Republic of the Philippines

SUPREME COURT
Manila

GREENPEACE
SOUTHEAST
ASIA
(PHILIPPINES),
MAGSASAKA
AT
SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA
(MASIPAG),
REP.
TEODORO CASIO, DR. BEN MALAYANG
III, DR. ANGELINA GALANG, MR.
LEONARDO AVILA III, MS. CATHERINE
UNTALAN, ATTY. MARIA PAZ LUNA, MR.
JUANITO MODINA, MR. DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCY KIAT, ATTY. H. HARRY ROQUE,
JR., FORMER SEN. ORLANDO MERCADO,
MR.
NOEL
CABANGON,
MAYOR
EDWARD
HAGEDORN,
EDWIN
MARTHINE LOPEZ
Petitioners,

- versus -

SC GR SP No. _______________
Petition for Continuing Mandamus
and Writ of Kalikasan
with Prayer for TEPO

ENVIRONMENTAL
MANAGEMENT
BUREAU OF THE DEPARTMENT OF
ENVIRONMENT
AND
NATURAL
RESOURCES,
BUREAU
OF
PLANT
INDUSTRY AND THE FERTILIZER AND
PESTICIDE
AUTHORITY
OF
THE
DEPARTMENT OF AGRICULTURE, UP
LOS BANOS FOUNDATION, INC., UP
MINDANAO
FOUNDATION,
INC.,
INTERNATIONAL SERVICE FOR THE
ACQUISITION
OF
AGRI-BIOTECH
APPLICATIONS-SOUTHEAST
ASIA
CENTER,
Respondents.
x-------------------------------------------------------------x

PETITION FOR WRIT OF CONTINUING MANDAMUS

AND WRIT OF KALIKASAN
WITH PRAYER FOR THE ISSUANCE OF A
TEMPORARY ENVIRONMENTAL PROTECTION ORDER
(TEPO)
________________________________________________
1

PETITIONERS, through the undersigned counsels, and to this Honorable Court,

respectfully aver:

PREFATORY STATEMENT

Science is a compelling factor for the advancement of humanity. But it is not a

justification to violate laws, disregard peoples consent, and risk their health and
livelihood, and the environment.

In fact, the success and credibility of science is not only founded on its
mechanism for self-correction by which scientists are willing to expose their ideas to
independent testing through open exchange of data, materials, and procedures; and
abandon or modify previously accepted conclusions when confronted with more
complete or reliable evidence, but also because of proper regulation. The latter is to
ensure that scientific experiments and processes are safe, socially acceptable, and not
fraudulent.

In the case of the multi-location field trial of Bt talong-- the subject of this
petition-- Petitioners are seeking the intervention of this honorable High Court to
immediately stop Respondents from pursuing the release to the environment of a
genetically engineered eggplant variety called Bt talong through its field testing in nine
provinces of the Philippines because both the self-correction mechanism and
governmental regulation are unavailing.

Bt talong is a classic environmental case where scientific evidence as to the health

and environmental safety and socio-economic impact is insufficient, inconclusive or
2

uncertain. At the same time, preliminary scientific evaluation indicates that there are
reasonable grounds for concern about their potentially dangerous effects on the
environment and human health.

At the very least, the conflicting claims should lead specifically the Respondent
regulatory agencies to apply the precautionary principle before any field trial is
conducted. However, despite serious uncertainties and concerns about Bt talong,
Respondents continued with their field trial in violation of the precautionary principle
of environmental laws, the peoples rights to a balanced and healthful ecology and to
health, the Philippine Environmental Impact Statement System law, the Local
Government Code, Administrative Order No. 08 of the Department of Agriculture and
Executive Order No. 514.

Because of these violations, concerns about Bt talong field testing can no longer
be entrusted to Respondent regulatory agencies and research institutions. Hence, it is
only through the wise and conscientious judgment of this honorable High Court which
is guided by the precautionary principle that it adopted in its Rules of Procedures for
Environmental Cases, that petitioners can see hope to immediately stop this dangerous
and illegal Bt talong field testing.

THE PARTIES

1. The following are the Petitioners:

1.1.

GREENPEACE SOUTHEAST ASIA (PHILIPPINES) is a non-profit civil

society organization duly registered under Philippine laws in 2000. It aims to protect
the Philippines and Southeast Asia from further ecological ruin and to serve as a beacon
of awareness and action in the interest of environmental protection and sustainable
development. In its sustainable agriculture campaign, Greenpeace focuses on
promoting sustainable development in farming and opposes technologies such as the
use of genetically modified organisms that threatens biodiversity, poses unnecessary
risk to the environment, and which has never been proven safe for human
consumption. It has its office address at No. 30 JGS Building, Scout. Tuason, Bgy.
Laging Handa, Quezon City.

1.2.

MAGSASAKA

AT

SIYENTIPIKO

SA

PAGPAPAUNLAD

NG

AGRIKULTURA (MASIPAG), a farmers-led network of 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, is a duly registered civil society organization under Philippine laws. It has
its office address at 2611 Carbern, Anos, Los Baos, Laguna.

1.3.

All other individual petitioners, whose names and personal circumstances

are found in the verification and certification hereof, are residents in some of the
provinces where the field testing of Bt talong are being conducted, and/or, citizens who
4

are suing in the exercise of their Constitutionally guaranteed health, environmental, and
information rights on their behalf and on behalf of Filipinos and of generations of
Filipinos yet unborn.

1.4.

For procedural convenience and practical reasons, all of the herein named

organizational and individual petitioners may be collectively served with summons and
other legal processes issued from this High Court at No. 30 JGS Bldg., Sct. Tuason, Brgy.
Laging Handa, Quezon City.

2.

The following are the Respondents in this case and why they are being

impleaded herein:

2.1.

The ENVIRONMENTAL MANAGEMENT BUREAU of the Department

of Environment and Natural Resources (DENR-EMB) is the principal agency under

the DENR that has jurisdiction over the grant of environmental compliance certificates
(ECC) in accordance with its duty to formulate, integrate, coordinate, supervise and
implement all policies, plans, programs and projects relative to the management and
protection of the environment. The DENR-EMB may be served with summons and
other court processes at the DENR Compound, Visayas Avenue, Quezon City.

2.2.

The UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION

INC. (UPLBFI) is a private corporation duly organized under Philippine laws with
principal office address at Lanzones Road, UP Los Banos College, Los Banos, Laguna,
where it may be served with summons, notices and other processes of this Honorable
Court. It is being impleaded as Respondent since it is the primary implementing
5

institution of a collaborative project to develop eggplants that are resistant to the eggplant fruit
and shoot borer in the Philippines1.

2.3.

The INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-

BIOTECH APPLICATIONS SOUTHEAST ASIA CENTER (ISAAA-SEAsia Center),

is made a party respondent herein being the international organization supporting the
collaborative undertaking and providing supplemental funds and other technical and
management assistance for the field testing of Bt talong. It has its principal office
address at IRRI, Los Banos Laguna, where it may be served with summons, notices and
other processes of this Honorable Court.

2.4.

The

UNIVERSITY

OF

THE

PHILIPPINES

MINDANAO

FOUNDATION INC. (UPMFI) is a non-government organization duly organized

under Philippine laws, with principal office address at Anda cor. Rizal St., Davao City
where summons, notices and other processes of this Honorable Court may be served
upon it. It is being sued since it is one of the parties responsible for the field testing of Bt
talong, along with ISAAA-SEAsia Center and UPLBFI. It is also the one that provided
the lot in Davao City for the said field testing.

2.5.

The UNIVERSITY OF THE PHILIPPINES, LOS BANOS (UPLB) is an

educational institution, which has principal office address at Lanzones Road, UP Los
Banos College, Los Banos, Laguna, where it may be served with summons, notices and
other processes of this Honorable Court. It is being impleaded as Respondent since it
was mentioned in the Field Trial Proposal as the proponent and lead institution of the
Bt talong field testing. In fact, as the proponent and lead institution, it wholeheartedly

Please see the second Whereas Clause under the MOU, attached hereto as Annex A.

supported the Bt talong field testing by giving its consent and approval to the use of one
of its properties in Bay, Laguna as one of the sites for said field testing.
.
2.6.

The BUREAU OF PLANT INDUSTRY (BPI) is a government agency

responsible in the areas of plant quarantine, seed quality control, crop production and
protection, technology development, agricultural mechanization and laboratory
analytical services. It is being sued herein as the agency responsible in issuing permit to
the Respondents proponents of the Bt talong field trial project without taking into
consideration its harmful effect to human health and the environment. It has its office
address at 692 San Andres St., Malate, Manila, where summons, notices and other
processes of this Honorable Court may be served upon it.

2.7.

FERTILIZER AND PESTICIDE AUTHORITY (FPA) is an agency of

the government under the Department of Agriculture tasked to regulate fertilizers and
pesticides used in plants and crops in the Philippines and therefore, should
Respondents proponents of the Bt talong field trial apply for registration of Bt talong as
herbicidal product, it is the agency responsible to give such permit to said Respondents.
It has its office address at FPA Bldg., B.A.I Compound, Visayas Avenue, Diliman
Quezon City where it may be served with summons, notices and other processes of this
Honorable Court.

STATEMENT OF FACTS

1.

An undated Memorandum of Undertaking (MOU) notarized on 24

September 2010 was entered into by and between the University of the Philippines Los
Baos Foundation, Inc. (UPLBFI), the International Service for the Acquisition of AgrBiotech Application Southeast Asia Center (ISAAA) and the University of the
Philippines Mindanao Foundation, Inc. (UPMFI). A copy of the Memorandum of
Undertaking is attached hereto as Annex A.
2.

The MOU aims to develop eggplants that are resistant to the eggplant

fruit and shoot borer in the Philippines, the technical and commercial viability of which
as applied to the local varieties of eggplants it desires to test through field trials 2 as
part of their research and development programs for, among others, the development
of pest-resistant crops.3
3.

The research involves in particular the multi-location field trial of Bacillus

thuringiensis (Bt) eggplant (which is hereafter referred to as Bt talong). The Bt

talong is a genetically engineered eggplant which confers resistance to fruit and shoot
borer (FSB). The eggplant itself does not confer resistance but carries with it a transgene,
cry1AC derived from the soil bacterium Bacillus thuringiensis that confers resistance to
FSB.4 The FSB is one of several pests that infest an eggplant. Its larva attacks the
terminal shoots and bores inside, resulting from withering and drying of the eggplant
shoots. It also bores into the young fruit and feeds inside which makes the eggplant
fruit unmarketable.

MOU, 2nd Whereas Clause.

MOU, 1st Whereas Clause.
4 Annex C, Public Information Sheet annexed to the Proposal for Field Testing of EE-1 FSB-R Eggplant
2
3

4.

Although the MOU was entered only between UPLBFI, ISAAA and

UPMFI (hereafter collectively referred to as Private Respondents), it was, by its very

terms, a collaborative research and development undertaking involving the Parties
and other partner agencies and programs, which include the University of the
Philippines Los Banos (through the Institute of Plant Breeding thereof), Maharastra
Hybrid Seed Company, Cornell University and the Agricultural Biotechnology Support
Project II (ABSPII) of USAID5. For purposes of this Petition, the said institutions and
agencies, including the Private Respondents, are collectively referred to as the Project
Proponents.
5.

Among the Annexes to the MOU are: 1) FIELD TRIAL PROPOSAL

labeled as ANNEX to MOA UP Mindanao Field Trial Proposal for FSB-R Eggplant,
a copy of which is attached hereto as Annex B; 2) PUBLIC INFORMATION SHEET
FOR FIELD TESTING labeled as ANNEX II UPLB Field Trial Application for FSB-R
Eggplant July 31, 2009, a copy of which is attached hereto as Annex C; and 3)
FIELD TRIAL PROPOSAL labeled ANNEX III UPLB Field Trial Application for
FSB-R Eggplant July 31, 2009, a copy of which is attached hereto as Annex D.
6.

From Annex C or the Public Information Sheet for Field Testing (Public

Information Sheet), the proposal is for the field trial to be conducted for two years
with initial target planting in October 2009.6
7.

The Project Proponents planned and proposed to conduct in different

stages, field trial of Bt talong in different locations with approximately 1,000-2,500 sq.
m. area per site per season7. Following are the locations and their respective Biosafety
Permits for Field Testing8, to wit:

MOU, 2nd Whereas Clause.

