PHAP V Duque PDF

Pharmaceutical and Health Care Association of the Philippines (PHAP) v.
Duque III (DOH Secretary)

Doctrine:
Section 2 of the 1987 Constitution provides:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all nations.
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 "[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.
Facts:
Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR)
of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not
constitutional and go beyond what it is supposed to implement. Milk Code was issued by President Cory
Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Art 11 of the Intl Code of Marketing and Breastmilk
Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-2006, The WHA
also adopted severe resolutions to the effect that breastfeeding should be supported, hence, it should
be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the
DOH issued the assailed RIRR.
Issue:
Wheher or not the pertinent intl agreements entered into by the Phil are part of the law of the
land and may be implemented by DOH through the RIRR. If yes, whether or not the RIRR is in accord
with intl agreements.
Ruling:
Yes for ICBMS. Under 1987 Consti, intl law can become domestic law by transformation (thru
constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e
treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of
all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed
into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim
reproduction of ICBMS.
No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions
pertinent WHA resolutions are customary intl law that may be deemed part of the law of the land. For
an intl rule to be considered as customary law, it must be established that such rule is being followed by
states because they consider it as obligatory to comply with such rules (opinion juris). The WHO
resolutions, although signed by most of the member states, were enforced or practiced by at least a
majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into
the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from
0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes)
have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have
the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT
LAW non-binding norms, principles and practices that influence state behavior. Soft law is not part of
intl law
Notes:
Fr. Bernas on customary law:
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.
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.
Duration therefore is not the most important element. More important is the consistency and
the generality of the practice.
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
On WHA:
As previously discussed, for an international rule to be considered as customary law, it must be
established that such rule is being followed by states because they consider it obligatory to comply with
such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA
Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any compliance by
member states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the
land that can be implemented by executive agencies without the need of a law enacted by the
legislature.

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Pharmaceutical and Health Care Association of the Philippines (PHAP) v.

Duque III (DOH Secretary)

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