God’s plants: SC and Bt ‘talong’ case

The decision of the Supreme Court in the Bt talong case was widely criticized—usually correctly, in our opinion—mostly from the scientific or economic view. This piece focuses instead on the Court’s contradictory legal positions and the proper role of the judiciary in our tripartite form of government.

In prohibiting further field testing on Bt talong, the Supreme Court upheld the Court of Appeals’ decision justifying the ban by declaring that the field tests are “an ecologically imbalancing act,” and that “for sure, there is a perfect and sound balance of our biodiversity as created or brought about by God out of His infinite and absolute wisdom.”

This is in contrast with the Supreme Court’s pronouncement two years ago where, in upholding the constitutionality of the Reproductive Health  Law, it declared its utter reluctance to recognize a higher law in favor of strict textualism: “Our only guidepost is the Constitution… Unless a natural right has been transformed into a written law, it cannot serve as a basis to strike down a law.”

What, then, is the Court’s actual position when deciding cases where it is presented with arguments involving general or philosophical legal concepts that may or may not be embedded expressly in the Constitution?

In deciding the Bt talong case, the Court willingly embraced the quite undefined general idea of “ecology.” In the RH Law case, it was very quick to turn its back on the idea of a “natural law,” which was unusual considering that past Supreme Courts repeatedly recognized natural law in deciding cases (a fact that then Chief Justice Reynato Puno raised in his brilliant concurring opinion in Republic vs Sandiganbayan).

And let us not forget the Court’s habitual resort to that majestic generality that is “social justice.”

Admittedly, in the Bt talong case, Article II, Section 16 of the Constitution requires the state to “protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”

But considering that rather general-sounding goal, it is quite sensible and practical to assume that achieving such is better left to the prerogative of Congress, what with its ability to self-initiate (i.e., to legislate, repeal, or reenact measures as it may see fit), and its immediate access to the people’s opinion and expertise, and not the courts.

Instead, the Court confidently asserted the “precautionary principle” in the Bt  talong case in prohibiting the field testing.

For the sake of argument, let us presume such was correct particularly when seen from the viewpoint of the Court’s rules of procedure for environmental cases and its belief that “doubts must be resolved in favor of the constitutional right to a balanced and healthful ecology.”

But the same rules require consideration of the precautionary principle when the case may actually involve threats to human life or health and prejudice to the environment, and not just whenever “ecology” is invoked in general.

This makes it curious that the Court ignored the precautionary principle in the RH Law case when contraceptives’ threat to human life or health, as well as the environment, was raised during the proceedings therein.

So again: What standard does this Court have with regard to applying concepts, such as the demands of the ecology or social justice or natural law, when it has not been reduced to “written law” or at least not specifically so?

Finally, because there is no actual constitutional endorsement or prohibition of GMO research, Congress should be free to legislate on it as it sees fit.

This was the position taken, impliedly, by the Court in the RH Law case: deferring to the discretion of Congress with regard to the appreciation of the merits (or lack of it) of the government policy decision to subsidize contraceptives with taxpayer money.

But in the Bt talong case, the Court decided to supplant Congress’ judgment with its own. Why?

The Court did the same in the Manila Hotel case (under the vague concept of “national patrimony”) and the Pandacan oil depot case (this time by simply citing “police power”).

Reasonableness dictates, however, that the Court lay down, for the benefit of the other two branches of government, as well as the Filipino people, a discernable concrete standard by which it accords itself the right to substitute its discretion over all others.

Environmental protection is a laudable goal. So is the encouragement of innovation, research, and development. The achievement of both equally laudable goals would only be possible if the rules are not fluid and changeable.

The genius of the Constitution is that latitude of discretion is given to the elected branch of government to take whatever initiatives the people may require.

Regarding the Bt talong case specifically, could the scientists who insist that Bt talong is safe for the environment be mistaken? Could the environmental harm caused by Bt talong outweigh the economic benefits that could be derived from developing it? The answers to both questions are: Yes, it’s possible.

But issues of the health and environmental risks associated with GMOs and what measures to take to protect the environment without unduly stifling scientific research are best decided by a Congress directly accountable to the people.

And the rule of law demands that we adhere humbly to the division of the powers of government, as laid out in our Constitution.

Cristina Montes (LLM Navarre) is a specialist in globalization and constitutional studies. Jemy Gatdula (LLM Cambridge) works on international and constitutional law issues.