IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter of an application
for orders in the nature of
writs or certiorari and mandamus
under and in terms of the provisions of
Article 140 of the Constitution.
C.A. Application No. ……../2005
Withanage Don Hemantha Ranjith Sisira Kumara,
Executive Director,
Centre for Environmental Justice,
59/14, Kuruppu Road,
Colombo 08.
PETITIONER
V.
1.
Minister of Healthcare, Nutrition and Uva
Wellssa Development,
385, Deans Road,
Colombo10.
2.
Consumer Affairs Authority,
SATHOSA Secretariat Building,
1st and 2nd Floor,
27, Vauxhall Street,
Colombo 02.
3.
Attorney General,
Attorney General’s Department,
Hulftsdorp Street,
Colombo 12 .
RESPONDENTS
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TO HIS LORDSHIP THE PRESIDENT AND THE OTHER HONOURABLE JUSTICES
OF THE COURT OF APPEAL.
I, Mark Chernaik, of 2355 Dale Avenue Eugene, Oregon, 97408, United States of America,
being a Jew, do hereby solemnly, sincerely and truly declare and affirm as follows:1.
I am the affirmant above named and affirm to the facts stated herein from my personal
knowledge.
2.
In 1990, I earned a doctorate in biochemistry from Johns Hopkins University School of
Hygiene and Public Health in Baltimore, Maryland, U.S.A. My seven years of laboratory
research involved the use of genetic engineering in a research setting to further our
understanding of the toxicity of heavy metals. Since June 1992, I have held the position
of Staff Scientist for the U.S. office of the Environmental Law Alliance Worldwide. In
my current position, I provide expert advice on environmental science to numerous
environmental attorneys throughout the world. My submissions have been noted in
judgments of the Supreme Court of India and the Supreme Court of Pakistan.
3.
The process of creating genetically-modified plants and animals is highly technical and
occurs in the laboratory. A good explanation of the process is set out below, which I
extracted from the following reference that I am attaching as Appendix A: “Transgenic
Crops: How Genetics is Providing New Ways to Envision Agriculture.”
3.1.
Selection and amplification of a gene:
“For many years plant breeding entailed the selection of the finest plants to get the best
crops. In those days, variation occurred through induced mutation or hybridization where
two or more plants were crossed. Selection occurred through nature, using a ‘selection of
the fittest’ concept, where only the seeds best adapted to that environment succeeded. For
example, farmers selected only the biggest seeds with non-shattering seed heads,
assuming these to be the best. Today, scientists can not only select, but also create crops
by inserting genes to make seeds bare any trait desired. In order to make a transgenic
crop, there are five main steps: extracting DNA, cloning a gene of interest, designing the
gene for plant infiltration, transformation, and finally plant breeding. To understand this
process, one must first know a bit about DNA (deoxyribonucleic acid). DNA is the
universal programming language of all cells and stores their genetic information. It
contains thousands of genes, which are discrete segments of DNA that encode the
information necessary to produce and assemble specific proteins. ... Genes that are
determined to contribute to certain traits then need to be obtained in a significant amount
before they can be inserted into another organism. In order to obtain the DNA comprising
a gene, DNA is first extracted from cells and put into a bacterial plasmid. A plasmid is a
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molecular biological tool that allows any segment of DNA to be put into a carrier cell
(usually a bacterial cell) and replicated to produce more of it. A bacterial cell (i.e. E. coli)
that contains a plasmid can be put aside and used over and over again to produce copies
of the gene the researcher is interested in, a process that is generally referred to as
‘cloning’ the gene. The word ‘cloning’ refers to how many identical copies of the original
gene can now be produced at will. Plasmids containing this gene can be used to modify
the gene in any way the researcher sees fit, allowing novel effects on the gene trait to be
produced.
3.2
Introduction of the gene into a new host:
“Once the gene of interest has been amplified, it is time to introduce it into the plant
species we are interested in. The nucleus of the plant cell is the target for the new
transgenic DNA. There are many methods of doing this but the two most common
methods include the ‘Gene Gun’ and Agrobacterium method. The ‘Gene Gun’ method,
also known as the micro-projectile bombardment method, is most commonly used in
species such as corn and rice. As its name implies, this procedure involves high velocity
micro-projectiles to deliver DNA into living cells using a gun. It involves sticking DNA
to small micro-projectiles and then firing these into a cell. This technique is clean and
safe. It enables scientists to transform organized tissue of plant species and has a
universal delivery system common to many tissue types from many different species. It
can give rise to un-wanted side effects, such as the gene of interest being rearranged upon
entry or the target cell sustaining damage upon bombardment. Nevertheless, it has been
quite useful for getting transgenes into organisms when no other options are available.
