Académique Documents
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NOTE:
TRADEMARK LAW
SUMMARY: Case is about the constitutionality of RA 7716. The Court Petitioners’ contentions are wrong.
here characterized the treaty-ratifying power of the Senate as not an It is not the law — but the revenue bill — which is required by the
exercise of legislative power, but a check on the executive. Constitution to "originate exclusively" in the House of
Representatives.
DOCTRINE: The exercise of the treaty-ratifying power is not the A bill originating in the House may undergo such extensive
exercise of legislative power. It is the exercise of a check on the changes in the Senate that the result may be a rewriting of the
executive power. whole. The possibility of a third version by the conference
committee will be discussed later.
FACTS: What is important to note is that, as a result of the Senate action,
The case is about the assailed constitutionality of RA 7716 which a distinct bill may be produced. To insist that a revenue statute —
widened the tax base of the existing VAT system and enhance its and not only the bill which initiated the legislative process
administration by amending the NIRC. culminating in the enactment of the law — must substantially be
Petitioners’ argument is that RA 7716 did not originate from the the same as the House bill would be to deny the Senate's power
House of Representatives – as mandated by the constitution for not only to "concur with amendments" but also to "propose
revenue bills – because it is a result of two consolidated bills from amendments." It would be to violate the coequality of legislative
the House of Representatives and the Senate power of the two houses of Congress and in fact make the House
o Art. VI, § 24: All appropriation, revenue or tariff bills, bills superior to the Senate.
authorizing increase of the public debt, bills of local The contention that the constitutional design is to limit the
application, and private bills shall originate exclusively in Senate's power in respect of revenue bills in order to compensate
the House of Representatives, but the Senate may propose for the grant to the Senate of the treaty-ratifying power and
or concur with amendments. thereby equalize its powers and those of the House overlooks the
o Id., § 26(2): No bill passed by either House shall become a fact that the powers being compared are different. We are dealing
law unless it has passed three readings on separate days, here with the legislative power which under the Constitution is
and printed copies thereof in its final form have been
vested not in any particular chamber but in the Congress of the
distributed to its Members three days before its passage,
except when the President certifies to the necessity of its Philippines, consisting of "a Senate and a House of
immediate enactment to meet a public calamity or Representatives." 4 The exercise of the treaty-ratifying power is
emergency. Upon the last reading of a bill, no amendment not the exercise of legislative power. It is the exercise of a check
thereto shall be allowed, and the vote thereon shall be on the executive power. There is, therefore, no justification for
taken immediately thereafter, and comparing the legislative powers of the House and of the Senate
the yeas and nays entered in the Journal. on the basis of the possession of such nonlegislative power by the
Senate substituted the bill
Senate. The possession of a similar power by the U.S. Senate 5 has
Petitioners contend that said constitutional mandate is a limitation to the never been thought of as giving it more legislative powers than the
treaty-making power of the Senate, and to equalize powers between the House of Representatives.
two houses of Congress. They point out that although Art. VI, SS 24 was Nor does the Constitution prohibit the filing in the Senate of a
substitute bill in anticipation of its receipt of the bill from the
adopted from the American Federal Constitution, 2 it is notable in two
House, so long as action by the Senate as a body is withheld
respects: the verb "shall originate" is qualified in the Philippine
pending receipt of the House bill. The Court cannot, therefore,
Constitution by the word "exclusively" and the phrase "as on other bills" in understand the alarm expressed over the fact that on March 1,
the American version is omitted. This means, according to them, that to be 1993, eight months before the House passed H. No. 11197, S. No.
considered as having originated in the House, Republic Act No. 7716 must 1129 had been filed in the Senate. After all it does not appear that
retain the essence of H. No. 11197. the Senate ever considered it. It was only after the Senate had
received H. No. 11197 on November 23, 1993 that the process of
legislation in respect of it began with the referral to the Senate
Committee on Ways and Means of H. No. 11197 and the
submission by the Committee on February 7, 1994 of S. No. 1630.
For that matter, if the question were simply the priority in the time
of filing of bills, the fact is that it was in the House that a bill (H.
