of the Philippines vs. Duque III (Austria-Martinez, October 9, 2007) Nature: Special Civil Action in the Supreme Court. Certiorari Petitioner: Pharmaceutical and Healthcare Association of the Philippines Respondents: DOH Sec. Francisco Duque III, DOH Undersecretaries Dr. Ethelyn Nieto,Dr. Margarita Galon, Atty. Alexander Padilla and Dr. Jade Del Mundo; and Asst.Secret aries Dr. Mario Villaverde, Dr. David Lozada and Dr. Nemesio Gako Facts: - Executive Order No. 51 (The Milk Code - TMC) was issued by Pres. Aquino on Oct.28, 1986 by virtue of the legislative powers granted to her under the FreedomConstitution. (1) One of the preambular clauses of TMC the law seeks to give effect to Article11 of the International Code of Marketing of Breastmilk Substituttes (ICMBS),a code adopted by the WHA (World Health Assembly) in 1981. - In 1990, the Philippine ratified the International Convention on the Rights of theChild. Art. 24 of the instrument mandates that States should take measure todiminish infant mortality and should ensure that all segments of society areinformed of the advantages of breastfeeding.- From 1982 2006, the WHA adopted several resolutions to the effect thatbreastfeeding should be supported, promoted and protected, hence, it should beensured that nutrition an d health claims are not per mitted for breastmilksubstitu tes. - May 15, 2006 DOH issues the assailed RIRR (Revised Implementing Rules andRegulations of E.O. 51 or A.O. No. 2006-0012) which was to take effect on July 7,2006. The RIRR imposes a ban on all advertisements of breastmilk substitutes-June 28, 2006 Petitioner filed the present Petition for Certiorari and Prohibitionwith Prayer for the Issuance of a TRO or Writ of Preliminary injunction.-August 15, 2006 the Court issued a Resolution granting the TRO, enjoining therespondents from implementing the assailed RIRR.- Petitioner assails the RIR R for going beyond the provisions of TMC therebyamending and expanding the coverage of the said law. - DOH meanwhile contends that the RIRR implements not only TMC but also variousinternational instruments regarding infant and young child nutrition. They positthat the said international instruments are deemed part of the law of the land andtherefore may be implemented by the DOH in the RIRR. Issue: W/n the RIRR is unconstitutional? Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent internationalagree ments entered into by the Philippines are part of the law of the land and may thusbe implemented through an RIRR, if so, is the RIRR in accord with such internationalagreements?Not e: I focused on the parts on international law. The other matters (in case maamasks) are at the bottom of the digest. Held: No. However what may be implemented is the RIRR based on the Milk Codewhich in turn is based on the ICMBS as this is deemed part of the law of the land. Theother WHA Resolutions however cannot be imposed as they are not deemed part of thelaw of the land. Ratio: 1.Are the international instruments referred to by the respondents part of the law of the land?-The various international instruments invoked by respondents are:(1)The UN Conventions on the Rights of the Child (2) The International Convenant on Economic, Social, and Cultural Rights(3)Convention on the Elimination of All Forms of Discrimination Against Women - These instruments only provide general terms of the steps that States must taketo prevent child mortality. Hence, they do not have anything about the use andmarketing of breastmilk substitutes - The ICMBS and other WHA Resolutions however, are the international instrumentswhich have specific provisions on breastmilk substitutes-Under the 1987 Constitution, international law can become part of domestic lawin 2 ways:(1)Transformation an international law is transformed into a domestic lawthrough a constitutional mechanism such as local legislation
Treaties become part of law of the land through this method, pursuant toArt 7, Sec 21 wherein no treaty or international agreement shall bevalid.. unless concurred by at least 2/3 of Senate
The ICMBS and WHA Resolutions are NOT treaties as they havent beenconcurred in by the required 2/3 vote.
HOWEVER, the ICMBS has been transformed into domestic law throughlocal legislation that is TMC.
Therefore, it is not the ICMBS per se that has the force of law butits TMC. o While TMC is almost a verbatim reproduction of the ICMBS, it didnot adopt the latters provision on the absolute prohibition onadvertising of products within the scope of the ICMBS. Insteadthe MC provides that advertising promotion or other marketingmaterials may be allowed if such materials are approved by acommittee. (2) Incorporation by mere constitutional declaration, international law isdeemed to have the force of domestic law
This is found under Art 2, Sec 2 The Philippines adopts generallyaccepted principles of international law as part of the law of the land
Marilyn W. Pearson, As Administratrix of The Goods, Chattels, and Credits of John S. Pearson, Deceased v. Northeast Airlines, Inc., 307 F.2d 131, 2d Cir. (1962)