The Agrobacterium method involves the use of a soil-dwelling bacteria known as
Agrobacterium tumefaciens, which has the ability to infect plant cells with a piece of its
DNA. The piece of DNA that infects a plant is integrated into a plant chromosome
through a tumor-inducing plasmid (Ti plasmid), which can take control of the plant's
cellular machinery and use it to make many copies of its own bacterial DNA. The Ti
plasmid is a large circular DNA particle that replicates independently of the bacterial
chromosome.”
3.3.
The techniques of genetic engineering pose a hidden hazard: that genetic material from
bacteria, viruses and other genetic parasites used in the selection and amplification of
genes will escape into existing pathogens, creating newer and more virulent strains of
viruses and bacteria. A good description of these hidden hazards is set out below, which
I extracted from the following reference that I am attaching as Appendix B: Ho, M.-H.
“Horizontal Gene Transfer - The Hidden Hazards of Genetic Engineering.”
“Genetic engineering is a collection of laboratory techniques used to isolate and combine
the genetic material of any species, and then to multiply the constructs in convenient
cultures of bacteria and viruses in the laboratory. Most of all, the techniques allow
genetic material to be transferred between species that would never interbreed in nature.
That is how human genes can be transferred into pig, sheep, fish and bacteria; and spider
silk genes end up in goats. Completely new, exotic genes are also being introduced into
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food and other crops. ... In order to overcome natural species barriers limiting gene
transfer and maintenance, genetic engineers have made a huge variety of artificial vectors
(carriers of genes) by combining parts of the most infectious natural vectors - viruses,
plasmids and transposons - from different sources. These artificial vectors generally have
their disease-causing functions removed or disabled, but are designed to cross wide
species barriers, so the same vector may now transfer, say, human genes spliced into the
vector, to the genomes of all other mammals, or of plants. Artificial vectors greatly
enhance horizontal gene transfer (see Box 1). ... Most artificial vectors are either derived
from viruses or have viral genes in them, and are designed to cross species barriers and
invade genomes. They have the potential to recombine with the genetic material of other
viruses to generate new infectious viruses that cross species barriers. Such viruses have
been appearing at alarming frequencies. The antibiotic resistance genes carried by
artificial vectors can also spread to bacterial pathogens. ... There is already overwhelming
evidence that horizontal gene transfer and recombination have been responsible for
creating new viral and bacterial pathogens and for spreading drug and antibiotic
resistance among the pathogens. One way that new viral pathogens may be created is
through recombination with dormant, inactive or inactivated viral genetic material that
are in all genomes, plants and animals without exception. Recombination between
external and resident, dormant viruses have been implicated in many animal cancers (17).
... The hazards of horizontal gene transfer [include]: generation of new cross-species
viruses that cause disease; generation of new bacteria that cause diseases; spreading drug
and antibiotic resistance genes among the viral and bacterial pathogens, making
infections untreatable; random insertion into genomes of cells resulting in harmful effects
including cancer; reactivation of dormant viruses, present in all cells and genomes, which
may cause diseases; spreading new genes and gene constructs that have never existed;
multiplication of ecological impacts due to all of the above. ... There is an urgent need to
establish effective regulatory oversight, in the first instance, to prevent the escape and
release of these dangerous constructs into the environment, and then to consider whether
some of the most dangerous experiments should be allowed to continue at all.”
4.
Natural selection (traditional breeding) differs entirely from genetic engineering.
Traditional breeding uses natural reproduction to select desirable traits from among many
traits present in a population of closely related plants and animals. Traditional breeding
began many thousands of years ago. Prehistoric human societies learned that planting
seeds at a certain time of the year produced similar seed-producing plants. Soon after, it
was discovered that some crops of the same species grew better or tasted better than
others, which became the starting point of selective breeding. Later in the nineteenth
century, Charles Darwin introduced the theory of natural selection, which explains how
the environment selects organisms with traits that provide them better overall fitness.
Traditional breeding by farmers is an extension of this process. Farmers can select plants
that not only have better overall fitness, but also have properties that humans desire, such
as better taste and appearance, or offspring that produce higher yields. In order to
employ traditional breeding, farmers must have a large and varied population of seeds
from which to select. This population must contain a large diversity of genes that confer
to offspring the ability to adapt to seasonal changes in the environmental conditions they
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are grown. These populations, called landraces, are generally found in regions where
such plants have originated.
5.
The use of food ingredients from genetically-modified plants and animals may cause
harm in two ways: 1) by consumption of genetically-modified plants and animals that
may cause adverse health effects, including food allergies; and 2) by the unintended
escape (introgression) of altered genes into other host species that may cause far-reaching
adverse ecological and agricultural impacts.
