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A misapplication of the Writ of Kalikasan


(Reposting from Manila Bulletin)
A misapplication of the Writ of Kalikasan
(Part 1)
by Dr. Emil Javier
December 19, 2015
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The Supreme Court (SC) decision to permanently halt the field testing of the genetically modified Bacillus thuringiensis (Bt) eggplant developed by the Institute of Plant Breeding (IPB) at UP Los Baños (UPLB) was a huge letdown for the Philippine science community, to say the least.
We are not world leaders in science by any measure and there are only a few precious fields of science where we are able to keep pace with the rest of the world. The SC unwittingly effectively denied us even that little space under the sun.
But the real losers are the poor farmers themselves and the consuming public. Our small farmers are deprived of modern means of raising productivity, competitiveness and incomes. They are denied potential sustainable farming technologies that can substantially reduce the need for harmful pesticides to protect their crops. And they are prevented from having access to more climate-resilient crops in the future which can tolerate drought, temporary inundation and salt-intrusion.
Big losers as well are the low-wage-income consumers who are ultimately penalized with high food prices and excessive pesticide residues in the food they eat. Likewise, the poor and malnourished, who are deprived of the benefit of improved nutrition built into the seed at no extra cost e.g. biofortification of rice with enhanced levels of Vitamin A (the Golden Rice).
All of these because of an unfortunate misapplication of the Writ of Kalikasan, a legal remedy under Philippine law which protects the rights of Filipinos to a balanced and healthful ecology.
Eggplant is a very popular vegetable among Asians, including us Filipinos. However, eggplant is very susceptible to the eggplant fruit and shoot borer (FSB) insect which not only kills the plants but also renders the fruits inedible and non-marketable. The insect pest is so pernicious that farmers often have to throw away 50 to 70% of their harvest.
In order to protect their eggplant crops, farmers resort to chemical pesticides. Infestation is so bad that many farmers had to spray every other day. The more desperate ones have been observed to practice dipping each hanging eggplant fruit into a container full of chemicals.
The Bt eggplant which has built-in resistance to the FSB was intended to replace the chemical spray technology which Filipino farmers currently employ to raise the eggplants we eat.
Ironically, instead of hailing the development by Filipino scientists of a naturally insect-resistant variety of eggplant as a significant step forward to reduce use of harmful pesticides in our food chain, our Courts have declared “the Bt eggplant technology as constituting a grave and present danger (and an assault on) the Filipinos’ constitutional right to balanced and healthful ecology.”
The division of the Court of Appeals which issued the restraining order against Bt eggplant research justified its original ruling that the Bt eggplant deprives Filipinos of their right to a balanced ecology on the theory that introducing a genetically modified plant into our ecosystem is an “ecologically imbalancing act.”
The exact wordings as reproduced in the SC decision is as follows:
“…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 ecosystems.
….Bt talong is a technology involving the deliberate alteration of an otherwise natural state of affairs… It is a deliberate genetic construction 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).
…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 unbalancing event or phenomenon.”
The absurdity of this quaint theory of the right to a balanced ecology should be obvious to any serious student of science and biology. The whole of civilization, the business of agriculture and the practice of medicine are precisely premised on altering/tilting/modifying the balance of nature to suit man’s needs and purposes.
The use of human labor or tractors to cultivate the fields are intended to suppress the weeds which compete with crops for water, soil nutrients and sunlight. We spray biological agents, organic as well as synthetic pesticides, on our crops to eliminate insects and diseases which damage them. We apply ointments, inject vaccines, take medicines and irradiate ourselves to rid our bodies of parasites, fungi, bacteria and viruses which imperil our health.
By this absurd theory of balanced ecology, which unfortunately the SC en banc naively seemed to have adopted as its own, the whole of agriculture and the practice of medicine which by their very nature alter the state of natural affairs to help man acquire food, fiber and shelter, and to protect our bodies from infections and infestations will have to be banned by application of the Writ of Kalikasan.
To be continued… A misapplication of the Writ of Kalikasan (Part 2)
Dr. Emil Q. Javier is a Member of the National Academy of Science and Technology (NAST) and also Chair of the Coalition for Agriculture Modernization in the Philippines (CAMP).
