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Sisyphus’ Lament

SC Bt ‘talong’ decision: criticism baseless

OUR Supreme Court’s Bt  talong (eggplant) decision is being criticized for things it never said.

A Dec. 15 Inquirer commentary (“Dark day for science,” Opinion) accused the Court of making scientific pronouncements it had no competence to make and of unduly favoring environmental activists such as Greenpeace and their “shoddy evidence.” Curiously, only a Supreme Court Public Information Office (PIO) summary, not the actual decision, was available then.

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The disconnect is that the Bt  talong  decision arguably made no scientific pronouncements.

The 104-page decision is difficult reading, with lengthy quotes from scientists. But skipping to page 69, it concludes that there is no scientific consensus on genetically modified organisms (GMOs).

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The Inquirer commentary argues this is a scientific pronouncement in itself, and that there is no scientific uncertainty in GMOs’ safety. In any case, this was not central to the high court’s real point.

The Court’s actual ruling was to nullify government GMO guidelines for lack of measures on risk management and transparency for stakeholders required by the Cartagena Protocol on Biosafety, which the Philippines signed.

Justice Marvic Leonen’s concurring opinion more clearly illustrates this. An applicant for GMO testing, not the community, chooses community representatives to the relevant biosafety committee. Notices regarding such testing are merely posted in conspicuous places in the area, with no requirement for meaningful meetings with the community or local government concerned. Leonen criticized the regulation as “nonchalant.”

The decision clearly did not prohibit GMO testing per se. Its final section would allow GMO testing under new regulations with the required risk management and transparency.

Justice Presbitero Velasco’s concurring opinion further argued that the Bt  talong  testing failed to comply with environmental impact assessment requirements under older laws.

After Christmas, Philippine Star and Manila Bulletin commentaries claimed the decision makes ominous, scientifically backward pronouncements such as “humans are not supposed to tamper with any one element [in the ecosystem]” and “there is a perfect and sound balance of our biodiversity as created or brought about by God.”

However, these lines were from the Court of Appeals decision being reviewed by the Supreme Court. These were excerpted in pages 14-15 of the high court’s decision under the heading “Factual Background.” These were never adopted by the Supreme Court.

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In sum, many scientists and pundits have clearly misread—or not read—the Court decision they criticize, particularly those who imply that troglodyte judges have perpetually halted all GMO testing.

We must reiterate insights from past gaffes. First, we sorely need to strengthen legal academia. No impartial referee pointed out that the last two weeks of op-eds criticized what the Supreme Court never said.

Second, the Supreme Court should stop its practice of announcing a decision but releasing its actual text days later. Here, reporters and initial pundits relied on a PIO summary. It was not completely clear from this that the Court was not banning all GMO testing.

Third, Randy David framed that society’s various spheres operate by their own codes. Thus, judges must be critiqued primarily under the legal code, or for lack of legal basis. Criticizing them primarily for perceived horrible results is tricky.

Take former president Joseph Estrada. The Supreme Court ruled that the specific wording of his pardon after his plunder conviction allowed him to run for mayor of Manila. However, those who oppose the idea of a convict running for office regardless of the pardon’s wording still criticized the Court, not the president who issued the pardon.

The Supreme Court clearly had legal basis here. While a court cannot dictate scientific matters, it properly scrutinizes how we resolve these. A court cannot dictate an election’s result but may scrutinize an election system, a classic example in judicial philosophy.

Scientists may claim it is in fact certain that GMOs are completely safe, but this is best argued before Congress, not before courts.

On legal critique, I was surprised at how Leonen hinted that our constitutional right to a balanced ecology is treated with “strict scrutiny.” Constitutional cases revolve around the level of scrutiny judges impose. The higher the level, the more government must justify itself. Strict scrutiny is the highest level.

Did Leonen take an anti-GMO position overlooked by pundits? Imposing strict scrutiny often predetermines that government loses. It must prove not just that regulation was reasonable, but, in Leonen’s phrasing, that it is the “least restrictive” option. Are judges even competent to make scientific pronouncements on which option is least restrictive?

Leonen’s side comment seemed off-topic and had no direct supporting legal citation. It will be formally scrutinized in future cases on technology.

More practically, pundits ask if the high court literally prohibits all importation and planting of GMOs, from soybean meal for animal feeds to hybrid corn, until new guidelines for GMOs are enacted. The Court might clarify how the decision temporarily enjoins all “use” and “importation” of GMOs.

Finally, it would have been interesting to hear Senior Associate Justice Antonio Carpio and Justice Francis Jardeleza, who debated conservative versus liberal interpretation of cultural conservation in the Torre de Manila case. Both inhibited.

It has become normal for public debates on legal matters to revolve around doctrines that clearly do not exist or contradict freshman textbooks. This undermines democracy. Perhaps this column should be renamed to that quote from the sage of Summit Media: “Research pa more, pare ko.”

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React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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TAGS: biosafety, Bt Talong, decision, eggplant, opinion, Science, Supreme Court
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