No. 253) to amend the VAT law was first filed on July 22, 1992.
Several other bills had been filed in the House before S. No. 1129
was filed in the Senate, and H. No. 11197 was only a substitute of
those earlier bills.
The Secretary of Justice denied such request on the following
Secretary of Justice vs Lantion grounds:
o It was premature to secure Jimenez with copies prior to
FACTS: (Copied and tweaked facts from an online digest) the completion of the evaluation. The DOJ was still
1977, Marcos issued Presidential Decree No. 1069 "Prescribing the evaluating whether the procedures and requirements under
Procedure for the Extradition of Persons Who Have Committed the relevant law (PD 1069 Philippine Extradition Law) and
Crimes in a Foreign Country". Founded on treaty (RP-US Extradition Treaty) have been complied with
o The doctrine of incorporation under the Constitution by the Requesting Government. (Article 7 of the extradition
o The mutual concern for the suppression of crime both in treaty and Sec. 4 of PD no 1069
the state where it was committed and the state where the o Evaluation by the DOJ of the documents is not a
criminal may have escape preliminary investigation like in criminal cases making
o The extradition treaty with the Republic of Indonesia and the constitutionally guaranteed rights of the accused in
the intention of the Philippines to enter into similar treaties criminal prosecution inapplicable
with other interested countries o The U.S. requested for the prevention of unauthorized
o The need for rules to guide the executive department and disclosure of the information in the documents
the courts in the proper implementation of said treaties. o The department is not in position to hold in abeyance
1994, Drilon, representing the Government of the Republic of the
proceedings in connection with an extradition request, as
Philippines, signed in Manila the "Extradition Treaty Between the
Philippines is bound to Vienna Convention on law of treaties
Government of the Republic of the Philippines and the Government
of the United States of America" (hereinafter referred to as the RP- such that every treaty in force is binding upon the parties.
US Extradition Treaty). Mark Jimenez then filed a petition for mandamus, certiorari, and
Senate ratified the treaty prohibition against the Secretary of Justice with the RTC of Manila.
o Expressed its concurrence in the Diplomatic Notes Respondent Judge Lantion ordered the Secretary of Justice
correcting Paragraph (5)(a), Article 7 thereof (on the to issue a copy of the requested papers, as well as refrain
admissibility of the documents accompanying an from conducting further proceedings.
extradition request upon certification by the principal ISSUE: W/N private respondent is entitled to the due process right
diplomatic or consular officer of the requested state to notice and hearing during the evaluation stage of the extradition
resident in the Requesting State). K process » YES. Private respondent’s due process rights, although not
1999 The Department of Justice received a request from the guaranteed by statute or by treaty, are protected by constitutional
Department of Foreign Affairs for the extradition of private guarantees.
respondent Mark Jimenez to the U.S. PD 1069, the implementing law of the RP-US Extradition Treaty,
The grand jury indictment, the warrant for his arrest, and other provides when an extraditee shall be furnished a copy of the petition
supporting documents for said extradition were attached along with for extradition as well as its supporting papers, i.e., after the filing
the request. of the petition for extradition in the extradition court. It is of
Jimenez was charged with: judicial notice that the summons includes the petition for extradition
which will be answered by the extraditee.
o Conspiracy to commit offense or to defraud the US
o There is no provision in the RP-US Extradition Treaty and in
o Attempt to evade or defeat tax
PD 1069 which gives an extraditee the right to demand from
o Fraud by wire, radio, or television the Secretary of Justice the said documents while the
o False statement or entries request is still undergoing evaluation and is not yet filed in
o Election contribution in name of another court.
DOJ proceeded with the technical evaluation and assessment of
the RP-US Extradition Treaty. Panel found that "official English
translation of some documents in Spanish were not attached to the MAIN TOPIC - DOCTRINE OF INCORPORATION
request and that there are some other matters that needed to be The Court makes a discussion on this doctrine because the Secretary of
addressed" Justice asserts that since the treaty and our law are both silent as to the
Jimenez requested for copies of all the documents included in the availability of due process rights while the extradition is being evaluated, it
extradition request and for him to be given ample time to assess it must be concluded that due process rights do not apply.