See Item 9 of Annex C.
7See Item No. 8, p. 2 of Public Information Sheet for Field Testing dated 31 July 2009, a copy of which is
attached hereto as Annex C.
8 See also http://biotech.da.gov.ph/upload/Annex_IV_as_of_Feb_23_2012.pdf.
5
6

a)

RAFC I Sta. Maria, Pangasinan Biosafety Permit for Field

Testing Number 10-011b dated 16 March 2010, a copy of which is attached

hereto as Annex E;
b)

DA Region II Ilagan, Isabela ;

c)

PhilRice Munoz, Nueva Ecija;

d)

IPB-UPLB Brgy. Paciano Rizal, Bay, Laguna Biosafety

Permit Testing Number 10-011a dated 16 March 2010, a copy of which is

attached hereto as Annex E-1;
e)

CSSAC Pili, Camarines Sur - Biosafety Permit for Field

Testing Number 10-011c dated 16 March 2010, a copy of which is attached

hereto as Annex E-2 ;
f)

DA Region VI Iloilo - Biosafety Permit for Field Testing

Number 10-011d dated 16 March 2010, a copy of which is attached hereto

as Annex E-3;
g)

Visayas State University Baybay, Leyte - Biosafety Permit

for Field Testing Number 10-011f dated 16 March 2010, a copy of which is
attached hereto as Annex E-4;
h)

UP Mindanao Bago Oshiro, Davao City - Biosafety Permit

for Field Testing Number 10-011e dated 16 March 2010, a copy of which is
attached hereto as Annex E-5; and,
i)

University of Southern Mindanao Kabacan, North

Cotabato - Biosafety Permit for Field Testing Number 10-011g dated 16

March 2010, a copy of which is attached hereto as Annex E-6.
8.

Although the MOU names the Private Respondents as the parties thereto,

the named applicant in the Public Information Sheet for Field Testing (Annex C) and
in the Field Trial Proposal (Annex D) is the University of the Philippines Los Baos.
10

This is a glaring misrepresentation as nowhere in the MOU is the University of the

Philippines Los Baos named as a contracting party thereto and responsible for the field
testing. Neither will the university reap benefits from the research based on the terms of
the MOU.
9.

Without applying for and securing the necessary environmental

compliance certificate (ECC), the Project Proponents proceeded to conduct the field
trials in aforesaid proposed locations.
10.

Specifically, field trials were started in Sta. Maria, Pangasinan sometime in

February 2010, in Pili, Camarines Sur sometime in July 2010, in Davao City sometime in
August 2010, in Bay, Laguna sometime in October 2010, and in Kabacan, North
Cotabato sometime in March 2012;
11.

Moreover, the field trials were conducted without consultations with the

local government units, non-governmental organizations, and other sectors concerned

and without explanation about the goals and objectives of the project or program, its
impact upon the people and the community in terms of environmental or ecological
balance, and the measures that will be undertaken to prevent or minimize the adverse
effects thereof as required under Section 26 of the Local Government Code.
12.

The prior approval of the sanggunians in the affected local government

units were also not secured by the Project Proponents. There were instances where local
government ordinances or resolutions were passed banning genetically modified crops
or organisms in their localities and promoting organic farming.
13.

In Pangasugan, Baybay, Leyte, one of the sites for the field testing, the

Baranggay Council of Baranggay Pangasugan, Baybay, Leyte passed a resolution

indicating, among others, that no public consultations were made and because of which
they have resolved to oppose the field testing being done in their locality. A copy of the
Resolution passed on 22 January 2011 is attached hereto as Annex F.
11

14.

The Municipality of Santa Barbara, Iloilo likewise passed a Resolution on

6 October 2010 for the suspension of the field testing in Baranggays Tungay and Lanag
in Santa Barbara, Iloilo. A copy of the Resolution is attached hereto as Annex G.
15.

In Davao City, the City Government ordered the uprooting of the Bt

talong as the field trial conducted thereat was without the approval of the city council.9
16.

The Project Proponents conducted their field trials on the basis solely of

the Biosafety Permit for Field Testing issued by the Bureau of Plant Industry.

See Annex Q.

12

GROUNDS IN SUPPORT OF CONTINUING MANDAMUS

I.

THE BT TALONG FIELD TESTING IS AN ACTIVITY THAT

HAS SIGNIFICANT EFFECT ON THE QUALITY OF THE
ENVIRONMENT, AND AS SUCH IS COVERED BY THE
PHILIPPINE ENVIROMENTAL IMPACT STATEMENT
SYSTEM
(PEISS)
OF
THE
ENVIROMENTAL
MANAGEMENT BUREAU OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES (DENR).

II.

THE BT TALONG FIELD TESTING AS A PROJECT THAT

MAY CAUSE POLLUTION, LOSS OF CROP LAND,
RANGELAND, OR FOREST COVER AND EXTINCTION
OF ANIMAL OR PLANT SPECIES MUST COMPLY WITH
SECTIONS 26 AND 27 OF THE LOCAL GOVERNMENT
CODE.

13

GROUNDS IN SUPPORT OF WRIT OF KALIKASAN

I.

THE HOLDING OF MULTI-LOCATION FIELD TRIALS OF

BT TALONG, PREPARATORY TO ITS EVENTUAL
COMMERCIALIZATION,
VIOLATES
THE
ENVIRONMENTAL RIGHTS OF THE PETITIONERS IN
PARTICULAR AND OF THE FILIPINO PEOPLE IN
GENERAL AS EXPRESSED IN THE CONSTITUTIONAL
RIGHTS TO A BALANCED AND HEALTHFUL ECOLOGY,
AND
TO
HEALTH;
AND
DISREGARDS
THE
PRECAUTIONARY PRINCIPLE THAT GUIDES THE
EXERCISE OF THESE ENVIRONMENTAL RIGHTS.

II.

RESPONDENTS VIOLATED THE CONSTITUTIONAL

RIGHT OF THE PETITIONERS IN PARTICULAR AND OF
THE FILIPINO PEOPLE IN GENERAL TO BE INFORMED
ON ALL MATTERS OF PUBLIC CONCERN, INCLUDING
THEIR RIGHTS TO PARTICIPATION AND TO
CONSUMER PROTECTION.

III.

RESPONDENTS
VIOLATED
EVEN
THE
BASIC
REQUIREMENTS OF THE ALREADY INADEQUATE
REGULATORY PROVISIONS OF ADMINISTRATIVE
ORDER NO. 08 AND EXECUTIVE ORDER NO. 514

14

DISCUSSION
ON THE WRIT OF CONTINUING MANDAMUS

BT TALONG FIELD TESTING DID NOT

COMPLY WITH PEISS LAW
Environmental Compliance Certificate;
Respondents failed to Secure an ECC

17.

Presidential Decree No. 1151 established the Philippine Environmental

Policy where of paramount importance is the protection, preservation and enhancement

of a healthful environment which may not be sacrificed for the sake of economic growth
and the demands of urbanization and modernity. It declared the following policy and
goals as it enunciated the right of the people to a healthy environment, to wit:

Section 1. Policy. -- It is hereby 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.
Section 2. Goal. -- In pursuing this policy, it shall be the
responsibility of the Government, in cooperation with concerned
private organizations and entities, to use all practicable means,
consistent with other essential considerations of national policy, in
promoting the general welfare to the end that the Nation may (a)
recognize, discharge and fulfill the responsibilities of each
generation as trustee and guardian of the environment for
succeeding generations, (b) assure the people of a safe, decent,
healthful, productive and aesthetic environment, (c) encourage the
widest exploitation of the environment without degrading it, or
endangering human life, health and safety or creating conditions
adverse to agriculture, commerce and industry, (d) preserve
important historic and cultural aspects of the Philippine heritage,
(e) attain a rational and orderly balance between population and
resource use, and (f) improve the utilization of renewable and nonrenewable resources.
15

Section 3. Right to a Healthy Environment. -- In furtherance of

these goals and policies, the Government recognizes the right of the
people to a healthful environment. It shall be the duty and
responsibility of each individual to contribute to the preservation
and enhancement of the Philippine environment.

18.

For the attainment of the foregoing policy and goals as well as the

safeguarding and promotion of the right of the people to a healthy environment, the
law required the submission of an environmental impact statement before any proposal
or project may be implemented that significantly affects the environment. Section of
PD 1151 states:

Section 4. 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.

19.

Pursuant

thereto, Presidential Decree No. 1586 established and

institutionalized the Philippine Environmental Impact Statement System (PEISS) which

at present is under the jurisdiction and responsibility of Respondent DENR-EMB.
16

Section 4 of the said law provides compliance with the PEISS for every proposed
project and undertaking which significantly affect the quality of the environment, to
wit:

Section 2. Environmental Impact Statement System. - There is

hereby established a 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. (Emphasis supplied)

20.

In the implementation of the foregoing laws, among others, and driven by

the need for a systems-oriented and more integrated approach to the environmental
impact statement system, the DENR issued the Implementing Rules and Regulations for
the PEISS through Department Administrative Order No. 2003-30 (DAO 2003-30)
with the following basic policy and operating principles, to wit:

Section 1.

Basic Policy and Operating Principles

Consistent with the principles of sustainable development, it is the

policy of the DENR to implement a systems-oriented and
integrated approach to the EIS system to ensure a rational balance
between socio-economic development and environmental
protection for the benefit of present and future generations.
The following are the key operating
implementation of the Philippine EIS System:

principles

in

the

a. The EIS System 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.
b. The EIS System aids proponents in incorporating environmental
considerations in planning their projects as well as in determining
the environments impact on their project.

17

c. Project proponents are responsible for determining and disclosing

all relevant information necessary for a methodical assessment of
the environmental impacts of their projects;
d. The review of the EIS by EMB shall be guided by three general
criteria: (1) that environmental considerations are integrated into
the overall project planning, (2) that the assessment is technically
sound and proposed environmental mitigation measures are
effective, and (3) that social acceptability is based on informed
public participation;
e. Effective regulatory review of the EIS depends largely on timely,
full, and accurate disclosure of relevant information by project
proponents and other stakeholders in the EIA process;
f. The social acceptability of a project is a result of meaningful public
participation, which shall be assessed as part of the Environmental
Compliance Certificate (ECC) application, based on concerns
related to the projects environmental impacts;
g. The timelines prescribed by this Order, within which an
Environmental Compliance Certificate must be issued or denied,
apply only to processes and actions within the Environmental
Management Bureaus (EMB) control and do not include actions or
activities that are the responsibility of the proponent. (Emphasis
supplied)

21.

DAO No. 2003-30 also defines a Project or Undertaking subject to its

coverage as any activity, regardless of scale or magnitude, which may have significant
impact on the environment.
22.

Section 4.2 of DAO No. 2003-30 provides that The issuance of ECC or

CNC for a project under the EIS System does not exempt the proponent from securing
other government permits and clearances as required by other laws.
23.

Applied to the case at bar, it appears that the Project Proponents have not

secured the necessary environmental clearance from Respondent DENR-EMB and yet
they have already started conducting field trials in violation of the foregoing laws, rules
and regulations.
24.

Considering such non-compliance with the PEISS requirements and the

grave and irreparable harm that the field testing may cause to the environment as
discussed herein, there is an urgent necessity to immediately put a stop to the field
trials if only temporarily.
18

DAO 08-2002 Presumes Genetically Modified

Crops or Organisms as Harmful to and
Significantly Affects the Environment and
Requires Risk Assessment before its Entry

25.

The Project Proponents, and perhaps all the other Respondents, may have

the erroneous impression that their field trial for Bt talong is not an activity which may
have significant impact on the environment.
26.

However, Department Administrative Order No. 8, Series of 2002 (DAO

08-2002) of the Department of Agriculture entitled RULES AND REGULATIONS FOR

THE IMPORTATION AND RELEASE INTO THE ENVIRONMENT OF PLANTS AND
PLANT PRODUCTS DERIVED FROM THE USE OF MODERN BIOTECHNOLOGY
under which the Project Proponents secured their various Biosafety Permits for Field
Testing classifies Bt talong as a Regulated article in relation to Section 2-A thereof.
27.

A Regulated article is defined as any of the organisms listed in Section

2-A, but excludes those delisted in accordance with Section 14.

28.

Section 2 states:

Section 2
Coverage
A. Scope This Order 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 agent belongs to any of the genera or taxa classified by BPI
as meeting the definition of plant test 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.
B. Exceptions. This Order shall not apply to the contained use of a
regulated article, which is within the regulatory supervision of
NBCP.

19

29.

In Bt talong, the process of genetic engineering involves the insertion of a

genetic cassette containing genes from the bacterium Bacillus thuringiensis (Bt) into
the DNA of the eggplant so that it produces a protein called Cry1Ac, which is a toxin.
This has been admitted by Respondent Project Proponents, thus:

The use of the crystal toxin genes from Bacillus

thuringiensis (Bt) to engineer resistance to biting and chewing
insects has been one of the best success stories of bioengineered
crops. Genetic resistance is obtained by incorporating Bt genes into
the plant genome to produce the protein toxic to the target insect
pests. Bt Cry1Ac protein is highly specific to lepidopteran larvae
such as eggplant fruit and shoot borer (EFSB). 10

30.

From the foregoing, Bt talong unquestionably is an altered plant produced

through the use of modern biotechnology or genetic engineering. In short, Bt talong is a

Regulated Article under DAO 08-2002.
31.