For any feedback, email eqjavier@yahoo.com.
(Reposting from Manila Bulletin)
A misapplication of the Writ of Kalikasan (Part 2)
by Dr. Emil Javier
December 26, 2015
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The second half of the Writ of Kalikasan has to do with the right to a healthful ecology. Specifically, the question the Court had been asked to resolve was whether the consumption of Bacillus thuringiensis (Bt) eggplant is potentially harmful to the health of Filipinos.
The Bt eggplant is identical with the conventional eggplant except for the artificial introduction of a gene from the bacterium Bacillus thuringiensis. The Bt gene confers to the eggplant the ability to synthesize a class of proteins called Cry1A which are toxic to the eggplant fruit and shoot borer (FSB) and other insects belonging to the order Lepidoptera (commonly referred to as butterflies).
image: http://www.mb.com.ph/wp-content/uploads/2014/09/16Eggplant-300×300.jpg
16EggplantThe Cry1A proteins while toxic to butterflies are harmless to human beings, other mammals and other insects belonging to different Orders like beetles, flies and mosquitoes.
They are benign to man for two reasons. The Cry1A toxins require an alkaline environment. They are immediately denatured and digested into their harmless component amino acids by the acidic gastric juices in our stomachs.
Moreover, in order for these proteins/toxins to be effective they have to be recognized by molecular receptors called cadherins found in the gut of susceptible insects. These specific receptors are not found in the human intestine. Thus by no stretch of imagination can these Cry 1A toxins bioengineered into Bt eggplant be harmful to people.
Incidentally, there is nothing sinister about Bacillus thuringiensis. It is a very common soil bacterium the world over. Its insecticidal properties were first recognized by Japanese scientists in 1901. Large scale commercial production of Bt insecticide spray commenced in the US in 1958.
Rachel Carson in her landmark novel “Silent Spring” recommended Bt as a biological pesticide because it has much less environment impact than conventional chemical pesticides.
The biochemistry and mode of action of this special class of proteins/toxins preclude threat of harm to human beings. Therefore, the notions of uncertainty, the possibility of irreversible harm and the possibility of serious harm, the three conditions which justify the application of the precautionary principle do not apply.
Thus on substantive scientific grounds to declare that the introduction of Bt eggplant is a grave and present danger to (and an assault on) the Filipinos’ constitutional right to a balanced and healthful ecology taxes the imagination. The only way to make the decision look logical is to demand absolute certainty, a standard of proof so high that it is irrational.
The SC permanently stopped the further field testing of Bt eggplant. In addition, the Court declared the Department of Agriculture’s (DA) Administrative Order (AO) No. 8, Series of 2002 which provide the rules and regulations for the importation and release into the environment of plants and plant products derived from the use of modern biotechnology as NULL and VOID.
The Court found DA-AO 8 inadequate on procedural grounds and consequently TEMPORARILY ENJOINED any application for contained use, field testing, propagation and commercialization and importation of genetically modified organisms (GMOs) until a new administrative order is promulgated in accordance with law.
This second part of the SC decision has disastrous immediate consequences to our food security. With DA A.O. 8 NULL and VOID there is no longer a valid basis for importing the millions of tons of GMO soybean meal which constitute a very significant part of the commercial feeds for our pigs, chickens and cows. Unfortunately, practically all the soybean grown in the United States and Argentina from whom we import soybean meal are genetically modified.
Likewise, our corn farmers are no longer allowed to plant GMO hybrid yellow corn which are very high-yielding and profitable. Last year our farmers raised 830,000 hectares of GMO corn hybrids bioengineered with the same Bt gene bred into Bt eggplant to protect the corn plants from the dreaded Asiatic corn borer insect so in addition to soybean meal, the livestock sector must also find alternative sources of feed corn to replace the estimated 3.5 million tons of domestic GMO feed corn.
If the SC decision were immediately executory, it will be goodbye for the modern poultry and livestock sector. What will be left are the ORGANIC free-range chickens and the backyard native pigs fed with kitchen slops, coconut and occasional sweet potatoes and banana stalks.
