Republic of the
Supreme Court
EN BANC
PHARMACEUTICAL and HEALTH G.R. NO.
173034
CARE
ASSOCIATION of the
Petitioner,
Present:
PUNO,
C.J.
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
- versus - AUSTRIA-MARTINEZ,
CARPIO-MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO,
JR.,
NACHURA,
and
REYES,
JJ.
HEALTH
SECRETARY
FRANCISCO
T. DUQUE III;
HEALTH
UNDERSECRETARIES
DR.
ETHELYN P. NIETO,
DR.
MARGARITA M. GALON,
ATTY.
ALEXANDER A. PADILLA,
&
DR. JADE F. DEL MUNDO; and
ASSISTANT
SECRETARIES
DR.
MARIO C. VILLAVERDE,
DR.
DAVID J. LOZADA, AND
DR.
NEMESIO T. GAKO, Promulgated:
Respondents.
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D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
The Court and
all parties involved are in agreement that the best nourishment for an infant
is mother's milk. There is nothing
greater than for a mother to nurture her beloved child straight from her
bosom. The ideal is, of course, for each
and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end be
attained?
Before the
Court is a petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised
Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known
as The “Milk Code,” Relevant International Agreements, Penalizing Violations
Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions
that are not constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries,
and Assistant Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH is
deemed impleaded as a co-respondent since respondents
issued the questioned RIRR in their capacity as officials of said executive
agency.[1]
Executive Order No. 51 (Milk Code) was
issued by President Corazon Aquino on
In
1990, the
On
However,
on
The
main issue raised in the petition is whether respondents
officers of the DOH acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and in
violation of the provisions of the Constitution in promulgating the RIRR.[3]
On
After
the Comment and Reply had been filed, the Court set the case for oral arguments
on
The Court hereby sets the
following issues:
1. Whether or not petitioner
is a real party-in-interest;
2. Whether Administrative
Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR)
issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the
provisions of Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international
agreements1 entered into by the
2.3 Whether Sections 4, 5(w), 22, 32, 47,
and 52 of the RIRR violate the due process clause and are in restraint of
trade; and
2.4 Whether Section 13
of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the
Rights of the Child; (2) the WHO and Unicef
“2002 Global Strategy on Infant
and Young Child Feeding;” and (3) various World Health Assembly (WHA)
Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's
standing
With
regard to the issue of whether petitioner may prosecute this case as the real
party-in-interest, the Court adopts the view enunciated in Executive Secretary v. Court of
Appeals,[4] to
wit:
The modern view is that an
association has standing to complain of injuries to its members. This view fuses the legal identity of an
association with that of its members. An
association has standing to file suit for its workers despite its lack of
direct interest if its members are affected by the action. An organization has standing to assert the
concerns of its constituents.
x x x x
x x x We note that, under its Articles of Incorporation, the
respondent was organized x x x
to act as the representative of any individual, company, entity or association
on matters related to the manpower recruitment industry, and to perform other
acts and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate
party to assert the rights of its members, because it and its members are in
every practical sense identical.
x x x The
respondent [association] is but the medium through which its individual members
seek to make more effective the expression of their voices and the redress of
their grievances. [5]
(Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,[6] where the Court ruled that an association has the legal personality to represent its members because the results of the case will affect their vital interests.[7]
Herein
petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary,
that the association is formed “to represent directly or through approved
representatives the pharmaceutical and health care industry before the
Philippine Government and any of its agencies, the medical professions and the
general public.”[8] Thus,
as an organization, petitioner definitely has an interest in fulfilling its
avowed purpose of representing members who are part of the pharmaceutical and
health care industry. Petitioner is duly
authorized[9]
to take the appropriate course of action to bring to the attention of
government agencies and the courts any grievance suffered by its members which
are directly affected by the RIRR. Petitioner,
which is mandated by its Amended Articles of Incorporation to represent the
entire industry, would be remiss in its duties if it fails to act on
governmental action that would affect any of its industry members, no matter
how few or numerous they are. Hence,
petitioner, whose legal identity is deemed fused with its members, should be
considered as a real party-in-interest which stands to be benefited or injured
by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First,
the Court will determine if pertinent international instruments adverted to by
respondents are part of the law of the land.
Petitioner
assails the RIRR for allegedly going beyond the provisions of the Milk Code,
thereby amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments[10] regarding infant and young child
nutrition. It is respondents' position
that said international instruments are deemed part of the law of the land and
therefore the DOH may implement them through the RIRR.