As a Regulated Article, Bt talong is presumed harmful to human health

and the environment and as such must undergo risk assessment pursuant to Section 3A of DAO 08-2002 which states:

Section 3
Risk Assessment
A. Principles of Risk Assessment - No regulated article shall be
allowed to be imported or released into the environment without
the conduct of a risk assessment performed in accordance with
this Order. The following principles shall be followed when
performing a risk assessment to determine whether a regulated
article poses significant risks to human health and the environment:
1. The risk assessment 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 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.

10

Please see Annex D, Respondents Field Trial Proposal.

20

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.
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 condition.
4. Risk assessment 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.
5. If new information on the regulated article and its effects on
human health and the environment becomes available, the risk
assessment shall be readdressed to determine whether the risk has
changed or whether there is a need to amend the risk management
strategies accordingly. (Emphasis supplied)
32.

Pursuant thereto, Section 4 of DAO 08-2002 requires the appointment of a

Responsible Officer who shall ensure that all appropriate measures are taken to
prevent significant risks to human health and the environment arising from the
importation or release into the environment of the regulated article.
33.

It is clear from the foregoing regulation of the Department of Agriculture

that any Regulated Article such as the Bt talong and its field trials is presumed to
significantly affect the quality of the environment so as to subject it to the
requirements of the PEISS of Respondent DENR-EMB.
34.

The fact that the Project Proponents already secured a Biosafety Permit

from Respondent BPI does not excuse it from securing an environmental clearance from
Respondent DENR-EMB.

21

Safety and Environmental Hazards of Bt talong

35.

More than the presumption under the Department of Agricultures DAO

08-2002, there is no independent, peer reviewed study on the safety of Bt talong for
human consumption and the environment.

Health hazards of Bt talong11

36.

In their Public Information Sheet for Field Testing (Annex C), the Project

Proponents made the following representation:

b) Potential Risks
The FSBR is substantially equivalent and is as safe as conventional/nonmodified eggplant, except for the insect resistance trait. Experience with
the use of Bt corn in country provide evidence of the relative safety of
biotech crops to the environment. (Emphasis supplied)

37.

In essence, what the Project Proponents are saying is that since Bt corn is

safe, then Bt talong must also be safe.

The World Health Organization, in its 20 Questions on Genetically Modified Foods

(http://www.who.int/foodsafety/publications/biotech/20questions/en/) has identified three main
issued of concern for human health, namely: 1) Allergenicity or the tendencies to provoke allergic
reactions; 2) Gene transfer from GM foods to cells of the body or to bacteria in the gastrointestinal tract
would cause concern if the transferred genetic material adversely affects human health. This would be
particularly relevant if antibiotic resistance gene, used in creating GMOs, were to be transferred.
Although the probability of transfer is low, the use of technology without antibiotic resistance genes has
been encouraged by a recent FAO/WHO expert panel; and 3) Outcrossing or the movement of genes
from GM plants into conventional crops or related species in the wild (referred to as outcrossing), as
well as the mixing of crops derived from conventional seeds with those grown using GM crops, may have
an indirect effect on food safety and food security. This risk is real, as was shown when traces of a maize
type which was only approved for feed use appeared in maize products for human consumption in the
United States of America.
11

22

38.

As mentioned earlier, the Bt talong uses a gene that produces the Cry1Ac

protein as a toxin. It is important to note that there are no commercial food crops with
this type of Bt gene.
39.

It is different to Cry1Ab (as used in genetically modified corn) in terms of

its food safety. Thus, there is no history of safe use of Cry1Acthe gene used in Bt
talong.
40.

At present, biotechnology companies rely on the concept of substantial

equivalence to demonstrate the safety of genetically engineered foods.

40.1.

The concept was developed by the Organization of

Economic Cooperation and Development (OECD) in 1991.

40.2.

In this concept, the overall chemical composition of the

genetically engineered food is compared to an equivalent conventional

food. If there is no significant health and nutritional content differences
between the two, the GE plant is considered to be safe.

40.3.

The MAHYCO seed company has tested its Bt eggplant in

the same way.

41.

However, substantial equivalence is a highly contested paradigm. Erik

Millstone (University of Sussex), Eric Brunner (UC London) and Sue Mayer
(GeneWatch UK)12 argued that the concept of substantial equivalence was pseudoscientific, and that: [T]he biotechnology companies wanted government regulators to
help persuade consumers that their products were safe, yet they also wanted the
regulatory hurdles to be set as low as possible. Governments wanted an approach to the

12

Beyond 'substantial equivalence'. Nature. 1999 October 7;401(6753):525-6

23

regulation of GM foods that could be agreed internationally, and that would not inhibit
the development of their domestic biotechnology companies. The concept of substantial
equivalence has never been properly defined; the degree of difference between a natural
food and its GM alternative before its 'substance' ceases to be acceptably 'equivalent' is
not defined anywhere. It is exactly this vagueness which makes the concept useful to
the bio-technology industry but unacceptable to the consumer. Scientists from the
United States National Academy of Science and the Royal Society of Canada and the
Medical Research Council (UK) pointed out that a genetically engineered food may not
only be substantially equivalent, but effectively almost completely identical with its
natural counterpart and still contain an unexpected toxic substance not tested for
despite passing Substantial Equivalence requirements.13
42.

A leading Filipino environmental scientist who is also a former member of

the National Committee on Biosafety of the Philippines and a former Undersecretary of

the Department of Environment and Natural Resources, Dr. Ben S. Malayang III, in his
affidavit14 expressed his concerns about the adequacy of biosafety measures and
protocols in the country.

42.1.

Dr.

Malayang

is

former

dean

of

the

College

of

Environmental Sciences and Management of the University of the

Philippines in Los Banos and currently the president of Siliman
University.

Scientists and scientist organizations rejecting the principle of Substantial Equivalence Physicians and
Scientists
for
Responsible
Application
of
Science
and
Technology
as
cited
in
http://en.wikipedia.org/wiki/Substantial_equivalence
14 Please see Annex E.
13

24

43.

Further, the Project Proponents and by extension Respondent BPI and

FPA, rely heavily on the Maharashtra Hybrid Seed Company (MAHYCO) Dossier.
Project Proponents Field Trial Proposal (Annex D) states:

The Maharashtra Hybrid Seed Company (MAHYCO) of India

developed a highly resistant transgenic eggplant event (EE-1), which has
been conventionally bred to produce several MAHYCO hybrids. The
MAHYCO hybrids containing the EE-1 event have already completed
several seasons of biosafety risk assessments under multi-location and
large scale field trials asll over India. Food and feed safety assessments of
MAHYCO event, EE-1 were conducted by internationally-accredited GLP
laboratories. The results point to the following conclusions: (1) EFSB is
effectively controlled by MAHYCOs eggplant EE-1 event containing the
Bt cry1Ac transgene; and (2) biosafety and food/feed safety studies
conducted to-date show no material differences between the EE-1 Bt
eggplant
and
its
non-Bt
counterparts1
(http://www.envfor.nic.in/divisions/csurv/geac/information_brinjal.ht
m).15

44.

It is unacceptable that in applying for field testing of Bt talong,

Respondents relied completely on the crop developers studies and disregarded the
unique risks of Bt talong technology. Said Respondents complete reliance on the
MAHYCO Dossier is extremely misguided and gravely irresponsible
45.

Contrary to the foregoing safety claims, the said MAHYCO Dossier was

found utterly inadequate as a scientific evidence of the safety of Bt talong in a

prominent review organized in February of 2011 by the research arm of the National
Academy of Sciences of the United States (NAS-US)16.

The NAS-US solicited

comment on the safety claims in the MAHYCO Dossier from 10 noted American
scientists, who are internationally acknowledged experts on the environmental risks of
transgenic crops. The review was made upon the request of his Honorable Shri Jairam

Field Trial Proposal (Annex D), pp. 3-4.

A copy of the review entitled Bt Brinjal Event EE1, Bt Brinjal: The scope and adequacy of the GEAC
environmental risk assessment by David A. Andow, @ August 2010, is hereto attached as Annex H.
15
16

25

Ramesh of the Ministry of Environment and Forests of India, the country where
MAHYCO is based.
46.

Among others, the conclusions of the review are that: a) the MAHYCO

dossier is inadequate to support the needed environmental risk assessment; b)

MAHYCOs food safety assessment does not comply with international standards; and
c) that MAHYCO relied on dubious scientific assumptions and disregarded real
environmental threats, to wit:

Conclusion 1 - Transgene characterization. a.1) The EE-1 Bt

transgene needs to be characterized more fully 1) to demonstrate that
there is only one transgene insert in Bt brinjal (brinjal is Indian name for
eggplant), 2) that the transgene expresses the intended Cry protein, 3) that
it does not interrupt a functioning plant gene, 4) to provide expression
levels in additional plant tissues, and 5) to demonstrate empirically that
the marker genes are not expressed in Bt brinjal.
The description of the transgene in Bt brinjal EE-1 is inadequate to
support environmental risk assessment. There is at least one transgene
incorporated into EE-1 Bt brinjal. It is not known that there is only one
transgene incorporated into the brinjal genome, that the one known
inserted transgene expresses the intended gene product, or that the
transgene does not interrupt a functional plant gene. Additional
transgenes, expression of an unintended product and interruption of a
plant gene could create additional environmental risks that have not been
considered or assessed.
Adequate characterization of expression of the transgene is
essential for effective environmental risk assessment. The description of
the chimeric Cry1A protein (Ccry1A) is inadequate for this purpose. The
amino acid sequence of Ccry1A as expressed in brinjal is needed. The
expression level of Ccry1A in pollen of Bt brinjal EE-1 is needed. There is
no need to use Cry1Ac, a protein that is not identical to Ccry1A, in any the
experiments used to support risk assessment, as was done in EC-II and the
Dossier. The expression level of the marker genes is assumed to be low.
This should be demonstrated empirically.
xxx
Conclusion 3- The EC-II assessment does not comply with scientific
aspects of transgene characterisation described in the Guideline for the

26

Conduct of Food Safety Assessment of Foods Derived from Recombinant- DNA

Plants (Codex Alimentarius17, 2003, CAC/GL 45-2003).
xxx
Conclusion 4- Most of the possible environmental risks of Bt brinjal
have not been adequately evaluated; this includes risks to local varieties of
brinjal and wild relatives, risks to biological diversity, and risk of
resistance evolution in BFSB.
This conclusion is supported by the following three conclusions.
Briefly, EC-II relied on dubious scientific assumptions, did not focus on
realistic environmental concerns, inadequately evaluated some important
environmental concerns, and ignored other real environmental concerns.18

47.

Despite the much vaunted completed several seasons of biosafety risks

assessments under multi-location and large scale field trials all over India, it is relevant
to note that on 9 February 2010 and faced with safety uncertainties, Jairam Ramesh,
then Minister of Environment of India, declared a moratorium on the commercial
approval of Bt brinjal in India, citing the need for further safety testing. Bt brinjal is the
equivalent of Bt talong in India.19
48.

Not only has the scrutiny of the MAHYCO data provided insight into the

substandard and extremely misleading interpretation of results, but it suggests that

urgent changes need to be made to ensure that future studies are properly conducted
and interpreted. As attested to by modern biology expert Dr. Pushpa M. Bhargava, who
is also the former and founder director of the Centre for Cellular and Molecular Biology

The Codex Alimentarius (Latin for "Book of Food") is a collection of internationally recognized
standards, codes of practice, guidelines and other recommendations relating to foods, food production
and food safety. Its texts are developed and maintained by the Codex Alimentarius Commission, a body
that was established in 1963 by the Food and Agriculture Organization of the United Nations (FAO) and
the World Health Organization (WHO). The Commission's main aims are stated as being to protect the
health of consumers and ensure fair practices in the international food trade. The Codex Alimentarius is
recognized by the World Trade Organization as an international reference point for the resolution of
disputes concerning food safety and consumer protection. According to the Bureau of Agriculture and
Fisheries Standards of the Philippines, at present, national microbiological standards for food have not
yet been established. Philippine food regulations are thus generally patterned after Codex Alimentarius
Commission guidelines as well as regulations established by the Food and Drug Administration of the
United States and similar regulatory bodies in other countries.
18 Pp. 2-3.
19 A copy of former Minister Rameshs Decision declaring said moratorium is hereto attached as Annex
J. See also http://moef.nic.in/downloads/public-information/minister_REPORT.pdf.
17

27

(CCMB), Hyderabad, India, which institution is widely regarded around the world as
one of the finest institutions in modern biology, at least 30 more tests are required to
assess the safety of genetically modified Bt talong20.

48.1.

As a background, Dr. Bhargava was the first one to use the

term genetic engineering in India in 1973.

48.2.

He was also instrumental in setting up the Department of

Biotechnology of the Government of India, which is authorized to take the

first step in the process of approval of genetically engineered or modified
products or organisms.

48.3.

He was the chairman of the first committee set up on genetic

engineering and molecular biology by the Science and Engineering

Research Council of the Department of Science and Technology of the
Government of India.

48.4.

With his over 60 years of research experience as a scientist, he

has held many important positions, both in the Government and in the
private sector, and received a large number of honours and awards.