The rule of pacta sunt servanda requires the parties to a treaty to to grant him a reasonable period within which to file his comment with
keep their agreement therein in good faith. The observance of our supporting evidence. The incidents in Civil Case No. 99-94684 having been
country's legal duties under a treaty is also compelled by Section rendered moot and academic by this decision, the same is hereby ordered
2, Article II of the Constitution dismissed.
o Under the doctrine of incorporation, rules of international *The Court later REVERSED its ruling in the Motion for
law form part of the law of the land and no further legislative Reconsideration and ruled that, since an extradition proceeding is
action is needed to make such rules applicable in the sui generis, due process rights will not apply*
domestic sphere NOTES
The doctrine of incorporation is applied when there appears to be a PD 1069, Sec. 6
conflict between a rule of international law and the provisions of the “Sec. 6. Issuance of Summons; Temporary Arrest; Service of Notices. 1)
constitution or statute of the local state. Efforts should first be Immediately upon receipt of the petition, the presiding judge of the court
exerted to harmonize them, so as to give effect to both since shall, as soon as practicable, summon the accused to appear and to answer
it is to be presumed that municipal law was enacted with proper the petition on the day and hour fixed in the order…
regard for the generally accepted principles of international law. 2) The order and notice as well as a copy of the warrant of arrest, if issued,
o In a situation, however, where the conflict is irreconcilable shall be promptly served each upon the accused and the attorney having
and a choice has to be made between a rule of international charge of the case.”
law and municipal law, jurisprudence dictates that
municipal law should be upheld by the municipal
courts (Ichong vs. Hernandez; Gonzales vs. Hechanova; In
re: Garcia)
o Because such courts are organs of municipal law and
are accordingly bound by it in all
The doctrine of incorporation, as applied in most countries, decrees
that rules of international law are given equal standing with, but
are not superior to, national legislative enactments.
o Under the principle of lex posterior derogat priori, a treaty
may repeal a statute and a statute may repeal a treaty.
o In states where the Constitution is the highest law of the
land, like the PH, both statutes and treaties may be
invalidated if they are in conflict with the
Constitution.
Both the RP-US Extradition Treaty and PD 1069 are silent as to the
rights to due process prior to the filing of the petition in court.
Reference to U.S. extradition procedures also manifests this silence.
o In the absence of a law or principle of law, we must apply
the rules of fair play. An application of the basic twin due
process rights of notice and hearing will not go against the
treaty or the implementing law. Neither the Treaty nor the
Extradition Law precludes these rights from a prospective
extraditee.
The Court considered that they needed to look at similar situations
in our jurisprudence for applications by analogy. Thus, they
looked at the nature of an administrative proceeding, where the twin
requirements of notice and hearing are applicable, and the nature
of non-litigous summary proceedings which also uphold due process
rights of a respondent.
WHEREFORE, in view of the foregoing premises, the instant petition is
hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private
respondent copies of the extradition request and its supporting papers, and
Lim V. Executive Secretary (2002) importation and exportation, movement of vessels and aircraft, as
well as the duration of the agreement and its termination. It is the
Lessons Applicable: Locus Standi, International Law v. Muncipal Law, VFA which gives continued relevance to the MDT despite the
Certiorari, Incorporation Clause, Treaties passage of years. Its primary goal is to facilitate the promotion of
Laws Applicable: Constitution optimal cooperation between American and Philippine military
forces in the event of an attack by a common foe.
FACTS: The VFA permits United States personnel to engage, on an
impermanent basis, in "activities," the exact meaning of which was
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, left undefined. The expression is ambiguous, permitting a wide
personnel from the armed forces of the United States of America scope of undertakings subject only to the approval of the Philippine
started arriving in Mindanao to take partin "Balikatan 02-1” on government. The sole encumbrance placed on its definition is
January 2002. couched in the negative, in that United States personnel must
The Balikatan 02-1 exercises involves the simulation of joint "abstain from any activity inconsistent with the spirit of this
military maneuvers pursuant to the Mutual Defense Treaty, a agreement, and in particular, from any political activity." All other
bilateral defense agreement entered into by the Philippines and the activities, in other words, are fair game.
United States in 1951. To aid in this, the Vienna Convention on the Law of Treaties Article
The exercise is rooted from the international anti-terrorism 31 SECTION 3 and Article 32 contains provisos governing
campaign declared by. Bush in reaction to the highjacking in New interpretations of international agreements.
York o Article 31
Arthur D. Lim and Paulino P. Ersando as citizens, lawyers and General rule of interpretation
taxpayers filed a petition for certiorari and prohibition attacking 1. A treaty shall be interpreted in good faith in accordance with the
the constitutionality of the joint exercise. Partylists Sanlakas and ordinary meaning to be given to the terms of the treaty in their
Partido Ng Manggagawa as residents of Zamboanga and Sulu context and in the light of its object and purpose.
directly affected by the operations filed a petition-in-intervention. 2. The context for the purpose of the interpretation of a treaty
o Only in case of armed attack shall comprise, in addition to the text, including its preamble and
o Abu sayaff are not external armed forces annexes:
o VFA of 1999 does not authorize American soliers to engage (a) any agreement relating to the treaty which was made between
in combat operations in the Philippines all the parties in connexion with the conclusion of the treaty;
The Solicitor General commented the prematurity of the action as (b) any instrument which was made by one or more parties in
it is based only on a fear of future violation of the Terms of connexion with the conclusion of the treaty and accepted by the
Reference and impropriety of availing of certiorari to ascertain a other parties as an instrument related to the party.
question of fact specifically interpretation of the VFA whether it is 3. There shall be taken into account, together with the context:
covers "Balikatan 02-1” and no question of constitutionality is (a) any subsequent agreement between the parties regarding the
involved. Moreover, there is lack of locus standi since it does not interpretation of the treaty or the application of its provisions;
involve tax spending and there is no proof of direct personal (b) any subsequent practice in the application of the treaty which
injury. establishes the agreement of the parties regarding its
interpretation;
ISSUE: W/N Balikatan 02-1 is covered by the VFA? (c) any relevant rules of international law applicable in the
HELD: prejudice to the filing of a new petition sufficient in form relations between the parties.
and substance in the proper Regional Trial Court - Supreme Court 4. A special meaning shall be given to a term if it is established
is not a trier of facts that the parties so intended.
MDT – Core of the defense relationship between Philippines and
the US to enhance the strategic and technologival capabilities of o Article 32
our armed forces through joing training. Supplementary means of interpretation
VFA – provides the regulatory mechanism by which the US military Recourse may be had to supplementary means of interpretation,
and civilian personne; may visit temporarily in the Philippines in including the preparatory work of the treaty and the circumstances
connetion with activities by the Philippine Government. ontains of its conclusion, in order to confirm the meaning resulting from
provisions relative to entry and departure of American personnel, the application of article 31, or to determine the meaning when the
driving and vehicle registration, criminal jurisdiction, claims, interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or general. Hence, foreign troops are allowed entry into the
(b) leads to a result which is manifestly absurd or unreasonable. Philippines only by way of direct exception.
It is clear from the foregoing that the cardinal rule of International Law vs. Fundamental Law and Municipal Laws
interpretation must involve an examination of the text, which is Conflict arises then between the fundamental law and our
presumed to verbalize the parties' intentions. The Convention obligations arising from international agreements.
likewise dictates what may be used as aids to deduce the meaning Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that
of terms, which it refers to as the context of the treaty, as well as international law has been made part of the law of the land does
other elements may be taken into account alongside the aforesaid not by any means imply the primacy of international law over
context. According to Professor Briggs, writer on the Convention, national law in the municipal sphere. Under the doctrine of
the distinction between the general rule of interpretation and the incorporation as applied in most countries, rules of international
supplementary means of interpretation is intended rather to law are given a standing equal, not superior, to national
ensure that the supplementary means do not constitute an legislation.”
alternative, autonomous method of interpretation divorced from From the perspective of public international law, a treaty is favored
the general rule. over municipal law pursuant to the principle of pacta sunt
The meaning of the word “activities" was deliberately made that servanda. Hence, "[e]very treaty in force is binding upon the
way to give both parties a certain leeway in negotiation. Thus, the parties to it and must be performed by them in good faith."