With the most severe El Niño even on record in progress, affecting agriculture in most parts of the world, most agricultural commodities shall be in short supply. This early President Aquino should declare a state of imminent (food insecurity) calamity like what Governor Joey Salceda did for Albay before Typhoon Nona.
This must be giving fits to poor Agriculture Secretary Proceso Alcala who is an advocate of the recent law on organic farming which forbids use of GMO crops.
Nevertheless, this temporary injunction leaves a slight opening in the door for the Departments of Agriculture, Environment and Natural Resources, Health, Local Governments and Science and Technology to put their acts together in a joint memorandum order/circular to cover all the procedural aspects in the disposition of matters regarding GMO crops.
Likewise, time for Congress to enact legislation — “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.”
However, with an election year coming and Congress busy with many other important national issues like BBL, Charter change, federalism and taxes, the earliest a GMO law can be crafted could very well be in late 2017.
That’s the bad news! But there is also a not-as-bad news in the Supreme Court (SC) decision.
These not-as-bad news can be found in the concurring majority opinion of Associate Justice Marvic Leonen who clearly articulated that “. . . The results of this case are neither an endorsement nor a repudiation of genetically modified ingredients, processes and food products.”
In an admirable display of judicial restraint Justice Leonen added … “ We also need to be careful that the chambers of this Court do not substitute for the needed political debate or the analytical rigor required by truths in science.”
To be continued. . . Global scientific consensus on GMO crops (Part 3)
Dr. Emil Q. Javier is a Member of the National Academy of Science and Technology (NAST) and also Chair of the Coalition for Agriculture Modernization in the Philippines (CAMP).
For any feedback, email eqjavier@yahoo.com.
(Reposting from Manila Bulletin)
A misapplication of the Writ of Kalikasan (Part 3)
by Dr. Emil Javier
January 2, 2016
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There are those who look at things the way they are, and ask why . . .
I dream of things that never were, and ask why not? . . . Robert Kennedy.
The application of the Writ of Kalikasan on the conduct of field testing of Bt eggplant was unwarranted both on procedural and substantive grounds.
Associate Justice Marvic Leonen himself in his concurring majority opinion pointed out that the petition for the writ as it assails the field testing permits for Bt talong should have dismissed and considered moot and academic. The two-year permits for the Bt talong field tests were about to expire and the field tests themselves have been completed. There was therefore according to Justice Leonen grave abuse of discretion which amounts to excess of jurisdiction on the part of the Court of Appeals.
In fact, Associate Justice Leonen chided Greenpeace and the other respondents: “. . . Environmental advocacy also requires as understanding of science and locating of the proper place of various norms such as the precautionary principle. . . Filing a judicial remedy about two years late and without the required scientific rigor required by the allegations and the arguments misses these standards.”
For the Courts to conclude “that the testing and introduction of Bt talong by its nature and interest is a grave and present danger (and an assault on) the Filipinos’ right to a balanced ecology because the genetic construction of the Bt talong is meant to eliminate one feeder (the borer) in order to give undue advantage (the humans)” is very naïve to say the least.
All of agriculture and medicine are meant to alter/tilt/modify the balance of nature in favour of man’s needs and purposes against other living things (the weeds, insects, other pests, parasites, fungi, bacteria and viruses) which attack crops, livestock and man’s own person.
By this interpretation of the Writ of Kalikasan the business of agriculture and practice of medicine will have to be forbidden.
This quaint theory of balanced ecology misses the point that the balance in nature is not static but dynamic and constantly changing. Changes in the environment whether natural or man-made alter/modify the natural order of things and the various components of the ecological systems accordingly respond/react to attain a new equilibrium. Species continually evolve and new species come into being as others less environmentally fit become extinct.
Actually the greatest threat to biodiversity is the loss of habitat due to conversion of forestlands, savannahs and mangroves into farmlands, forest plantations and fishponds. Thus, the best way to conserve biodiversity in addition to seed cold stores and genebanks (ex situ conservation) is by way of protected areas (in situ conservation), the many NIPAS under the jurisdiction of the Department of Environment and Natural resources (DENR) where all man’s interventions are excluded. Corollarily, it is also best to sustainably optimize production from the existing farm lands, forest plantations and fish ponds to obviate demand for further clearing of natural habitats.