48.5.

With his foregoing qualifications, he is being regarded as an

expert in the field of genetic engineering.

A copy of Dr. Bhargavas Affidavit, with the attached list of tests and analyses to be performed before
GMO may released in the environment, is hereto attached as Annex K.
20

28

49.

In addition to Dr. Bhargavas studies, in 2009, Professor Eric-Gilles

Seralini of the University of Caen, France and president of the Scientific Council of the
Committee for Independent Research and Information on Genetic Engineering (CRIIGEN),
released a critique, commissioned by Greenpeace, of Mahycos data submitted in
support of the application to grow and market genetically engineered (GE) Bt eggplant
in India. Professor Seralini found numerous clear significant differences that raise food
safety concerns and warrant further investigation.
50.

The work of Professor Seralini was cited by the Project Proponents in its

Field Trial Proposal as a footnote to the MAHYCO Dossier cited therein. The footnote
states:

French Scientist Prof. Gilles-Eric Seralini of (CRIIGEN), commissioned by

Greenpeace India, undertook an assessment of Mahycos dossier on toxicity tests
approved by the Indian regulatory authorities GEAC. His conclusions
contradicted the findings of Mahyco and GEAC assessment. For more detailed
discussion, please refer to Section X-I and cross-references.21

51.

Section X-I of the Field Trial Proposal has the following entry in relation to

the Seralini study, to wit:

I. General and Recent Issues Raised Against GM crops, Bt eggplant and Responses
Issues

Information/Findings

Cross
reference to
Appendices

xxx
2. Safety French Scientist Prof. Gilles-Eric Serallini of (CRIIGEN), Appendix
of
Bt commissioned by Greenpeace India, carried out an assessment 8(2); 8(3)
eggplant of Mahycos dossier on toxicity tests approved by the Indian
to
regulatory authorities GEAC (see Appendix 6, this proposal).
humans His key findings showed statistical significant differences
and
between group of animals fed GM and non-GM eggplant. The
animals differences were also reported by Mahyco but found them to
be within the range of variation shown by a set of reference
non-GM eggplant consumed in India. It should be noted that
21

Field Trial Proposal, p. 4.

29

he Bt eggplant paper was not published in a peer-reviewed

scientific journal

52.

In his Affidavit22, Prof. Seralini underscored the need for more testing

in order to obtain a reliable measure of the aforementioned risks the absence of which
was part of the justification for the moratorium on open field trials of Genetically
Modified Aubergine (Bt) in India.
53.

Said Prof. Seralini:

5. With my 20 years of experience in research as a scientist who has held

many important positions, both with the government and in the private
sector, I certify that the release in the environment of agricultural GMOs,
including open trials, may lead to numerous adverse effects on human
and animal health, as well as on agriculture and environment. As the
majority of world experts in this field who do not have a conflict of
interest, I believe that more testing must be done in order to obtain a
reliable measure of the aforementioned risks, and that the decision as to
carry out open field trials must be based on an unbiased evaluation of the
results of those tests.
6. Because of the aforementioned reasons, such as the lack of appropriate
testing and the probability of human and animal health hazard, as well as
the risks for agriculture and the environment, the Ministry of
Environment and Forests of India imposed, among others, an indefinite
moratorium in February 2010 on the cultivation in open fields of
Genetically Modified Aubergine (Bt) in India.23

54.

From the Philippines, and corroborating Professor Seralinis conclusion,

human toxicologists Dr. Wency Kiat of St. Lukes Hospital in the Philippines and Dr.
Romeo Quijano of the University of the Philippines, Diliman stated in their joint
affidavit24 that the altered condition of rats symptomatically indicate hazards for human
health. They summarized in table 1 below the potential implications for human health
A copy of the Affidavit dated 19-10-2011 is attached hereto as Annex L.
At p. 2
24 A copy of Dr. Wency Kiat and Dr. Romeo Quijanos Joint-Affidavit is hereto attached as Annex M.
22
23

30

of the indicators in rats based on table 2 that shows the results of statistical analysis of
raw data from MAHYCOs 90-day study.

Table 1
Indicator
Elevated white blood
counts from chronic
exposure
Higher aspartate
aminotransferase in
blood
from acute exposure
Elevated bilirubin in
blood
Altered plasma
Acetylcholinesterase
Smaller ovaries
Enlarged spleens

What it might indicate

Inflammation, allergy,
tissue injury

Liver complications or
damage

Reproductive toxicity
Chronic infections or
blood cancer

Table 2. Results of statistical analysis of raw data from the 90-day study

Test group mean values females/males/total

Organ weight
ovaries (g)
Females only)
Organ weight
spleen (g)
females/males/tot
al
Organ weight
kidneys (g)
females/males/tot
al
Total white blood
cells
(x103/cmm)
females/males/tot
al

Vehicle control
group (G1)

non-transgenic
brinjal (G2)

Bt brinjal group
(G4)

0.11**

0.10**

0.06

0.86/1.34/1.10

0.81*/1.20/1.00

1.02/1.19/1.11

1.42/1.34/1.38

1.49/1.20/1.34

1.48/1.19/1.34

9.3*/11.1/10.2*

9.3*/10.3/9.8*

14.0/12.6/13.3

31

Aspartate
134.5/189.5/162.0
152.7/166.0/159.4
aminotransferase
(AST)
females/males/tot
al
Plasma
591.6/604.0**/597.8* 731.0/753.2/742.1
acetylcholinesterase
*
(IU/L)
females/males/tot
al
RBC
299.9/388.3/344.1
332.1/390.1/361.1
acetylcholinesterase
(IU/L)
females/males/tot
al
Total
891.4/992.4/941.9* 1063.1/1143.3/1103.
acetylcholinesterase
2
(IU/L)
females/males/tot
al
Bilirubin (mg/dl)
.58**/.51/.54*
.60**/.52/.56**
females/males/tot
al
*Statistically significant difference from G IV at p < 0.05
**Statistically significant difference from G IV at p < 0.01

55.

151.7/156.5/154.1

875.0/902.6/888.8

265.7/335.6/300.6

1140.7/1238.2/1189.
4

.81/.52/.66

Dr. Angelina P. Galang, Phd. also attested that the harmful effects of

GMOs has been shown when laboratory animals fed with GMOs showed
abnormalities, as did their offspring and offspring of their offspring25. She further
testified that epidemics among humans who ate GMO-containing food have occurred.
They experienced pain, weakness, nausea, rashes, etc. Noteworthy are those in the U.S.
involving genetically modified Starlink corn used in nachos and tortillas in fast food
outlets and L-tryptophan, a drug that helps induce sleep made by Showa Denko which
used genetically modified bacteria in its manufacturing process. The latter caused more
than a thousand deaths. These epidemics could directly be linked to GMOs because
they were acute, involved large numbers of people and were reported to the Center for
Disease Control right away.26 Finally, she noted that statistics also show that soya

25
26

A copy of Dr. Galangs Affidavit is attached hereto as Annex N.

Ibid. at p. 2.

32

allergies have risen 50% since the widespread introduction of GM soya27. There are
also several independent studies28 that show signs of toxicity in genetically engineered
eggplant and other crops.

Environmental risks of Bt talong29

56.

With regard to the environmental risks of Bt talong, Dr. Charito Medina,

a Filipino expert in ecology, environmental science, and natural resources management,

attested30 that In its formulated natural form, Bt has been used by farmers practicing organic
and other sustainable growing methods since the 1950s as a spray to kill pests without damaging
non-targeted insects or other wildlife. However, the Bt toxins produced by insect resistant crops
are significantly different. Natural Bt sprays have little effect on non-target organisms because
the bacterial pro-toxin is in an inactive state and only becomes toxic when processed 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 it 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.31
57.

Dr. Medina added that Bt proteins from natural Bt sprays degrade

relatively quickly in the field as a result of ultraviolet light and lose most toxic activity
Ibid. at p. 2.
Please see Annexes K to K-13
29 WHO 20 Questions on GM Foods, supra, note 9, has identified the following environmental concerns:
the capability of the GMO to escape and potentially introduce the engineered genes into wild
populations; the persistence of the gene after the GMO has been harvested; the susceptibility of nontarget organisms (e.g. insects which are not pests) to the gene product; the stability of the gene; the
reduction in the spectrum of other plants including loss of biodiversity; and increased use of chemicals in
agriculture. The environmental safety aspects of GM crops vary considerably according to local
conditions.
Current investigations focus on: the potentially detrimental effect on beneficial insects or a faster
induction of resistant insects; the potential generation of new plant pathogens; the potential detrimental
consequences for plant biodiversity and wildlife, and a decreased use of the important practice of crop
rotation in certain local situations; and the movement of herbicide resistance genes to other plants.
30 The Affidavit of Dr. Medina is hereto attached as Annex P.
31 Ibid. at p. 2.
27
28

33

within several days to two weeks after application. In Bt crops, however, the Bt toxin is
produced by the internal system of the plant thus non-degradable by mere exposure to
sunlight and generated throughout the entire lifespan of the plant32.
58.

The Bt talong can also affect the environment by harming important or

beneficial insects directly or indirectly, according to Dr. Medina. GE 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.33
58.1.

The Bt toxins in GE eggplant are specifically toxic to

Lepidoptera (butterflies and moths), but not all of these are pests. The
potential for GE Bt crops to be directly toxic to non-target species was
highlighted by research in the USA when it was demonstrated that pollen
from one type of GE Bt maize (Bt176) was toxic to the much-loved
Monarch butterfly.34 More recently, it has been shown that long-term
exposure even to relatively low levels of Bt in maize pollen causes adverse
effects on larvae of the Monarch butterfly. Importantly, these risks to nontarget species were not identified until after commercialization of Bt
maize, and required several years of research for the long-term
implications to be realized. These harmful effects of GMO plants on the
environment were also explained and attested by Dr. Galang in her
affidavit, thus:
GMO plants could also pose serious threat on the
environment. Butterflies and other beneficial insects may be
affected by GMOs, just as the intended pests are killed. A
Ibid. at p. 2
Ibid at p. 2.
34 Losey J. E, Raynor, L. & Cater, M.E. (1999). Transgenic pollen harms monarch larvae. Nature 399: 214
32
33

34

population of monarch butterflies was impacted when their

caterpillars fed on milkweed plants on which GMO corn
pollen had settled35

58.2.

As regards its indirect effects, data from Bt Cry1Ab maize

indicate that the beneficial insects, lacewings, have increased mortality

when fed on larvae of a maize pest, the corn borer, which had been fed on
Bt36. Numbers of beneficial ladybeetles were found to be lower in Bt maize
plots than in non-Bt maize. Ladybeetles feed on many food sources
including on aphids, pollen, European corn borer eggs and other pest
eggs37, so have several routes of exposure to the Bt toxin. Non-target,
beneficial species that may feed on eggplant could be similarly affected.

58.3.

Changes in populations of both pests and of natural enemies

have been documented in Bt cotton. Data from China show that use of Bt
crops can exacerbate populations of other secondary pests, including
aphids, lygus bug, whitefly, Carmine spider mite and thrips. Studies there
have shown significant reductions in populations of the beneficial
parasites Microplitis sp. (88.9% reduction) and Campoletis chloridae (79.2%
reduction) in Bt cotton fields.38

59.

The evolution of resistance to Bt crops is a real risk and is treated as such

in ecological science throughout the world, Dr. Medina emphasized in his affidavit.
Galang Affidavit, supra, at p. 2.
Hillbeck, A., Baumgartner, M., Fried, P.M. & Bigler, F. 1998. Effects of transgenic Bacillus thuringiensis
corn-fed prey on mortality and development time of immature Chrysoperla carnea (Neuroptera:
Chrysopidae). Environmental Entomology 27: 480-487; Hillbeck, A., Moar, W.J., Pusztai-Carey, M.,
Filippini, A. & Bigler, F. 1998. Toxicity of Bacillus
37 Wold, S.J., Burkness E.C., Hutchinson, W.D.,Venette, R.C. 2001. In-field monitoring of beneficial insect
populations in transgenic corn expressing a Bacillus thuringensis toxin. Journal of Entomological Science
36: 177-187
38 Cui, J. and J. Xia. 1999. Effects of transgenic Bt cotton on the population dynamics of natural enemies.
Acta Gossypii Sinica 11: 84-91
35
36

35

On one hand, any pest control practice will select for resistant individuals in the target
pest population. If enough individuals become resistant then the pest control fails. The
pest becomes abundant and affects crops yield. On the other hand, granting that the
pest control practice is successful, it may also simply swap one pest for another. 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 a problem with Bt
maize39.
60.

Similarly, Dr. Angelina P. Galang attested that studies show that

contrary to claims by GMO manufacturers that the built-in pesticides will decrease the
use of chemicals, the latter has actually increased the use of said chemicals40.
61.

