PHAP v. Duque

CASE DIGEST
PHAP v. Duque
Constitutional Law
Date October 9, 2007

Plaintiff-Appellee Pharmaceutical and Health Care Association of the Philippines (PHAP)
Accused-Appellants Health Secretary Francisco T. Duque III
Ponente Austria-Martinez, J.
Overview A case regarding the Milk Code
Relevant topic Declaration of Principles and State Policies
Art. VII, Sec. 21

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.
Art. II, Sec. 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.
RELEVANT CHARACTERS:
FACTS:
 E.O. No. 51 (Milk Code) was issued by Pres. Corazon Aquino on Oct. 28, 1986, by virtue of the Freedom
Constitution
- The Milk Code seeks to give effect to Art. 11 of the International Code of Marketing of Breast milk
Substitutes (ICMBS) which was adopted by the World Health Assembly (WHA) in 1981
 In 1990, PH ratified the International Convention on the Rights of the Child
- Art. 24 states that:
“State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, especially parents and children, are informed of the advantages of breastfeeding”
 On May 15, 2006, DOH issued A.O. No. 2006-2012, the RIRR of the Milk Code
 Petitioner assailed the said RIRR alleging that 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 Constitution in
promulgating the RIRR
- Petitioner alleges that the RIRR goes beyond the provisions of the Milk Code, thereby amending and
expanding the coverage of the said law; also claims the RIRR is oppressive and violates due process
clause for being in restraint of trade
- Respondents claim that the RIRR does not only implement the Milk Code but also various international
instruments regarding infant and young child nutrition and that said international instruments are deemed
part of the law of the land
- The Court issued a Resolution granting a TRO
ISSUE – HELD – RATIO:
ISSUES HELD
1) WON the provisions of the RIRR of the Milk Code are constitutional NO
2) WON the pertinent international agreements entered into by the PH are NO

part of the law of the land
RATIO:
 The petitioner has standing
- 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 constitutents.
 Petitioner invoked the following international instruments:
1. United Nations Convention on the Rights of the Child
2. International Covenant on Economic, Social, and Cultural Rights
3. Convention on the Elimination of All Forms of Discrimination Against Women
Page 1 of 3
CASE DIGEST
PHAP v. Duque
Constitutional Law
4. International Code of Marketing of Breast milk Substitutes (ICMBS)

5. Various WHA resolutions
- The first 3 only provide in general terms that steps must be taken to diminish infant and child mortality and
inform society of the advantages of breastfeeding; do not contain specific provisions regarding use or
marketing of breast milk substitutes
- Only last 2 have specific provisions regarding breast milk substitutes
 Under the Constitution, international law can become part of the laws of the land either by:
1. Transformation
- Requires that int’l law be transformed into domestic law through a constitutional mechanism such as local
legislation
- Pursuant to Art. VII, Sec. 21 of the Constitution, with respect to treaties; however, ICMBS and WHA
resolutions are not treaties
2. Incorporation
- by mere constitutional declaration, international law is deemed to have the force of domestic law
- embodied in Sec. 2, Art. II of the 1987 Constitution
- Generally accepted principles of international law
 Norms of general or customary international law which are binding on all states
 e.g. renunciation of war as an instrument of national policy, principle of sovereign immunity, a
person’s right to life, liberty, and due process, etc.
- Customary International Law
 General and consistent practice of states followed by them from a sense of legal obligation/
opinion juris
 Belief that a certain form of behaviour is obligatory
 The WHA resolutions have not been transformed into domestic law. The ICMBS meanwhile has been
transformed through the MILK CODE
- Almost verbatim reproduction of ICMBS except for absolute prohibition on advertising/promotion of certain
breast milk substitute products which the Milk Code allows if duly authorized and approved by the Inter-
Agency Committee (IAC)
 WHA resolutions, being “soft laws”, are merely recommendatory and legally non-binding
- They are not considered as generally accepted principles of international law or customary law
- hence not part of the laws of the land
- furthermore, a total ban policy provided under WHA cannot be implement by the DOH since no such
policy is provided under the national health policy
 Thus, only provisions of the Milk Code and not of WHA resolutions may be implemented by the DOH through
the IRR
 Considering the constitutionality of provisions of the RIRR:
- The DOH was tasked under the Administrative Code of 1987 to carry out the state policy under Section
15, Art. II of the Constitution – “to protect and promote the right to health of the people and instil health
consciousness among them”
- On the total ban policy:
 Milk Code does not implement a total ban policy; such policy can only be implement through a law
amending the Milk Code passed by the constitutionally authorized branch of government, the
legislature
 RIRR provided for total ban on advertising; however, respondent admits that such total ban is not
operational and still recognizes the authority of the IAC
- On the imposition of fines/penalties:
 The Milk Code has no provision regarding imposition of penalties
 Neither the Milk Code nor the Revised Administrative Code grants DOH the authority to fix or
impose administrative fines; DOH only means to enforce its rules and regulations is to cause the
prosecution of violators of the Milk Code
 In fine, only Sections 4 (f), 11, and 46 are declared null and void
- Ultra vires (beyond one’s legal power or authority)
- Beyond the authority of the DOH to promulgate and in contravention of the Milk Code
- Sections 4 (f) and 11 of the RIRR are inconsistent with the Milk Code
 Milk Code does not totally prohibit promotion/advertisement of breast milk substitute products)
- Section 46, imposing fines/penalties, is likewise declared unconstitutional;
 RIRR not in restraint of trade
- Trade must be subjected to some form of regulation for the public good
- Public interest and general welfare must be upheld over private/business interests
Page 2 of 3
CASE DIGEST
PHAP v. Duque
Constitutional Law
RULING:
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4 (f), 11, and 46 of the RIRR dated May 12, 2006 are
declared NULL and VOID for being ultra vires. The DOH and respondents are PROHIBITED from implementing said
provisions.
The TRO issued on Aug. 15, 2006 is LIFTED insofar as the rest of the provisions of the RIRR are concerned.
Page 3 of 3

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CASE DIGEST

Date October 9, 2007

Art. VII, Sec. 21

Art. II, Sec. 2

ISSUE – HELD – RATIO:

2) WON the pertinent international agreements entered into by the PH are NO

4. International Code of Marketing of Breast milk Substitutes (ICMBS)

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