Moreover, the biochemistry and mode of action of the specific Cry1A proteins/toxins artificially introduced into Bt talong while toxic to the eggplant fruit and shoot borer (FSB) and other lepidopterans are harmless to humans, mammals and other insect orders.
The Cry1A proteins/toxins are neutralized and digested by the gastric juices in our stomachs into their component amino acids.
The proteins/toxins to be effective must adhere to certain molecular receptors called cadherins which are found in the gut of susceptible insects. The human intestine does not have these specific molecular receptors and hence this class of toxins is innocuous to human beings.
Between Bt talong versus the excessive chemical pesticides used to control the eggplant FSB, the Bt technology ought to be safer for all concerned and more profitable to small farmers.
Since the Greenpeace petition against Bt talong field trials is in fact moot and academic, the Supreme Court (SC) proceeded on its own and declared the Department of Agriculture Administrative Order (DA-AO) No. 8 series of 2002 as null and void.
This ruling goes much farther than Bt talong since DA-AO No. 8 provided the rules and regulations and the legal basis for the importation and release into the environment of plants and plant products derived from the use of modern biotechnology.
The SC observed that “. . . There exists a preponderance of evidence that the release of GMOs into the environment threatens to damage our ecosystems, and not just the field trials, and eventually the health of our people. . .”
This is where the SC grievously erred. There is no unanimity but there is broad global scientific consensus on the safety of GMO crops.
The following prestigious international and national scientific bodies have placed on record their endorsement that GMO crops as are safe as their conventionally produced counterparts; See exact quotes in October 11, 2015 issue of Manila Bulletin Why not column.
• World Health Organization
• National Academies of Science (USA)
• The Royal Society (United Kingdom)
• European Food Safety Authority
• American Association of the Advancement of Science
• American Medical Association
• Chinese Academy of Sciences
• Brazilian Academy of Sciences
• Indian National Science Academy
• Mexican Academy of Sciences
• Third World Academy of Sciences
In contrast, as far as the literature shows, NO RESPECTABLE NATIONAL ACADEMY OF SCIENCE has expressed objection to GMO crops. Unfortunately, the SC gave more credence to the anti-GMO concerned scientists cited by Greenpeace who is a distinct albeit loud, fear-mongering minority.
Even in the European Union, where many countries have imposed a moratorium on the planting of GMO crops (but not importation and consumption) their chief scientific advisor Dr. Anne Glover had these very forceful words to say:
“. . . There is no substantiated case of any adverse impact on human health, animal health or environmental health, so that’s pretty robust evidence, and I would be confident in saying that there is no more risk in eating GMO food than eating conventionally farmed food.”
The Pew Research Center in collaboration with the American Association for the Advancement of Science (AAAS) released in January 2015 the findings of the survey of US adult citizens and US-based members of AAAS. The survey showed that an overwhelming majority (88%) of scientists polled agreed that GM foods are generally safe. This statistic has a margin of error of 1.7%.
In contrast, only 37% of the American public believe GM foods are safe.
The Pew Research Center is part of Pew Charitable Trusts, an independent, non-profit, non-governmental organization founded by the heirs of John Pew owner/founder of SUNOCO oil company. It is a conservative organization whose environment portfolio includes saving the natural environment and protecting the rich array of life it supports.
The AAAS, established in the US in 1848, is the world’s largest general scientific society and publishes the highly regarded journal “Science.” It had 126,995 members in 2008.
The United States is not the universe but if 88% of the scientists surveyed belonging to the AAAS agree that GM crops are safe, that’s about as close we can get to a scientific consensus. Incidentally, that’s a shade better than the 87% American scientists in the same survey who agree that climate change is occurring because of human activities.
Dr. Emil Q. Javier is a Member of the National Academy of Science and Technology (NAST) and also Chair of the Coalition for Agriculture Modernization in the Philippines (CAMP). For any feedback, email eqjavier@yahoo.com


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