VFA gives legitimacy to the current Balikatan exercises. Both the Further, a party to a treaty is not allowed to "invoke the provisions
history and intent of the Mutual Defense Treaty and the VFA of its internal law as justification for its failure to perform a treaty."
support the conclusion that combat-related activities -as opposed Our Constitution espouses the opposing view as stated in section 5
to combat itself -such as the one subject of the instant petition, of Article VIII: “The Supreme Court shall have the following
are indeed authorized. powers: xxx
The Terms of Reference are explicit enough. Paragraph 8 of section (2) Review, revise, reverse, modify, or affirm on appeal or
I stipulates that US exercise participants may not engage in certiorari, as the law or the Rules of Court may provide, final
combat "except in self-defense." ." The indirect violation is judgments and order of lower courts in:
actually petitioners' worry, that in reality, "Balikatan 02-1" is (A) All cases in which the constitutionality or validity of any treaty,
actually a war principally conducted by the United States international or executive agreement, law, presidential decree,
government, and that the provision on self-defense serves only as proclamation, order, instruction, ordinance, or regulation is in
camouflage to conceal the true nature of the exercise. A clear question.”
pronouncement on this matter thereby becomes crucial. Ichong v. Hernandez: “provisions of a treaty are always subject to
In our considered opinion, neither the MDT nor the VFA allow qualification or amendment by a subsequent law, or that it is
foreign troops to engage in an offensive war on Philippine subject to the police power of the State”
territory. Under the salutary proscription stated in Article 2 of the Gonzales v. Hechanova: “our Constitution authorizes the
Charter of the United Nations. nullification of a treaty, not only when it conflicts with the
o 4. All Members shall refrain in their international relations fundamental law, but, also, when it runs counter to an act of
from the threat or use of force against the territorial Congress.”
integrity or political independence of any state, or in any The foregoing premises leave us no doubt that US forces are
other manner inconsistent with the Purposes of the United prohibited / from engaging in an offensive war on Philippine
Nation territory.
Both the Mutual Defense Treaty and the Visiting Forces Whether or not Americans are actively engaging in combat
Agreement, as in all other treaties and international agreements to alongside Filpino soldiers under the guise of an alleged training
which the Philippines is a party, must be read in the context of the and assistance exercise is a question of fact, and therefor cannot
1987 Constitution especially Sec. 2, 7 and 8 of Article 2: be answered by the court.
Declaration of Principles and State Policies in this case.
The Constitution also regulates the foreign relations powers of the
Chief Executive when it 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."
Sec. 25 on Transitory Provisions which shows antipathy towards
foreign military presence in the country, or of foreign influence in
o The petition at bar invokes the power of the Senate to grant or
withhold its concurrence to a treaty entered into by the Executive
Pimentel v. Office of the Executive Secretary Branch. o Sen. Pimentel invokes this power as his basis to compel the
transmittal of the treaty text to the Senate.
Brief Facts: The Philippines has signed the Rome Statute. The Executive 2. NO. There is no ministerial duty for the Executive Branch to
Branch has not yet submitted the signed treaty text to the Senate for its transmit the treaty text of the Rome Statute. Hence, mandamus
concurrence. Hence, the petitioners filed a writ of mandamus to compel will not lie.
the transmittal of the treaty to the Senate. - It is the President who is vested with the sole authority to deal with our
State’s foreign affairs: maintain diplomatic relations, negotiate and enter
into treaties, and otherwise transact the business of foreign relations.