Dr. Medina further attested in his affidavit that it is a common

knowledge that eggplant is 48% insect pollinated thereby any field release or field
testing of genetically modified Bt talong will eventually lead to the contamination of
non-genetically modified eggplant varieties. He added that insects, particularly
honey bees as pollinators, can fly as far as four kilometers and this is the potential
contamination area. Therefore, the 200 meters perimeter pollen trap area in the confined
field testing set by the Bureau of Plant Industry is not sufficient to stop contamination of
nearby eggplant during the Bt eggplant field testing phase. And once contamination
occurs, genetic cleanup of eggplant or any other plant is impossible.41
62.

Reiterating one of the conclusions of the US-NAS review, Dr. Medina

stressed in his affidavit:

It is highly likely that cultivated eggplant (scientific name: Solanum

melongena), including local varieties and landraces can cross breed with
feral populations of S. melongena, and it is possible that cultivated varieties
can revert to wild phenotypes and establish feral populations. Therefore,
Medina Affidavit, supra. at p. 3.
Galang Affidavit, supra. at p. 3.
41 Medina Affidavit, supra. at p. 3
39
40

36

the possible effects of intra-specific gene flow from Bt talong to other

varieties and populations of eggplant should be examined. In addition,
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 the MAHYCO Dossier, there is
insufficient evidence that 1) wild or weedy relatives of eggplant would
not obtain a fitness benefit from a Bt transgene should gene flow occur; 2)
wild relatives of eggplant will not suffer reduced genetic diversity from
the introgression of the Bt transgene; and 3) non-GM eggplant will remain
uncontaminated by Bt eggplant. All of these risks need to be evaluated.42

63.

The several independent studies and critical reviews mentioned in the

preceding paragraphs are only among numerous scientific literature and initiatives that
prove the health, environmental and other hazards, and show serious scientific
uncertainties over the safety of Bt talong and its field trial. When Respondents Project
Proponents fully accepted the MAHYCO safety assurance without consideration of the
rich scientific literature and initiatives unfavorable to Bt talong field testing, they acted
without the honest curiosity of a scientific mind. When they claimed that they have
complied with regulatory requirements that, as have been pointed out above, do not
precisely and adequately assess the numerous risks of Bt talong , they betrayed the
noble purpose of science, the public trust that characterize their offices, and the
environmental rights of the Petitioners in particular and of the Filipino people in
general.
64.

Given the foregoing, there appears to be no clear, definitive and

authoritative study on the safety of Bt talong for human consumption and the
environment. At the very least, the conflicting claims should lead the Respondent
government agencies to apply the precautionary principle before any field trial is
conducted.

42

Ibid. at p. 3.

37

BT TALONG FIELD TRIAL DID NOT

COMPLY WITH SECTIONS 26 & 27
OF THE LOCAL GOVERNMENT CODE

65.

Given the foregoing health and environmental risks and uncertainties, it is

incumbent upon the Project proponents to have complied with the requirements of
Section 26 and 27 of the Local Government Code.
66.

The aforesaid provisions are quoted hereunder in full, thus:

Section 26. Duty of National Government Agencies in the Maintenance

of Ecological Balance. - It shall be the duty of every national agency or
government-owned or controlled corporation authorized or involved in
the planning and implementation of any project or program that may
cause pollution, climatic change, depletion of non-renewable resources,
loss of crop land, rangeland, or forest cover and extinction of animal or
plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the
goals and objectives of the project or program, its impact upon the people
and the community in terms of environmental or ecological balance, and
the measures that will be undertaken to prevent or minimize the adverse
effects thereof.
Section 27. Prior Consultations Required. - No project or program
shall be implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution.

67.

In order to call for the application of the foregoing provisions, the project

or program must involve possible pollution, climatic change, depletion of nonrenewable resources, loss of crop land, rangeland, or forest cover and extinction of
animal or plant species.
68.

Outcrossing is essentially the pollution of the local biodiversity by the

genetically modified crops such as the Bt talong. There is also the very real possibility of
the loss of non-GM crop species as the open field testing of the GM crops may result to

38

cross pollination and contamination of these non-GM crops and subsequent extinction
of these species in the local environment.
69.

The detrimental and deleterious effects of GM crops to non-target

organisms such as the Monarch butterflies, moth, ladybeetles and lacewings, may also
result to the extinction of these animal species.
70.

The very real risk of increased use of and dependence on herbicides has

been acknowledge by the World Health Organization as a cause for concern, thus:

Q18. Why are certain groups concerned about the growing

influence of the chemical industry on agriculture?
Certain groups are concerned about what they consider to be an
undesirable level of control of seed markets by a few chemical companies.
Sustainable agriculture and biodiversity benefit most from the use of a
rich variety of crops, both in terms of good crop protection practices as
well as from the perspective of society at large and the values attached to
food. These groups fear that as a result of the interest of the chemical
industry in seed markets, the range of varieties used by farmers may be
reduced mainly to GM crops. This would impact on the food basket of a
society as well as in the long run on crop protection (for example, with the
development of resistance against insect pests and tolerance of certain
herbicides). The exclusive use of herbicide-tolerant GM crops would also
make the farmer dependent on these chemicals. These groups fear a
dominant position of the chemical industry in agricultural development, a
trend which they do not consider to be sustainable.43

71.

Owing to the novelty of the technology used as well as the fact that no

long-term, comprehensive and extensive study has been done with respect to Bt talong,
there is no assurance that in the long term and as shown in the harmful effect of Bt
maize on the Monarch Butterflies, this technology will not affect or produce harmful
effects on the crop lands and range lands or other animal or plant species.
72.

Given the foregoing, there exist no doubt as to the applicability of Sections

26 and 27 in the case of Bt talong field testing. As shown, however, in the case of

43

See note 29.

39

Pangasugan, Baybay, Leyte, in Santa Barbara, Iloilo and Davao City, no public
consultations were done.44
73.

Even in Bay, Laguna, a random survey conducted by Petitioner

Greenpeace in the immediate vicinity where Bt talong field trial was being conducted
showed that the inhabitants expressed lack of knowledge about Bt talong and its field
testing in their locality.45
74.

The consent of the local government units in the aforesaid locations was

likewise not obtained. On the contrary, resolutions ordering the suspension and
declaring their opposition to the Bt talong field testing were passed by the respective
sanggunians of Pangasugan, Baybay, Leyte and Santa Barbara, Iloilo.46
75.

The question of the applicability of Sections 26 and 27 of the Local

Government Code is already a settled matter under Philippine jurisprudence. The case
of Province of Rizal vs. Executive Secretary47 reiterated the Courts interpretation of the
said provisions in the earlier cases of Lina vs. Pano48 and Bangus Fry Fisherfolk vs.
Lanzanas49 and applied the same to the case of the San Mateo dumpsite. The ruling
states in part thus:

Contrary to the averment of the respondents, Proclamation No.

635, which was passed on 28 August 1995, is subject to the provisions of
the Local Government Code, which was approved four years earlier, on 10
October 1991.
Section 2(c) of the said law declares that it is the policy of the state
to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental
and people's organizations, and other concerned sectors of the community
before any project or program is implemented in their respective
jurisdictions. Likewise, Section 27 requires prior consultations before a

See pars. 13 to 15, this Petition.

Please see Annexes R up to R-9, which consist of the answers of the persons on the said survey
conducted by Greenpeace.
46 See note 44.
47 G.R. No. 129546, 13 December 2005
48 G.R. No. 129093, 30 August 2001
49 G.R. No. 131442. July 10, 2003
44
45

40

program shall be implemented by government authorities and the prior

approval of the sanggunian is obtained.
xxx
The municipal mayors acted within the scope of their powers, and
were in fact fulfilling their mandate, when they did this. Section 16 allows
every local government unit to exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare, which
involve, among other things, promot(ing) health and safety, enhance(ing)
the right of the people to a balanced ecology, and preserv(ing) the comfort
and convenience of their inhabitants.
In Lina , Jr. v. Pao we held that Section 2 (c), requiring
consultations with the appropriate local government units, should apply
to national government projects affecting the environmental or ecological
balance of the particular community implementing the project. Rejecting
the petitioners contention that Sections 2(c) and 27 of the Local
Government Code applied mandatorily in the setting up of lotto outlets
around the country, we held that:
From a careful reading of said provisions, we find that
these apply only to national programs and/or projects
which are to be implemented in a particular local
community. Lotto is neither a program nor a project of the
national government, but of a charitable institution, the
PCSO. Though sanctioned by the national government, it is
far fetched to say that lotto falls within the contemplation of
Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction
with Section 26 thereof. Section 26 reads:
SECTION 26.
Duty of National
Government Agencies in the Maintenance of
Ecological Balance. It shall be the duty of every
national agency or government-owned or
controlled corporation authorizing or involved
in the planning and implementation of any
project or program that may cause pollution,
climatic change, depletion of non-renewable
resources, loss of crop land, range-land, or
forest cover, and extinction of animal or plant
species, to consult with the local government
units, nongovernmental organizations, and
other sectors concerned and explain the goals
and objectives of the project or program, its
impact upon the people and the community in
terms of environmental or ecological balance,
and the measures that will be undertaken to
prevent or minimize the adverse effects
thereof.
Thus, the projects and programs mentioned in Section 27 should
be interpreted to mean projects and programs whose effects are among
those enumerated in Section 26 and 27, to wit, those that: (1) may cause
pollution; (2) may bring about climatic change; (3) may cause the
41

depletion of non-renewable resources; (4) may result in loss of crop

land, range-land, or forest cover; (5) may eradicate certain animal or
plant species from the face of the planet; and (6) other projects or
programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented. Obviously,
none of these effects will be produced by the introduction of lotto in the
province of Laguna. (Emphasis supplied)

76.

The Supreme Court concluded in the said case that:

Under the Local Government Code, therefore, two requisites must

be met before a national project that affects the environmental and
ecological balance of local communities can be implemented: prior
consultation with the affected local communities, and prior approval of the
project by the appropriate sanggunian. Absent either of these mandatory
requirements, the projects implementation is illegal.

77.

In this case, all the foregoing requirements are not present.

78.

There is no question that Respondents DENR-EMB, BPI and FPA are

national government agencies involved in the Bt talong field trials. Pursuant to DAO
No. 8-2002, the Bt talong filed trials is a project that significantly affects the quality of
the environment, involves pollution of local biodiversity and affects the ecological
balance.
79.

Despite its possible ramifications on the environment, no prior

consultations were done with the affected local communities.

80.

Neither was the consent of the affected sanggunians obtained. On the

contrary, the affected sanggunians even expressed their opposition to the proposed
field trials.
81.

More importantly, however, the potential dissemination of Bt talong

through outcrossing poses a risk not only to the communities where field testing is
being done. There is a real risk that this can spread throughout the country even in the

42

provinces, such as Negros, Davao City and Bohol that have standing resolutions or
ordinances against genetically modified organisms.50
82.

Given the failure to observe the foregoing mandatory requirements, the Bt

talong field trials are illegal and should be immediately stopped.

ON THE WRIT OF KALIKASAN

CONSTITUTIONAL PROVISIONS,
ENVIRONMENTAL PRINCIPLES,
RULES AND REGULATIONS
TRANSGRESSED

83.

Respondents act of conducting a multi-location field trial of Bt talong

violates the following constitutional provisions, environmental principles, rules and

regulations:
83.1.

Sections 15 and 16, Article II of the Philippine Constitution

providing for environmental and health rights;

83.2.

Section 7, Article III, Section 16, Article XIII, and Section 9,

Article XVI of the Philippine Constitution guaranteeing the public's right

to information on matters of public concern, right to participation, and
consumer protection;

83.3.

The Precautionary Principle of international environmental

law;

50

See Annex S.

43

83.4.

Executive Order No. 514 or the National Bio-safety

Framework of the Philippines; and,

83.5.

Department of Agriculture Administrative Order No. 08, series of

2002 or the Rules and Regulations on the Importation and Release into the
Environment of Plants and Plant Products Derived from the Use of Modern
Biotechnology.

The holding of multi-location field trials of

Bt talong, preparatory to its eventual
commercialization,
violates
the
environmental rights of the petitioners in
particular and of the Filipino people in
general as expressed in the Constitutional
rights to a balanced and healthful ecology,
and to health; and disregards the
precautionary principle that guides the
exercise of these environmental rights.

84.

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.

85.

In relation to this, Section 15 of the same Article provides:

Sec.15. The State shall protect and promote the right to health of
the people and instill health consciousness among them.

44

86.

In Oposa, et al. vs. Factoran, et al. (G.R. No. 101083 July 30, 1993), this High

Court announced that the right to a balanced and healthful ecology was not just an
empty rhetoric found in the Constitution:

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 the advancement of which may
even be said to predate all governments and constitutions.

87.

It declared that environmental rights are enforceable notwithstanding

whether they are constitutionally expressed because of their inception before

humankind and added that:

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.

88.

This High Court went further by emphasizing in Oposa that the right to a

balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment.
89.