The
Court notes that the following international instruments invoked by
respondents, namely: (1) The United Nations Convention on the Rights of the
Child; (2) The International Covenant on Economic, Social and Cultural Rights;
and (3) the Convention on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that steps must be taken by State
Parties to diminish infant and child mortality and inform society of the
advantages of breastfeeding, ensure the health and well-being of families, and
ensure that women are provided with services and nutrition in connection with
pregnancy and lactation. Said
instruments do not contain specific provisions regarding the use or marketing
of breastmilk substitutes.
The
international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.
Under the 1987 Constitution, international law
can become part of the sphere of domestic law either by transformation
or incorporation.[11]
The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law.[12]
Treaties become part of
the law of the land through transformation pursuant to Article VII, Section
21 of the Constitution which provides that “[n]o treaty or international
agreement shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate.”
Thus, treaties or conventional international law must go through a
process prescribed by the Constitution for it to be transformed into municipal
law that can be applied to domestic conflicts.[13]
The ICMBS and WHA
Resolutions are not treaties as they have not been concurred in by at least
two-thirds of all members of the Senate as required under Section 21, Article
VII of the 1987 Constitution.
However, the ICMBS which
was adopted by the WHA in 1981 had been transformed into domestic law through
local legislation, the Milk Code.
Consequently, it is the Milk Code that has the force and effect of law
in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a
verbatim reproduction of the ICMBS, but it is well to emphasize at this point
that the Code did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to the general public
of products within the scope of the ICMBS.
Instead, the Milk Code expressly provides that advertising,
promotion, or other marketing materials may be allowed if such materials are
duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The
embodies the incorporation method.[14]
In Mijares
v. Ranada,[15]
the Court held thus:
[G]enerally
accepted principles of international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted as
binding result from the combination [of] two elements: the established,
widespread, and consistent practice on
the part of States; and a psychological
element known as the opinion juris sive necessitates (opinion as to
law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.[16] (Emphasis supplied)
“Generally accepted
principles of international law” refers to norms of general or customary
international law which are binding on all states,[17]
i.e., renunciation of war as
an instrument of national policy, the principle of sovereign immunity,[18]
a person's right to life, liberty and due process,[19]
and pacta sunt servanda,[20] among others.
The concept of “generally
accepted principles of law” has also been depicted in this wise:
Some legal scholars and judges look upon certain “general principles of
law” as a primary source of international law because they have the
“character of jus rationale” and are “valid through all kinds of human
societies.” (Judge
Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966
I.C.J. 296). O'Connell holds that
certain priniciples are part of international law
because they are “basic to legal systems generally” and hence part of the jus gentium. These principles, he believes, are
established by a process of reasoning based on the common identity of all legal
systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the
municipal law principle provides a just and acceptable solution. x x x [21] (Emphasis supplied)
Fr. Joaquin G. Bernas
defines customary international law as follows:
Custom or customary international law means “a
general and consistent practice of states followed by them from a sense of
legal obligation [opinio juris].” (Restatement)
This statement contains the two basic elements of custom: the material
factor, that
is, how states behave, and the psychological or subjective factor, that
is, why they behave the way they do.
x
x x x
The
initial factor for determining the existence of custom is the actual behavior
of states. This includes several elements: duration, consistency, and generality
of the practice of states.
The
required duration can be either short or long.
x x x
x
x x x
Duration
therefore is not the most important element.
More important is the consistency and the generality of the
practice. x x
x
x
x x x
Once
the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do.
Do states behave the way they do because they consider it obligatory
to behave thus or do they do it only as a matter of courtesy? Opinio
juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.[22] (Underscoring and
Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.[23]
WHA Resolutions have not
been embodied in any local legislation.
Have they attained the status of customary law and should they then be
deemed incorporated as part of the law of the land?
The World Health
Organization (WHO) is one of the international specialized agencies allied with
the United Nations (UN) by virtue of Article 57,[24] in relation to Article 63[25] of the UN Charter. Under the 1946 WHO Constitution, it is the
WHA which determines the policies of the WHO,[26] and has the power to
adopt regulations concerning “advertising and labeling of biological,
pharmaceutical and similar products moving in
international commerce,”[27] and to “make
recommendations to members with respect to any matter within the competence of
the Organization.”[28] The legal effect of its regulations, as
opposed to recommendations, is quite different.
Regulations, along with
conventions and agreements, duly adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organizati