- However, the Constitution provides a limitation to this power: Art. VII,
Sec. 21 provides that “no treaty or international agreement shall be valid
FACTS: and effective unless concurred in by at least two-thirds of all the Members
of the Senate.” o This was deemed as a check on the power of the
- Dec. 28, 2000: The Philippines signed the Rome Statute (which
Executive Branch in the field of foreign relations, as is proper ensuring a
establishes the International Criminal Court), though Charge d’Affairs
“healthy system of checks and balance necessary in the nation’s pursuit
Enrique Manalo of the Philippine Mission to the UN.
of political maturity and growth.”
o The provisions of the Rome Statute, however, required that it
was subject to ratification, acceptance, or approval of the signatory - SC: However, Art. VII, Sec. 21 should NOT be interpreted to mean
that the power to ratify treaties belongs to the Senate.
states.
- The Court, citing the book of Justice Isagani Cruz explains the treaty
- Since the signed text of the treaty was not yet transmitted to the Senate
for ratification, the following petitioners filed a petition for mandamus to process, step by step:
compel the Executive Secretary and the DFA to transmit the said treaty o Negotiation – while the head of state is empowered to do this, it is
text: usually his authorized representatives who carry out this process
o Sen. Pimentel o Rep. Rosales o Signature – the treaty is opened for signing by the parties once terms
had been decided. This, however, does NOT
o Phil. Coalition for the Establishment of the ICC o Civil society
organizations o Bianca and Harrison indicate final consent of the State IN cases where ratification of the
o Students from UP Law treaty is required; it is intended only as a means of authentication and
symbol of good faith. o Ratification – the formal act by which a State
ISSUES: consents to the treaty signed by its representative. It gives the State
1. WON the petitioners have standing (NO, except Sen. Pimentel) the opportunity to examine the terms of the treaty more closely, and
2. WON mandamus will lie (NO) gives it an opportunity to refuse it should it find the terms to be against
its interest. o Exchange of Instruments of the Ratification – usually
RATIO: signifies the effectivity of the treaty, unless a different date has been
1. NO. Only Sen. Pimentel has proper standing for this suit. agreed upon by the parties
- The other petitioners have not alleged that they will sustain a direct
injury from the non-transmittal of the treaty text. - SC: In asking for the transmittal of the treaty text, the petitioners’
o Also, their contention that the non-ratification of the treaty will argument would equate signing with ratification, which are two distinct
deprive them of their remedies for the protection and enforcement of steps.
their rights is untenable - EO 459, Issued by Pres. Ramos, provides the guidelines in the
o Supreme Court: The Rome Statute is intended to complement national negotiation and ratification of international agreements:
criminal laws and courts. There are enough remedies available under o The signed treaty is transmitted to the DFA who shall prepare the
our national laws. ratification papers and forwards them to the President.
- Sen. Pimentel derives his standing from his position as a o The President may then choose to ratify the treaty or not.
legislator, particularly being a Senator. o If the President ratifies the instrument, then the DFA shall submit the
same to the Senate for their concurrence.
- SC: Petitioners’ argument that the Philippines was already bound to ratify
the treaty once it has signed is without basis.
o The President has discretion, even after the signing of the treaty,
whether or not to ratify the treaty.
o “The VCLOT does not contemplate to defeat or even restrain this
power of the heads of States.”
- SC: It should be emphasized that the power to ratify is vested
with the President, subject to the concurrence of the Senate.
o “Hence, it is within the authority of the President to refuse to submit
a treaty to the Senate or, having secured its consent for its
ratification, refuse to ratify it.”
o Such prerogative of the President cannot be encroached by a
writ of mandamus.
Note: I focused on the parts on international law. The other matters (in case
Facts: ma’am asks) are at the bottom of the digest.
- 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 Freedom Constitution. Held: No. However what may be implemented is the RIRR based on the Milk
(1) One of the preambular clauses of TMC – the law seeks to give Code which in turn is based on the ICMBS as this is deemed part of the law
effect to Article 11 of the International Code of Marketing of of the land. The other WHA Resolutions however cannot be imposed as they
Breastmilk Substituttes (ICMBS), a code adopted by the WHA are not deemed part of the law of the land.
(World Health Assembly) in 1981.
- In 1990, the Philippine ratified the International Convention on the
Rights of the Child. Art. 24 of the instrument mandates that States
should take measure to diminish infant mortality and should ensure Ratio:
that all segments of society are informed of the advantages of
1. Are the international instruments referred to by the respondents part of
breastfeeding.
the law of the land?