To protect these constitutionally guaranteed environmental rights, this

High Court adopted the precautionary principle when it promulgated the Rules of
Procedure for Environmental Cases. In its annotation to the Rules, this High Court
explains that the adoption of precautionary principle as part of these Rules, specifically
45

relating to evidence, recognizes that exceptional cases may require its application. The inclusion
of a definition of this principle is an integral part of Part V, Rule on Evidence, in environmental
cases in order to ease the burden on the part of ordinary plaintiffs to prove their cause of action.
This High Court continues:

In its essence, the precautionary principle calls for the exercise of

caution in the face of risk and uncertainty. While the principle can be
applied in any setting in which risk and uncertainty are found, it has
evolved predominantly in and today remains most closely associated with
the environmental arena.
The Rules acknowledge the peculiar circumstances surrounding
environmental cases in that scientific evidence is usually insufficient,
inconclusive or uncertain and preliminary scientific evaluation indicates
that there are reasonable grounds for concern that there are potentially
dangerous effects on the environment, human, animal, or planet health

90.

For this reason, again this High Court points out in the annotation of the

Rules that the principle requires that those who have the means, knowledge, power, and
resources to take action to prevent or mitigate the harm to the environment or to act when
conclusively ascertained understanding by science is not yet available. In effect, the quantum of
evidence to prove potentially hazardous effects on the environment is relaxed and the burden is
shifted to proponents of an activity that may cause damage to the environment.
91.

The same principle of precaution is in line with the principles of balanced

and scientific approaches as stated in Executive Order No. 514 or the National Biosafety Framework of the Philippines, to wit:

Section 2.3. A Balanced Approach. A balance approach, which

recognizes both the potential benefits ad risks, shall guide the
implementation of the NBF. This shall be based on recognition that
modern biotechnology has significant potential for human well-being if
developed and used with adequate safety measures for the environment
and human health. Such approach recognizes both the potential benefits
and risks of modern biotechnology to human health, agricultural
productivity, food security, the livelihoods of the poor, biological
diversity and the environment;
46

Section 2.4. A Scientific Approach. The implementation of the NBF

shall be based on the best available science and knowledge. Such science
and knowledge shall be of the highest quality, multi-disciplinary, peerreviewed, and consistent with international standards as they evolve;
xxx
Section 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;

92.

The precautionary principle is a fundamental component of the concept

of ecologically sustainable development and has been defined in Principle 15 of the Rio
Declaration (1992)51:

Where there are threats of serious or irreversible environmental

damage, lack of full scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.

93.

It has been directly or impliedly applied or referred to in judicial decisions

in several countries such as those decided in Britain,52 India,53 Pakistan54 and New
Zealand55 and also refers to judgments of the International Court of Justice 56 and the
European Court of Justice57.

93.1.

In AP Pollution Control Board v. Nayudu, the Indian Supreme

Court applied the precautionary principle in considering a petition against

United Nations Conference on Environment and Development, Rio, 1992 (the "Rio Declaration").
R.v. Secretary of State for Trade and Industry Ex parte Duddridge and Others (Queens Bench Division, 4
October, 1994 (unreported)).
53AP Pollution Control Board v. Nayudu. Supreme Court of India SOL Case No. 53, 27 January 1999
(unreported).
54 Zia v. WAPDA. PLD 1994 Supreme Court 693.
55Greenpeace New Zealand Inc. v. Minister for Fisheries (High Court of New Zealand, CP 492/93, 27
November 1995, unreported).
56 The Danish Bees Case. Judgement of 3.12.1998 in case no. 67/97.
57 The Danube Dam Case. Hungary v. Slovakia (1998) 37 ILM 162, 204, 212 (see in particular the Separate
Opinion of Judge Weeramantry).
51
52

47

the development of certain hazardous industries. The Court held that "... it
is necessary that the party attempting to preserve the status quo by maintaining a
less-polluted state should not carry the burden or proof and the party who wants
to alter it, must bear this burden".58 .

93.2.

In Zia v. WAPDA59 The Supreme Court of Pakistan was

called upon to consider a challenge by local residents to the construction

of high voltage transmission lines in their locality. They argued that the
electro-magnetic radiation (EMR) emitted by the transmission lines
constituted a serious health hazard.

In deciding that the scientific

evidence in relation to the effects of exposure to EMR was inconclusive,

the Court applied the precautionary principle.

94.

E.O. No. 514 or the National Bio-safety Framework of the Philippines

explicitly affirms the application of the international environmental law principle of

precaution, thus:

Section 2.11 International Obligations and Cooperation. In

accordance with international law, the national bio-safety framework shall
be implemented in a manner consistent with and mutually supportive of
the international obligations of the Philippines, in particular its obligations
under international trade and environmental law. Multilateral, regional
and bilateral cooperation in implementing the NBF, in particular its
sections on capacity building and financial resources, shall be encouraged.

95.

The Bt talong field testing is a classic environmental case where scientific

evidence as to the health, environmental and socio-economic safety is insufficient,

inconclusive or uncertain and preliminary scientific evaluation indicates that there are

58See
59

note 53: Rao, J.

See note 54.

48

reasonable grounds for concern that there are potentially dangerous effects on the
environment and human health. However, despite the serious uncertainties and
concerns about Bt talong, Respondents Project Proponents continued with their field
trial in violation of the peoples rights to a balanced and healthful ecology and to health
in disregard of the precautionary principle.
96.

As shown in the discussions on Continuing Mandamus, there are at least

four major concerns about the safety of Bt talong and why it would be a serious mistake
to introduce it in the Philippines: a) its potential hazard to human health; b) the
potential environmental harm from the Bt Cry1Ac gene; c) it will certainly contaminate
and impact wild organisms and the eggplant biodiversity; and d) it will evoke
dissemination of mutant insects resistant to Bt.
97.

Those risks and uncertainties are enough justifications for the issuance of

the writ for the protection of our environment.

Respondents violated the Constitutional

right of the petitioners in particular and of
the Filipino people in general to be informed
on all matters of public concern, including
their rights to participation and to consumer
protection.

98.

Section 7, Article III and Section 16, Article XIII of the 1987 Constitution

guarantees the public's right to information on matters of public concern, and right to
participation.

98.1.

Section 7, Article III provides:

Sec. 7. The right of the people to information on matters of public

concern shall be recognized. Access to official records and documents, and
49

papers pertaining to official acts, transactions, or decisions as well as to

government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by
law.

98.2.

Section 16, Article XIII provides:

Sec. 16. The right of the people and their organizations to effective
and reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. The State shall, by law, facilitate
the establishment of adequate consultation mechanisms.

99.

In this case, due to the health, environmental and other hazards involved,

which makes it a matter of public concern, the people have the right to be informed of
the full consequences of conducting the Bt talong multi-location field testing in order
for them to intelligently participate in the decision-making on whether or not to allow
the said field testing.
100.

For the same justification mentioned in the preceding paragraph, public

access to information, consultation, and participation are provided in Executive Order

No. 514 and Administrative Order No. 08:

EO No. 514
Section 2.7 Transparency and Public Participation.Decision taken
under the NBF shall be arrived at in a transparent and participatory
manner. Biosafety issues are best handled with the participation of all
relevant stakeholders and organizations. They shall have appropriate
access to information and the opportunity to participate responsibly and
in accountable manner in biosafety decision-making processes.

101.

But in a random survey conducted by Greenpeace on July 21, 2011,

among the 10 households living immediately around the Bt talong experimental farm of

50

Respondents in Bay, Laguna, all of the surveyed persons expressed lack of knowledge
about Bt talong and its field testing in their locality60.
102.

In the resolution of Barangay Council of Pangasugan in Baybay, Leyte,

the Council complained about lack of information on the nature and uncertainties of the
Bt talong field testing in its barangay.61 The community has a right to be properly
informed about this project in order for them to safeguard their environment, lives, and
livelihoods, demanded Mr. Juanito Modina, former member of Sangguniang Bayan of
Baybay and barangay captain of Pangasugan in Leyte, in his affidavit62. In the same
affidavit, Mr. Modina, who is also a former member of the Visayas State University
Institutional Biosafety Committee from 2009-10, states that contrary to the promises of
the Biosafety Committee, the Bt talong field trial project did not undergo free, prior, and
informed consent procedures in the community
103.

It is interesting to note that in those instances wherein the people are

aware of the health, environmental and other hazards involved in the field testing of Bt
talong, the people registered their strong objection and prevented the field testing of Bt
talong in their area.

103.1. In Davao for example, in the affidavit of Mr. Leonardo R.

Avila III, the Officer-in-Charge of Davao Citys Agriculturist Office, he
cited a portion of the conclusion of the city governments report 63 that
states: The City Governments opposition against Bt eggplant projects
lack of public consultation and transparency should not be interpreted as
an upfront to the academic tradition or its rejection to the possibility of

Please see Annexes R up to R-9, which consist of the answers of the persons on the said survey
conducted by Greenpeace.
61 Annex F.
62 The Affidavit of Mr. Juanito Modina is hereto appended as Annex T.
63 The full report of the City Government of Davao dated 21 October 2011 signed by Mr. Leonardo R.
Avila III is appended hereto as Annex U.
60

51

improving the farmers yield, income and safety. The end does not justify
the means (or the process, as this case maybe). The consultation and
transparency are paramount to involving the adjacent communities and
the stakeholders, allowing them to air out their concerns, validated or not;
and to have direct exchange with the project proponents so that
understanding is established, and collectively, they can weigh both the
promises and pitfalls of the project. For the case of Bt talong, the City
Government found these two elements wanting--even if the proponent is
supported by national government-issued permits and certifications. The
City Government is not against scientific experiments or new technology
per se--since science is the most compelling factor that advances
humanity. Still, science should be tempered with cautious, social, and
political considerations.64

103.2. On 6 October 2010, the Sangguniang Bayan of Santa Barbara

in Iloilo passed a resolution65 suspending the field testing of Bt talong in
two barangays, citing the following reasons:
103.2.1.

The lack of public consultation on the

field trials, especially with farmers in the two barangays;

103.2.2.

The

absence

of

adequate

test

to

determine the effect of the field testing on friendly insects;

103.2.3.

The absence of comprehensive risk

assessment on the potential impacts of genetically modified

(GM) crops on human health and the environment;

64
65

Mr. Leonardo R. Avilas affidavit is hereto attached as Annex V.

Annex G.

52

103.2.4.

The possibility of cross pollination of the

Bt eggplants with the native species or variety of eggplants

and can cause serious threat to human health if the same are
sold to the local market.

103.3. On the other hand, the province of Bohol, though not a site
of the

field

testing, passed a resolution66 requesting Department of

Agriculture Secretary Proceso Alcala, through the BPI, to immediately

terminate the field testing and trading / commercialization of Bt talong in
the different areas in the country. The Sanggunian Panlalawigans call is
mainly anchored on the possibility that commercialization put at risks
Bohols GMO free status and contaminate native eggplant varieties with
GMO traits. The resolution further states that the country had recently
passed the Organic Agriculture Act while the province is in the process of
enacting its organic agriculture policy, Bt talong will violate organic
agriculture principles embodied in such policies.

103.3.1.

As a response to the Sanggunian

Panlalawigan (SP) resolution of Bohol, the BPI, in their letter

dated 17 November 2010, asked the SP to provide scientific
evidence of the dangers of Bt eggplant field testing as basis
for the immediate stoppage of the field testing as they have
yet to receive such evidence.
103.3.2.

On 29 December 2010, BPI suspended

the biosafety permits for field testing for UP Mindanao in

66

A copy of the Resolution passed by the province of Bohol is hereto attached as Annex W.

53

Davao City and Visayas State University in Baybay Leyte on

the grounds of non-posting of the PIS on the said sites.

104.

The above-cited instances only show the importance for the people to

fully know and understand the facts surrounding the matter respecting which they are
sought to be consulted, so that they could participate and intelligently give their
consent during the required public consultation thereof. That duty to provide the
people with the necessary and required information falls upon the Respondents.
Unfortunately, in the above-cited instances, the people became aware of the health,
environmental and socioeconomic consequences of Bt talong field testing not because
they were fully informed thereof by Respondents Project Proponents, but because they
went out of their way to research, learn and discover them for themselves.
105.

But can Respondents Project Proponents be expected to provide the

people with the necessary and required information regarding the consequences of Bt
talong field testing? The answer to this is in the negative. As heretofore discussed, in
proposing to conduct a multi-location field testing of Bt talong, Respondents Project
Proponents completely relied on the self-serving and inadequate, if not, misleading
MAHYCO Dossier, without conducting their own independent risk assessment. Thus,
whatever information that said Respondents would provide the people are only those
contained in the said MAHYCO Dossier.
106.

And true indeed, due to their complete reliance on the MAHYCO

Dossier, Respondents Project Proponents failed to fully inform the people regarding the
several competent scientific studies here and abroad, which all point out to the gross
inadequacy and inaccurateness of the MAHYCO Dossier, including the health,
environmental and other hazards involved in the field testing of Bt talong.

54

107.

Thus, whatever consultation said Respondents made, if there is any,

cannot be considered as valid due to their failure to fully provide the people with all the
necessary information on the health, environmental and socioeconomic hazards
involved in the field testing of Bt talong. In view of the foregoing, Respondents Project
Proponents should be made to stop from further conducting the field testing of Bt
talong due to their violation of the peoples constitutional rights to information and
public participation.
108.

It is also important to emphasize that the public information and

consultation requirements of Administrative Order No. 08 (Series 2002) entitled Rules

and Regulations on the Importation and Release into the Environment of Plants and Plant
Products Derived from the Use of Modern Biotechnology are inadequate to protect the
people from the potential harm that these genetically modified plants and genetically
modified organisms may cause human health and the environment, thus, the said AO
requirements fall short of Constitutional compliance. In fact, no less than a former
member of the National Committee on Bio-safety of the Philippines, Dr. Maglayang,
recommended that 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 country67. He added that biosafety must be based on
an enactment of Congress and open to challenge and adjudication against international
laws68 and that provisions must be made to make it a crime against humanity to
recklessly erode and weaken the genetic resources of our people69.
109.

He likewise suggested that being a highly biodiversity-rich country,

biosafety measures in the Philippines must be adopted using a 3-stage approach:

Annex H at p. 2.
Ibid.
69 Ibid.
67
68

55

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;
Stage 3: Apply the protocol with the highest rigor.70

110.

Consumers would not also be able to exercise their right to choose, if Bt

talong is commercialized, and also not be able to distinguish the conventional eggplant
from a contaminated variety in violation of Article XVI, Section 9, of our Constitution,
which provides that the State shall protect consumers from trade malpractice and
substandard and hazardous products. This concern is contained in the Joint-Affidavit of
Attorney Maria Paz Luna of Health Justice Network and Ms. Earth Philippines
Catherine Untalan71. Atty. Luna and Ms. Untalan even correctly observed that the
Philippines has no law or regulation on labeling of genetically modified organisms and
products derived from genetically modified organisms72.

Respondents violated even the basic

requirements of the already inadequate
regulatory provisions of Administrative
Order No. 08 and Executive Order No. 514

111.

As heretofore discussed, the provisions of A.O. 08 are not enough to

adequately protect the constitutional right of the people to a balanced and healthful
ecology since said regulation failed, among others, to anticipate the public implications

Ibid. at p. 1.
The Joint-Affidavit of Attorney Maria Paz Luna and Ms. Earth Philippines Catherine Untalan is hereto
attached as Annex X.
72 Ibid.
70
71

56

caused by the importation of GMOs in the Philippines. However, inadequate as it is, it is

sad to note that Respondents Project Proponents still failed to comply with the basic
requirements of A.O. 08.
112.

In their Field Trial Proposal for Bt talong73, Respondents Project

Proponents claimed that bioengineered eggplant presents a potential remedy for the chronic
problem of high infestation and high pesticide use. They proudly claimed that the use of the
crystal toxin genes from Bacillus thuringiensis (Bt) to engineer resistance to biting and chewing
insects has been one of the best success stories of bioengineered crops. They explained that
genetic resistance is obtained by incorporating Bt genes into the plant genome to produce the
protein toxic to the target insect pests and that Bt Cry 1Ac protein is highly specific to
lepidopteran larvae such as eggplant fruit and shoot borer (EFSB).
113.

Under Section 1 (BB) in relation to Section 2-A of A.O. 08, 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 is considered as a regulated article and therefore, a risk assessment must
be conducted before any proposal for its field testing may be approved.
114.

Considering that Respondent Project Proponents are claiming that the Bt

talong was produced through the use of modern biotechnology, which according to
them is bioengineering, there is already an admission from them that the Bt talong may
pose significant risks to human health and the environment based on available scientific and
technical information and therefore, they should strictly comply with the requirements
for its field testing. However, Respondents Project Proponents failed to conduct any
valid risk assessment before conducting the field trial of Bt talong as required in Section
3 (A) (1) of Administrative Order No. 08 of the Department of Agriculture.

73

Please see Annex B at p. 2.

57

115.

Although under said Section, the expert advice of, and guidelines

developed by, relevant international organizations shall be taken into account, it is

humbly submitted that an applicant, who desires to field test a regulated article, should
not rely solely on the same in complying with the risk assessment requirement. Rather,
an independent, rigid and scientific risk assessment should still be made by the
applicant, aside from the expert advice of, and guidelines developed by, relevant
international organizations. An independent, rigid, and scientific risk assessment is
especially important and necessary where the available risk assessment is provided by
the inherently biased corporate maker and promoter of the genetically modified crop, as
in the case of Bt talong.

115.1. Similar provision on risk assessment may also be found under

Section 5, paragraph 5.2, sub-paragraph 5.2.1 and 5.2.1.1 of Executive Order No.
514 which establishes the National Biosafety Framework for the Philippines.

116.

In this case, Respondents Project Proponents proudly announced in their

proposal for field testing of Bt talong that the MAHYCO hybrids containing the EE-1
event have already completed several seasons of biosafety risk assessments under multi-location
and large scale field trials all over India and that food and feed safety assessments of
MAHYCO event EE-1 were conducted by internationally-accredited GLP laboratories, thus:

C.
Bt eggplant - an effective and environmentally friendly
alternative strategy
xxx
The Maharashtra Hybrid Seed Company (MAHYCO) of India
developed a highly resistant transgenic Bt eggplant event (EE-1) which
has been conventionally bred to produce several MAHYCO hybrids. The
MAHYCO hybrids containing the EE-1 event have already completed
several seasons of biosafety risk assessments under multi-location and
large scale field trials all over India. Food and feed safety assessments of
MAHYCO event EE-1 were conducted by internationally-accredited GLP
58

laboratories. The results point to the following conclusions: (1) EFSB is

effectively controlled by MAHYCOs eggplant EE-1 event containing the
Bt cry1Ac transgene; and (2) biosafety and food/feed safety studies
conducting to-date show no material differences between the EE-1 Bt
eggplant and its non Bt counterparts.74

117.

MAHYCO, which is the agro-based company in India that developed the

Bt talong and therefore, has vested interest in its commercialization in the Philippines,
cannot be expected to declare with all honesty the possible health, environmental and
socioeconomic hazards that may arise in field testing the Bt talong. As already stated,
even India did not rely solely on the MAHYCO Dossier and a moratorium was declared
by the Ministry of Environment and Forests of India on the commercial approval of Bt
eggplant citing the need for its further safety testing.
118.

Several scientific studies, aside from the one commissioned by the

Ministry of Environment and Forests of India, also attested to the clear inadequacy of
the MAHYCO Dossier as a scientific evidence of the safety of Bt talong. These scientific
studies were cited during the exhaustive discussion made above on the health and
environmental hazards in the field testing of Bt talong. Thus, in order to save the
precious time of this Honorable Court, the said discussions shall no longer be repeated
herein and shall instead be adopted for the purpose of proving Respondents failure to
comply with the risk assessment requirement under A.O. 08.
119.

Clearly, due to its proven unreliability, Respondents Project Proponents

should not have relied completely on the MAHYCO Dossier and instead, should have
been responsible enough to conduct an independent, rigid and necessary scientific
assessment of health, environmental, and other risks, in order to be certain that the
holding of Bt talong field trial will not pose any threat to the constitutionally protected
rights of the people to a balanced and healthful ecology and to health.

74Ibid.

at pp. 2-3..

59

120.

Considering that Respondents Project Proponents failed to conduct a

valid risk assessment on Bt talong, which said Respondents admitted to be a product of

modern biotechnology and therefore, may pose significant risks to human health and the
environment based on available scientific and technical information, the continuous holding
of Bt talong field testing is completely illegal and should be stopped in order to protect
the peoples constitutional rights to a balanced and healthful ecology and to health.
121.

Moreover, Section 7 of A.O. 08 provides that:

No regulated article shall be released into the environment for

field testing unless (ii) the regulated article has been tested under
contained conditions in the Philippines. The containment of a regulated
article shall be reduced and the scale of release increased only if based on
the risk assessment of the contained use, the field testing of the regulated
article will pose no significant risks to human health and the environment.

122.

Contained use under Section 1 (E) of A.O. 08 means the use of a regulated

article for research and development inside a physical containment facility intended to limit its
contact with, and to provide for a high level of safety for, the general population and the
environment and which has been inspected and approved by NCBP
123.

In Respondents Project Proponents proposed risk management

measures, the recommended isolation distance of at least 200 meters from other eggplant
plantings will be followed75. Aside from that, the trial site for Bt talong shall be contained
by a fence, which in this case consists only of chicken wires. According to said
Respondents, this fence would ensure no access to the trial site by unauthorized
personnel76.
124.

Respondents Project Proponents proposed risk management measures

is certainly laughable, to say the least. As hereinbefore discussed, it is already a

common knowledge that eggplant is 48% insect pollinated. And although these chicken
75
76

Ibid. at p. 6.
Ibid.

60

wires may ensure no access to the trial site by unauthorized personnel, it will not definitely
prevent insects, like honey bees, from entering the trial site. Once these insects enter the
trial site, the possibility of Bt talong causing harm to these insects, which are not all
pests but may also include beneficial insects, cannot be denied and is already proven by
several competent scientific studies heretofore discussed.
125.

Moreover, since eggplant is insect pollinated, isolation distances will not

prevent contamination of other varieties of eggplant, as insects are already known to

travel long distances longer than the isolation distance of 200 meters. Thus, any field
trial of Bt talong will undoubtedly lead to contamination. Once contamination of
neighboring eggplant occurs, it will undoubtedly spread further. Eggplant contains
many seeds, and each seed produces many fruits. If just one seed from one Bt talong
contamination event is grown, it would multiply into tens or even hundreds of Bt
talong seeds from just one plant. If these seeds are themselves sown, they will grow into
Bt talong plants and again many Bt talong seeds will be produced77. Contamination of
this type was seen in genetically modified papaya in Thailand, which also occurred
from field trials78.
126.

Considering the absence of the necessary assessment; and in view of the

foregoing effects of Bt talong not only to other varieties and populations of eggplant but
also on non-target organisms, there is a compelling need for the proper assessment; and
an area and facilities to be used for field testing, that would not pose significant risks
to human health and environment; which both the assessment and facilities not
present in this case. Thus, considering the gross inadequacy of Respondents Project
Proponents physical containment facility, the field testing of Bt talong should be
stopped.

77
78

Please see Annex X.

See, http://www.gmcontaminationregister.org/

61

127.

There is no compliance by Respondents Project Proponents with relevant

data and information requirements for applying a permit for field testing. Section 4 (D)
of A.O. 08 provides that any application for a permit to conduct a field testing shall
contain a certification that the application contains all the information and views on which to
base a decision and includes relevant data and information known to the applicant which are
unfavorable to the application. As heretofore discussed, Respondent Project Proponents
cannot provide the government with the said relevant data and information, which are
unfavorable to their application, since they failed to conduct an independent risk
assessment of their own and instead, relied completely at the MAHYCO Dossier, which
is at best, self-serving and inadequate, if not, misleading.
128.

In addition to serious scientific uncertainties over the safety of Bt talong,

another crucial and relevant information that has not been reported by Respondents
Project Proponents is the socio-economic impact of Bt talong field testing.
129.

Respondents Project Proponents acknowledged in their Field Trial

Proposal the importance of eggplants in the Philippines. According to said

Respondents:

Eggplant, Solanum melongena L. is one of the most important,

inexpensive and popular vegetable crops grown and consumed in the
Philippines. Its value of production is estimated at 5.9 billion pesos, the
highest among the leading vegetables. In 2007, the estimated area under
eggplant cultivation is more than 20,000 ha, accounting for 28% of the total
volume of production of top vegetables in the country. Considered a
highly versatile and hardy crop, eggplant is grown all over the country
throughout the year. The crop is cultivated in small plots by
predominantly resource-limited farmers with average land holdings from
0.5-2.0 hectares. Eggplant is popularly consumed as cooked vegetable in
various ways. Eggplant is a good source of minerals and vitamins. It is
rich in total water and soluble sugar, free reducing sugars, amide protein
among other nutrients. Eggplant is also known to have medicinal
properties.79

79

Annex B at p. 2.

62

130.

However, despite the acknowledged importance of eggplant as a source

of income of our Filipino farmers, no analysis of the effects of Bt talong on the economic
security of Filipino farmers has been made or cited by Respondents Project Proponents.
131.

Farmers belonging to the organization Go Organic Davao City are

worried that Bt talong may increase risk of economic failure for small-scale resourcepoor farmers who are the majority in the Philippines80. They cited potentially higher
cost of production due to increased use of pesticides targeting resistant and other pests;
decline in yield due to insect resistance or loss of friendly insects; and decrease in sale
due to public skepticism over safety issues of transgenic crops.
132.

In the affidavit of Alter Trade Foundation, Inc. (ATFI), through its

executive director, Mr. Edwin Marthine O. Lopez81, it declared that in case GMOs are
allowed in the province of Negros and other provinces GMO contamination may be
irreversible and aggravate the poverty among small farmers in the province. He cited
in particular, his experience with trade of organic farming products in relation to GMOs
thus:

3. That in year 2000 CORDEV in partnership with Alter Trade Corporation

(ATC) and Alter Trade Japan supported the Kankaney tribal folk in Bgy.
Little Tadian at the boundary of the Municipality of Alfonso Lisa, Ifugao
and the municipality of Aurora in Isabela province, through an organic
corn project in Little Tadian for marketing to the Nippon Organic
Agricultural Producers Association;
4. That NOAPA bought the organic corn from the Kankaneys of Bgy.
Little Tadian from a small volume of 0.37 MT in 2001 to 260 MT in 2005,
that generated a gross income of P2.34 M yearly for the Little Tadian
community.
5. That NOAPA producers planned to increase the order to 350 MT in
2006 and even more in the following years, however, GMO corn from
Aurora, Isabela, started to enter and contaminate the surrounding cornproducing areas of the Kankaney community in Little Tadian;

Please see the Joint-Affidavit of farmer-members of Go Organic Davao City, which is hereto attached as
Annex V.
81 The affidavit of Mr. Edwin Marthine O. Lopez is hereto attached as Annex W.
80

63

6. That due to said contamination, the Japanese producers finally had to

give up the corn project in 2006 and shifted their assistance to organic
mango orchard and natural cattle raising;
7. That similar to the Little Tadian incident, the field testing of Bt talong
now threatens traditional vegetable farmers with the imminent danger of
contamination with GMO planting materials that affect local varieties of
eggplants and may affect other crop species;

133.

In her affidavit, Dr. Galang categorically stated that GMOs are also a

threat to the farmers lives and livelihoods. They have to buy GMO seeds produced by
high-tech laboratories abroad as well as the pesticides needed by these plants. Studies
show that contrary to claims by GMO manufacturers that the built-in pesticides will
decrease the use of chemicals, the latter has actually increased the use of said
chemicals.82
134.

Dr. Galang also added that our exports may also be compromised

because many countries now ban GMOs to some extent. Honey from Canada was
rejected by the European Union because it contained GMO-contaminated pollen. It is
not remote that the same thing may happen to our local varieties of eggplants, should
we allow the further field testing of Bt talong.83

CONCLUSION

135.

Former Environment Minister Ramesh of India said it accurately when he

declared a moratorium on the commercial approval of Bt eggplant in India: In such

matters, you cannot rely only on the scientists. Science does not function in a social or political
vacuum. There are political questions involved. There are social and health issues involved. So I
dont think you can take a pure scientific view on such matters. Concerns arose largely because

82
83

Please see Annex N at p. 2.

Ibid. at pp. 2-3.

64

in hybrids you have to buy seeds year after year. Also, because of the Monsanto connection, there
was wide public fear which would not have been the same had the public sector developed the
varieties. x x x It would appear that BT technology is a solution in search of a problem. I think it
should be the other way round. If I had been in-charge from day one, the first question I would
have asked is, Why Bt Brinjal? It does not seem right to me. There is no great shortage of
brinjal. There is no overriding food security issue.84
136.

The same statement of Mr. Ramesh may also be said in the Philippines

regarding the field testing of Bt talong. Thus, in view of the foregoing, the field testing
of Bt eggplant in the Philippines should be immediately stopped in order to protect the
constitutional rights of the Filipino people to a balanced and healthful ecology, to
health, information, participation, and consumer protection.
137.

The above-said concerns about Bt talong in particular, and the technology

of genetic engineering in general, and their handling in the country have reached such a
crisis that they can no longer be entrusted to Respondent regulatory bodies and
research foundations that are in conflict of interest; and are betraying their unique
mandate, the public trust, and the purpose of science. Hence, petitioners are seeking the
intervention of this honorable High Court with the firm belief that with its wise and
conscientious judgment, which is guided by the precautionary principle as adopted in
its Rules of Procedures for Environmental Cases, it will immediately stop the
Respondents from pursuing this illegal and dangerous field testing.

Please see a web-published article attached hereto as Annex AA. See also
http://www.outlookindia.com/ article.aspx?264279
84

65

PRAYER

WHEREFORE, premises considered, petitioners most respectfully pray of the

Honorable Supreme Court that:

a.

Upon the filing hereof, a Temporary Environmental 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 (iii) 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 hereof, 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

66

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

the 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 the filing hereof, 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

67

international standards; and recommend to Congress curative legislations to effectuate

such order.

Petitioners further pray for such other just and equitable reliefs under the
premises.

Quezon City, Philippines, 26 April 2012.

ATTY. ZELDANIA DT SORIANO

Rooms 301-302 JGS Building
No. 30 Sct. Tuason, Bgy. Laging Handa
Diliman, Quezon City 1103
Tel. No. 3735307; Fax No. 3735306
Email: zelda.soriano@greenpeace.org
Roll No. 55644
PTR No. 6011085/01-03-12/Quezon City
IBP No. 830991/01-03-12/Quezon City
MCLE Compliance III-0021337

ROQUE & BUTUYAN LAW OFFICES

1904 Antel Corporate Center
121 Valero Street, Salcedo Village
Makati City
Tel. No. 8874445; Fax No. 8873893
Email: mail@roquebutuyan.com

ATTY. JOVENCIO H. EVANGELISTA

Unit A-14 1093 Leyte Street
Sampaloc, Manila
Mobile No. 0917-5949424
Email: zelda.soriano@greenpeace.org
Roll No. 42797
PTR No. 0383943/01-11-12/Manila
IBP No. 836479/01-10-12/Manila
MCLE Compliance No. III-0013245

H. HARRY L. ROQUE, JR.

Roll No. 36976
PTR No. 3176086/1-2-12/Makati City
IBP No. 499912/Lifetime
MCLE Exemption No. III-1000/4-26-10

ATTY. VANESSA Q. MAGUIGAD

Unit A-14 1093 Leyte Street
Sampaloc, Manila
Mobile No. 0906-3288104
Email: anet_maguigad@yahoo.com
Roll No. 58291, 05-04-2010
PTR No. 0383942/01-11-12/Manila
IBP No. 836480/01-10-12/Manila

ROGER R. RAYEL
Roll No. 44106
PTR No. 6004208/1-2-12/Quezon City
IBP Lifetime No. 02159/Quezon City
MCLE Compliance No. III-8734

By:

68

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

WE:
a. VON GLENN HERNANDEZ, of legal age, married, executive director of
Greenpeace Southeast Asia (Philippines), with residential address at 121 D.
Tuazon St., Sta. Mesa Heights, Quezon City, with CTC no. 10703511 issued at
Quezon City on Apr 12, 2012 and passport no. EA0026218 with expiry date
Feb. 2, 2015 bearing my photograph and signature respectively;
b. CHARITO MEDINA, of legal age, married, national coordinator of
Magsasaka at Siyentipiko Para sa Pag-unlad ng Agrikultura with residential
address at 4-F Tejada Apt., Umali Subd., Batong Malaki, Los Banos, Laguna,
with drivers license no. D14-99-096239 with expiry date on Jan. 19, 2013
bearing my photograph and signature respectively;
c. LEONARDO AVILA III, of legal age, married, agriculturist of Davao City
with business address at Office of the Agriculturist, City Hall, San Pedro
Street, Davao City, with drivers license no. L02-94-095704 with expiry date
on May 21, 2013 bearing my photograph and signature respectively;
d. TEODORO CASIO, of legal age, married, congressman, with residential
address at Unit 39 Metropolitan Ave., cor. South Ave., Eco Ville Homes, Brgy.
Sta. Cruz, Makati City, with CTC no. 06504500 issued at Quezon City on Feb.
9, 2012 and ______________________________ bearing my photograph and
signature respectively;
e. BENJAMIN MALAYANG, of legal age, married, president of Siliman
University, with residential address ____________________________, with ID
_________________________ bearing my photograph and signature
respectively;
f. ANGELINA GALANG, of legal age, married, _______________, with
residential address at 16 Marymount St., La Vista, Quezon City, with Senior
Citized ID no. 46420 issued on Oct. 17, 2006 bearing my photograph and
signature respectively;
g. CATHERINE UNTALAN, of legal age, single, _____________________, with
business address at 7 Ideal St., Shaw Blvd., Mandaluyong City with passport
no. EB0415036 with expiry date on June 18, 2015 bearing my photograph and
signature respectively;
h. MARIA PAZ LUNA, of legal age, married, lawyer, with residential address at
16D1 Legaspi Towers 300, Roxas Blvd., Malate Manila with passport no.
XX3781467 with expiry date on May 24, 2014 bearing my photograph and
signature respectively;
i. JUANITO MODINA, of legal age, married, farmer of Strategic Alliance
Volunteer for the Environment, with residential address at Brgy.,
Pangasugan, Baybay City, Leyte, with drivers license H03-89-011207 with
expiry date on May 26, 2013 bearing my photograph and signature
respectively;
j. DAGOHOY MAGAWAY, of legal age, married, farmer of, with residential
address at Purok 2 Balingain, Tugbok District, Davao City with CTC no.
06091886 issued at Davao City on Jan. 9, 2012, with ID
_____________________ bearing my photograph and signature respectively;
69

k. ROMEO QUIJANO, of legal age, married, physician, with residential address

at L2B30 Salome Tan St., BF Executive Village, Paranaque City with Senior
Citizens ID no. 18891 issued on Mar. 1, 2010 bearing my photograph and
signature respectively;
l. WENCESLAO KIAT JR., of legal age, married, human toxicologist, with
business address at Saint Lukes Hospital, E. Rodriguez Sr., Quezon City,
with passport no. EB0612703 with expiry date on July 21, 2015 bearing my
photograph and signature respectively;
m. ORLANDO MERCADO, of legal age, married, former senator, with business
address at National College of Public Administration and Governance Bldg.,
University of the Philippines with CTC no. 03133426 issued at Quezon City
on Jan. 13, 2012, with drivers license no. X01-75-004035 with expiry date on
Apr. 26, 2014 bearing my photograph and signature respectively;
n. EDWARD HAGEDORN, of legal age, married, mayor of City of Palawan,
with provincial address at Palawan Council for Sustainable Development
Staff PCSD Bldg., Sports Complex Road, Sta. Monica Heights, Puerto Princesa
City, Palawan with CTC no. 2964001 issued at Puerto Princesa City on Jan. 2,
2012 with ID ______________________________ bearing my photograph and
signature respectively;
o. H. HARRY ROQUE, JR., of legal age, married, lawyer, with residential
address
at
________________________________,
with
ID
____________________________ bearing my photograph and signature
respectively;
p. NOEL CABANGON, of legal age, married, artist, with residential address at
19 Siagu St., Urduja Vill., Novaliches, Quezon City New Manila, Quezon City
with bearing my photograph and signature respectively;
q. EDWIN MARTHINE LOPEZ, of legal age, married, with residential address
________________________________, with ID ____________________________
all of us swearing in accordance to law, depose and state that:

1. I, Von Glenn Hernandez, am the duly authorized representative of Petitioner

Greenpeace Southeast Asia (Philippines) pursuant to the authority given me by its
Board of Trustees as attached;
2. I, Charito Medina, am the duly authorized representative of Petitioner
MASIPAG pursuant to a resolution of its Board of Trustees as attached;
3. We, in our personal capacities and in representation of above-named nongovernment organizations, are the petitioners in this special civil action for writs of
continuing mandamus and kalikasan with prayer for temporary environmental
protection order;
4. We have caused the foregoing to be prepared and filed; read all the allegations
contained therein; and found them to be true and correct based on our personal
knowledge and authentic documents;
5. We have not commenced any other action or proceeding involving the same
issues and subject matter in the Supreme Court, the Court of Appeals, or any other
70

tribunal or agency; to the best of our knowledge, no such action or proceeding is

pending in the said courts, tribunal or agency; and should we hereafter learn of such
fact, we will notify the Honorable Court within five (5) days from such notice.

IN WITNESS WHEREOF, we have hereunto set our hand this

__________________ in Quezon City, Philippines.

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VON GLENN HERNANDEZ

CHARITO MEDINA

HARRY ROQUE

TEODORO CASIO

BENJAMIN MALAYANG

ANGELINA GALANG

CATHERINE UNTALAN

MARIA PAZ LUNA

JUANITO MODINA

DAGOHOY MAGAWAY

ROMEO QUIJANO

WENCESLAO KIAT, JR.

ORLANDO MERCADO

72

EDWARD HAGEDORN

NOEL CABANGON

EDWIN MARTHINE LOPEZ

LEONARDO AVILA III

SUBSCRIBED AND SWORN TO BEFORE ME, this ____ day of

________________________, 2012, here at Quezon City, by all the affiants whom I have
identified through their competent evidence of identity indicated under their respective
names and signatures above.

NOTARY PUBLIC
Doc. No. _____;
Page No._____;
Book No._____;
Series of 2012.

73