5.1.
Scientific evidence shows that consumption of some genetically-modified plants and
animals causes adverse health effects, including food allergies. For example, in the mid1990's, the Monsanto Corporation introduced a gene from the Brazil Nut plant into the
Soybean plant. A scientific publication found that this gene directs the host organism (in
this case the Soybean plant) to make a new protein, called 2S albumin, found in Brazil
Nut. The Soybean plant is relatively deficient in one of the essential amino acids,
methionine, and 2S albumin from Brazil Nut is rich in methionine. However, 2S albumin
is a potent food allergen. Consumption of transgenic soybeans containing the gene for 2S
albumin could cause food allergies in people allergic to Brazil Nut. The scientific
publication concluded that: “Studies show that an allergen from a food known to be
allergenic can be transferred into another food by genetic engineering. As a result of this
information, Monsanto Corporation abandoned plans to market transgenic Soybean that
contains the 2S albumin protein from Brazil Nut.
Another scientific publication concluded that:
In recent years, a number of agricultural crops have been developed with recombinant
DNA technology. Because the transferred genes code for proteins that are ordinarily not
present in these particular foods, there is concern about the potential allergenicity of these
new crop varieties. ... The concern is that if a few transgenic foods cause serious allergic
reactions, this could undermine the public's confidence in such products. It is essential
that proper guidelines are established and tests are developed to assure that this will not
occur.
5.2.
Genetically-modified plants and animals allow their altered genes (transgenes) to
escape (introgress) into the genetic material of native, wild varieties of plants and
animals, causing unpredictable and adverse consequences. GMOs are capable to escape
and potentially introduce the engineered genes into wild populations. It can cause the
release of organisms which have never before existed in nature and which cannot be
recalled. The World Health Organization (WHO) describes this risk: “the persistence of
the gene after the GMO has been harvested; the susceptibility of non-target 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.
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There is ample scientific evidence that introgression of genes from genetically-modified
plants and animals has occurred and can cause ecological and environmental harm.
For example, genes that confer resistance to herbicides are commonly engineered into
genetically-modified plants. There is a scientific publication (December 2004) showing
that herbicide-resistant genes can introgress from crop species into weed species. The
introgression of herbicide resistant genes into weed species could have potentially
devastating impacts on farmers who would be faced with intractable weed problems.
According to this publication:
Data from the literature and recent experiments with herbicide-resistant (HR) Canola
(Brassica napus L) repeatedly confirm that genes and transgenes will flow and hybrids
will form if certain conditions are met. These include sympatry with a compatible relative
(weedy, wild or crop), synchrony of flowering, successful fertilization and viable
offspring. The chance of these events occurring is real; however, it is generally low and
varies with species and circumstances. Plants of the same species (non-transgenic or with
a different HR transgene) in neighbouring fields may inherit the new HR gene,
potentially generating plants with single and multiple HR. For Canola, seed losses at
harvest and secondary dormancy ensures the persistence over time of the HR trait(s) in
the seed bank, and the potential presence of crop volunteers in subsequent crops.
Although Canola has many wild/weedy relatives, the risk of gene flow is quite low for
most of these species, except with Brassica rapa L. Introgression of genes and transgenes
in B rapa populations occurs with apparently little or no fitness costs. Consequences of
HR canola gene flow for the agro-ecosystem include contamination of seed lots,
potentially more complex and costly control strategy, and limitations in cropping system
design.”
Similarly, two scientific publications in 2003 provide hard evidence that transgenes do
escape from genetically-modified plants into wild plant relatives, creating the potential
for drastic impacts on ecosystems where wild plant relatives exist.
Concern about gene flow from crops to wild relatives has become widespread with the
increasing cultivation of transgenic crops. Possible consequences of such gene flow
include genetic assimilation, wherein crop genes replace wild ones, and demographic
swamping, wherein hybrids are less fertile than their wild parents, and wild populations
shrink. Using mathematical models of a wild population recurrently receiving pollen
from a genetically fixed crop, we find that the conditions for genetic assimilation are not
stringent, and progress towards replacement can be fast, even for disfavoured crop genes.
Demographic swamping and genetic drift relax the conditions for genetic assimilation
and speed progress towards replacement. Genetic assimilation can involve thresholds and
hysteresis, such that a small increase in immigration can lead to fixation of a disfavoured
crop gene that had been maintained at a moderate frequency, even if the increase in
immigration is cancelled before the gene fixes. Demographic swamping can give rise to
'migrational meltdown', such that a small increase in immigration can lead to not only
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fixation of a disfavoured crop gene but also drastic shrinkage of the wild population.
These findings suggest that the spread of crop genes in wild populations should be
monitored more closely.