- From 1982 – 2006, the WHA adopted several resolutions to the effect
- The various international instruments invoked by respondents are:
that breastfeeding should be supported, promoted and protected,
(1) The UN Conventions on the Rights of the Child
hence, it should be ensured that nutrition and health claims are not
(2) The International Convenant on Economic, Social, and Cultural
permitted for breastmilk substitutes.
Rights
- May 15, 2006 – DOH issues the assailed RIRR (Revised Implementing
(3) Convention on the Elimination of All Forms of Discrimination
Rules and Regulations of E.O. 51 or A.O. No. 2006-0012) which was to
Against Women
take effect on July 7, 2006. – The RIRR imposes a ban on all
- These instruments only provide general terms of the steps that States
advertisements of breastmilk substitutes
must take to prevent child mortality. Hence, they do not have anything
- June 28, 2006 – Petitioner filed the present Petition for Certiorari and
about the use and marketing of breastmilk substitutes
Prohibition with Prayer for the Issuance of a TRO or Writ of Preliminary
injunction.
- The ICMBS and other WHA Resolutions however, are the international
- August 15, 2006 – the Court issued a Resolution granting the TRO,
instruments which have specific provisions on breastmilk substitutes
enjoining the respondents from implementing the assailed RIRR.
- Under the 1987 Constitution, international law can become part of
- Petitioner assails the RIRR for going beyond the provisions of TMC
domestic law in 2 ways:
thereby amending and expanding the coverage of the said law.
(1) Transformation – an international law is transformed into a
- DOH meanwhile contends that the RIRR implements not only TMC but
domestic law through a constitutional mechanism such as local
also various international instruments regarding infant and young child
legislation
nutrition. They posit that the said international instruments are
Treaties become part of law of the land through this method,
pursuant to Art 7, Sec 21 – wherein “no treaty or international 2. Since the WHA Resolutions have not been embodied in any local
agreement shall be valid.. unless concurred by at least 2/3 of legislation, have they attained the status of customary law and hence
Senate” part of our law of the land?
The ICMBS and WHA Resolutions are NOT treaties as they - The World Health Organization (WHO) is one of the international
haven’t been concurred in by the required 2/3 vote. specialized agencies of the UN.
HOWEVER, the ICMBS has been transformed into domestic law - According to the WHO Constitution, it’s the WHA which determines the
through local legislation that is TMC. policies of the WHO, the former also has the power to “adopt
Therefore, it is not the ICMBS per se that has the force regulations concerning advertising and labeling of pharmaceutical and
of law but it’s TMC. similar products” and “to make recommendations to members on any
o While TMC is almost a verbatim reproduction of the matter within the Organization’s competence”
ICMBS, it did not adopt the latter’s provision on the - Note that the legal effect of a regulation as opposed to
absolute prohibition on advertising of products within recommendation is quite different
the scope of the ICMBS. Instead the MC provides that (1) Regulations which are duly adopted by the WHA are binding on
advertising promotion or other marketing materials member states
may be allowed if such materials are approved by a (2) On the other hand, recommendations of the WHA do not come into
committee. force for its members unlike regulations. Rather, they carry moral
(2) Incorporation – by mere constitutional declaration, international and political weight as they constitute the judgment on a health
law is deemed to have the force of domestic law issue of the collective membership of the highest body in the field
This is found under Art 2, Sec 2 – The Philippines… adopts of health.
generally accepted principles of international law as part of the - The WHA resolution adopting the ICMBS and the subsequent WHA
law of the land resolutions urging states to implement the ICMBS are merely
In Mihares v. Ranada: International law becomes customary recommendatory and legally non-binding.
rules accepted as binding as a result of two elements: - Hence, unlike the ICMBS which has become TMC through legislative
1.) Established, widespread, and consistent practice on part of enactment, the subsequent WHA Resolutions, which provide for
the state exclusive breastfeeding and prohibition on advertisements and
2.) Opinion juris sive necessitates (opinion as to law or promotions of breastmilk have not been adopted as domestic law.
necessity. - WHA Resolutions have been viewed to constitute “soft law” or non-
Generally accepted principles of international law refer to binding norms, which influence state behavior. Soft law has been noted
norms of general or customary international law which are to be a rapid means of norm creation, in order to reflect and respond
binding on all states, valid through all kinds of human societies, to the changing needs and demands of constituents (of the UN.)
and basic to legal systems generally - As previously discussed, for an international rule to be considered
Fr. Bernas has a definition similar to the one above. Customary customary law, it must be established that such rule is followed by
international law has two factors: states because it is considered obligatory (opinio juris).
