Professional Documents
Culture Documents
Pharmaceutical V Health Secretary
Pharmaceutical V Health Secretary
PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES 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,respondents.
G.R. No. 173034
October 9, 2007
AUSTRIA-MARTINEZ, J.
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. 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. Treaties become part of the law of the land through transformation pursuant to Article
VII, Section 21 of the Constitution which provides that “no treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate.”
Facts:
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of the legislative powers granted to the president under the
Freedom Constitution. One of the preambular clauses of the Milk Code states that the law
seeks to give effect to Article 11 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From
1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should
be supported, promoted and protected, hence, it should be ensured that nutrition and health
claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take appropriate
measures to diminish infant and child mortality, and ensure that all segments of society,
specially parents and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on
July 7, 2006. However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ
of Preliminary Injunction. 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. On August 15, 2006, the Court issued a
Resolution granting a TRO enjoining respondents from implementing the questioned RIRR.
Issue:
Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules
and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
Whether pertinent international agreements entered into by the Philippines are part
of the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements.
Ruling:
The Supreme Court found the petition partly imbued with merit.
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
instruments10 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.
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 "no 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).
Clearly, customary international law is deemed incorporated into our domestic system.
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?
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions
urging member states to implement the ICMBS are merely recommendatory and legally non-
binding. Thus, unlike what has been done with the ICMBS whereby the legislature
enacted most of the provisions into law which is the Milk Code, the subsequent
WHA Resolutions,30 specifically providing for exclusive breastfeeding from 0-6
months, continued breastfeeding up to 24 months, and absolutely prohibiting
advertisements and promotions of breastmilk substitutes, have not been adopted as a
domestic law.
The Court also determine whether the DOH may implement the provisions of the
WHA Resolutions by virtue of its powers and functions under the Revised
Administrative Code even in the absence of a domestic law.
Dispositive portion:
SO ORDERED.