists in the country, not only those who were the original petitioners in the case who were largely composed of organizations and known individuals who are concerned about the environment (like former Senator Orly Mercado, Dean Nina Galang or Dean Ben Malayang, etc.), but also the agencies that deal with the environment, particularly the Department of Environment and Natural Resources and its attached Bureaus and similarly-concerned agencies and instrumentalities of the government, including the local government units, especially so when this case originated when then Davao City Mayor Sarah Duterte (who is again the mayor of Davao City) implemented the city’s ordinance banning GMOs.

The main reason for this view is that the situation prevailing in the country’s biosafety regulatory framework before 8 December 2015, where the Department of Agriculture’s Administrative Order No. 8, series of 2002 (DAO 08-2002) was in force and in effect, will not be restored by this ruling.

Why can’t the Court bring back the said regulation and make it legally effective again, the Court does not directly say why but it stated repeatedly in pages 14, 15 and 21 of the Decision that DAO 08-2002 has already been superseded by Joint Department Circular No. 1, series of 201689 (JDC 01-2016). The Supreme Court reiterated that this new regulatory framework has rendered obsolete the need to assess the merits of the Bt-eggplant field trials in addition to the fact that these field trials were long over even before the case was filed by petitioners on 26 April 2012.

Somehow, the ruling is one where the Supreme Court tried to be generous and gave both sides an opportunity to claim they won, like when the Supreme Court first announced the reversal of its earlier decision last 26 July 2016, it was gleefully announced by the Filipino and foreign promoters and backers of genetic engineering technology in social media and radio that the ruling was reversed, and policy commentators like us were actually concerned about the state of existing policy, so what happens now, especially that the Department of Agriculture, led by Asst. Secretary Paz Benavidez and Undersecretary Dennis Guerrero had adroitly managed the process of multi-stakeholder consultations to revise the then nullified DAO 08-2002 and replaced it with JDC 01-2016, all of which processes were completed around the first quarter of 2016, our question when we heard the Supreme Court reversed its ruling was : would the Supreme Court nullify this recent joint administrative order which is notable for it being a regulation where all key agencies involved in the process of approving the field testing and commercialization of genetically-modified organisms or GMOs in the country have had their say in how the new regulation was formulated and will henceforth be implemented.

It was only unfortunate that the NGOs which led the petition did not actively participate in the consultations (which, whatever reasons they may have for that decision only they actually know, but as usual, it should be respected) and while that could have had a bearing in the final decision had it been asserted by the losers of the case when they asked for a reconsideration of the case, the Supreme Court, for the good of the country, accepted the state of affairs as they are now, as, in fact, in pages 15-19 of the Decision, the thrusts as well as a comparison of JDC 01-2016 with DAO 08-2002, was painstakingly explained by the Court.

So now that the text of the ruling is before us, and it took us a long while to await the posting of the 26 July 2016 ruling in the website of the Supreme Court, and while this may be a lengthy aside but it is worth saying now, we are not sure if this current practice of the Supreme Court announcing its rulings via press conference and releasing the text of its ruling many days after that announcement will be healthy for an up-to-date public comment and debate on the merits of the decision, since the net effect of this practice is to make the public lose interest in the decided case since by the time the text of the ruling is released, the interest of the public on the case is pre-occupied with what may be the burning issue at the moment, thus really preventing a current and intelligent discussion of the merits of whatever ruling which is key to educating the public on the whys and wherefores of the cases decided by the Supreme Court. Or perhaps that is the purpose of the Supreme Court, precisely to cool down the passions of whoever may win or lose any Supreme Court case.

Anyway, going back to our point, the original petitioners and the environmentalists in the country in general, also (as compared to the pro-GMO side) and effectively, won this case since the much-criticized DAO 08-2002 can no longer be brought back and at least in the approval process for the field testing, large-scale planting and commercialization of GM crops in the country, they are now subject to clearer rules in environmental impact assessment and public participation, which are the main reasons why the said administrative order was nullified in the 8 December 2015 decision.

Based on what was asked by petitioners however, this reversal of the Supreme Court of its earlier ruling means the Court is dismissing the Writ of Kalikasan case against GMOs.

The Writ of Kalikasan is a special set of rules established by the Supreme Court in 2010 and it provides for specific reliefs for violations of environmental laws and among its unique remedies that depends on what may be asked by petitioners to rehabilitate the environmental damage is the novel remedy of “continuing mandamus” whereby the Supreme Court or any of its lower courts will supervise the implementation of measures that the court may set to remedy the environmental harm caused by acts that were subjected to the suit.

Had the 8 December 2015 ruling been upheld, the public would have had an opportunity to be educated by the Supreme Court on the nitty-gritty aspects of the environmental implications of GMOs. In addition, there would have been also a good binding precedent that can be used in later cases, though on the most-fancied environmental precept called the precautionary principle, actually the Court did not propound some refinement of that rule in its earlier ruling as it actually said it is avoiding making any ruling on it so there was nothing lost in the ruling that was not upheld.

What is helpful though for law students and law practitioners is the Supreme Court’s technical exposition on why the case is actually not an exception to the general rule on the mootness of cases before the Supreme Court, thus the short answer really on why the case is dismissed is that it is moot and it does not fall into the four exceptions on why cases should be taken up by the Supreme Court in spite of them being moot, which are : 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

So, what’s important to emphasize in spite of the legal doctrines laid out by the Supreme Court which may not yet be relevant at this stage and it is difficult to speculate what is good or bad in it is that things will not be returning to the way they were in terms of biosafety regulation in the country and that is something that the environmentalists will prefer even if they lose out in discussing the nitty-gritty legal aspects of GMOs especially in the terms as set by the Writ of Kalikasan rules.

In the new regulatory set-up, EIA rules along the lines of existing DENR requirements will apply, including the rules of Codex Alimentarius, in matters relating to assessment of the food safety and health aspects of GMOs, and there’s a clearer procedure when those rules will apply in cases of contained use and confined test, field trial, commercial propagation, direct use as food and feed, or for processing and importation of GMOs which is called “regulated article” in JDC 01-2016.

Finally, on the matter relating to the process of public participation in making biosafety decisions, which was found to be defective by Justice Leonen in his concurring opinion in the 8 December 2015 decision, they are now actually adjusted by JDC 01-2016 and the said issuance addressed Justice Leonen’s concerns. In spite of the shortness of his concurrence this time, he effectively put DAO 08-2002 to the dustbin of history when he said the constitutionality of DAO 08-2002 was properly raised, so the proponents of the previous regulatory framework can never effectively claim it should be revived, even perhaps just for policy discussion purposes.

Of course, whether JDC 01-2016 had addressed  the very specific concerns raised by the  petitioners is another matter since even Justice Leonen said, the validity of that regulation is not in issue here;  perhaps  he said that  in anticipation of a future time where a proper case may be filed to put the regulation  into  litigation, to clarify definitively the issues relating to GMOs in the Philippines and in that case, the rules that will be set by the Supreme Court will set a legally-binding precedent to guide everybody, which is not what  happened here

oOo

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