1.) Material factor – how states behave - In the case at bar, respondents have not presented any evidence to
The consistency and the generality of the practice prove that the WHA Resolutions are in fact enforced or practice by
2.) Psychological or subjective factor – why they behave the member states. Further, they failed to establish that provisions of
way they do pertinent WHA Resolutions are customary international law that may
Once state practice has been established, now be deemed part of law of the land.
determine why they behave they do. Is it ouor of - Hence, legislation is necessary to transform the WHA resolutions into
courtesy or opinio juris (the belief that a certain type of domestic law. They cannot thus be implemented by executive agencies
behavior is obligatory) without the need of a law to be enacted by legislature.
When a law satisfies the two factors it becomes part of
customary international law which is then incorporated into On other issues:
our domestic system W/n the petitioner is the real party in interest? Yes.
- An association has standing to file suit for its workers despite its lack imposes an absolute ban on advertising and promotion for breastmilk
of direct interest of its members are affected by the action. An substitutes; [4] requiring additional labeling requirements; [5]
organization has standing to assert the concerns of its constituents. prohibits the dissemination of information on infant formula; [6]
(Exec Sec vs CA) forbids milk manufacturers and distributors to extend assistance in
- The Court has rules that an association has the legal personality to research and continuing education Although the DOH has the power
represent its members because the results of the case will affect their under the Milk Code to control information regarding breastmilk vis-à-
vital interests. (Purok Bagong Silang Association Inc. vs. Yuipco) vis breastmilk substitutes, this power is not absolute because it has no
- In the petitioner’s Amended Articles of Incorporation, it states that the power to impose an absolute prohibition in the marketing, promotion
association is formed “to represent directly or through approved and advertising of breastmilk substitutes. Several provisions of the
representatives the pharmaceutical and health care industry before the Milk Code attest to the fact that such power to control information is
Philippine Government and any of its agencies, the medical professions not absolute.
and the general public.” - Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code
- Therefore, the petitioner, as an organization, has an interest in fulfilling because such provisions impose an absolute prohibition on advertising,
its avowed purpose of representing members who are part of the promotion and marketing of breastmilk substitutes, which is not
pharmaceutical and health care industry. Petitioner is duly authorized provided for in the Milk Code. Section 46 is violative of the Milk Code
to bring to the attention of the government agencies and courts any because the DOH has exceeded its authority in imposing such fines or
grievance suffered by its members which are directly affected by the sanctions when the Milk Code does not do so. Other assailed provisions
assailed RIRR. are in accordance with the Milk Code.
- The petitioner, whose legal identity is deemed fused with its members,
should be considered as a legal party-in-interest which stands to be
benefited or injured by any judgment in the case. W/n Section 13 of the RIRR providing a sufficient standard? Yes.
- Assailed provisions: [1] extending the coverage to young children; [2] W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process
imposing exclusive breastfeeding for infants from 0-6 months; [3] clause of the Constitution (Article III Section 1)?
- Despite the fact that the present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare… free
enterprise does not call for the removal of protective regulations. It
must be clearly explained and proven by competent evidence just
exactly how such protective regulation would result in the restraint of
trade.
- Section 4 – proscription of milk manufacturers’ participation in any
policymaking body; Section 22 – classes and seminars for women and
children; Section 32 – giving of assistance, support and logistics or
training; Section 52 – giving of donations
- In the instant case, petitioner failed to show how the aforementioned
sections hamper the trade of breastmilk substitutes. They also failed
to establish that these activities are essential and indispensable to their
trade.