Gene flow and introgression from cultivated to wild plant populations have important
evolutionary and ecological consequences and require detailed investigations for risk
assessments of transgene escape into natural ecosystems. Sugar Beets (Beta vulgaris ssp.
vulgaris) are of particular concern because: (i) they are cross-compatible with their wild
relatives (the Sea Beet, B. vulgaris ssp. maritima); (ii) crop-to-wild gene flow is likely to
occur via weedy lineages resulting from hybridization events and locally infesting fields.
Using a chloroplastic marker and a set of nuclear microsatellite loci, the occurrence of
crop-to-wild gene flow was investigated in the French sugar beet production area within a
'contact-zone' in between coastal wild populations and sugar beet fields. The results did
not reveal large pollen dispersal from weed to wild Beets. However, several pieces of
evidence clearly show an escape of weedy lineages from fields via seed flow. Since most
studies involving the assessment of transgene escape from crops to wild outcrossing
relatives generally focused only on pollen dispersal, this last result was unexpected: it
points out the key role of a long-lived seed bank and highlights support for transgene
escape via man-mediated long-distance dispersal events.
6.
The unpredictable and potentially far-reaching impacts of genetically-modified plants and
animals requires the application of the Precautionary Principle.
The Precautionary Principle may be stated as follows:
"When an activity raises threats of harm to human health or the environment,
precautionary measures should be taken even if some cause and effect relationships are
not fully established scientifically. In this context the proponent of an activity, rather than
the public, should bear the burden of proof. The process of applying the Precautionary
Principle must be open, informed and democratic and must include potentially affected
parties. It must also involve an examination of the full range of alternatives, including no
action."
In the context of genetically-modified plants and animals, ethicists in the U.S. have stated
the following, which I extracted from the reference that I am attaching as Appendix C:
A Response To Issues And Values Related To Genetically Modified Organisms." A
Statement of the Rural Life Committee of the North Dakota Conference of Churches,
March 2003.
“…we endorse the Precautionary Principle as a primary guide in the development,
application and expansion of GMO biotechnology. … One of the first questions of
further expansion of GMO technology and use is the question of unintended genetic
contamination of non-GMO varieties of a given life form and its biological relatives.
Once introduced into the natural environment a genetically modified organism cannot be
fully contained, nor can it be retrieved. Through the natural processes of reproduction,
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including pollination by wind, insects, and other means, the new organism interacts
within its own and closely related species and with other life forms to produce offspring
that may contain and pass on the GMO characteristic. … The potential that a GMO
commodity may become the dominant specie, either through economic or natural
processes is a matter of deep concern. Within the natural process, the very characteristic
that allows a variety to dominate a specie may also become the characteristic that makes
it peculiarly susceptible to failure. The domination of any given variety (whether or not it
contains a GMO trait) in an agricultural commodity is of concern in food systems since it
runs counter to the long-term interests of preserving genetic diversity. The GMO
component exacerbates this concern. The potential that a GMO trait may be transferred
to related unwanted species (weeds and regrowth) may make it more difficult to control
such unwanted species. This is already being experienced. Just as insects evolve to
become resistant to insecticides, unwanted plants will also evolve to become resistant. As
such evolution occurs, it will require increased applications of the herbicide and/or new
strategies of control. … There is little scientific knowledge or research on the long-term
effects of GMO foods on human health and nutrition. Diet has become a major health
issue and diet-related diseases lead the mortality rates in the United Sates. We are just
beginning to fully understand and appreciate the health implications of our current food
system. GMO foods add another dimension to the complexity of issues of diet and health.
The lack of labelling requiring the identification of the presence of GMO materials in
foods and the paucity of peer-reviewed scientific studies on the long-term safety of eating
GMO foods makes it impossible for concerned persons to make informed decisions about
their diet.”
7.
Concern over the effects of genetically modified organisms has prompted countries
around the world to regulate GMOs. As of May 2004, at least 42 countries mandate some
form of labelling of GM foods. Jurisdictions that require labelling of GM foods include
the European Union, Mexico, Australia, New Zealand, Chile, Ecuador, South Africa,
China, Indonesia, Japan, South Korea, the Philippines, the Russian Federation, Saudi
Arabia, Taiwan, Thailand, and the U.S. State of Vermont. Furthermore, at least 18
countries have imposed a ban or moratorium within their national boundaries on the
commercialization or importation of one or more GM foods or crops.
The foregoing affidavit having been read over
and explained to the above named affirmant and
he appearing to have understood the nature,
content and context thereof affirmed and set his
hand at Eugene, Oregon on this ..…..day of
January 2005.
…………………………….
Mark L. Chernaik
Notary Public for Oregon
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My Commission expires: