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Making a clean breast of it

(Article published in the Oct. 17, 2007 issue of Manila Standard Today)  

            I make no bones about it; I am a professed breast man.  My preferred part of the chick’s edible anatomy is not leg, or thigh, or wing, but breast. Max’s does it best, but anyway chicken breast is prepared, it gives joy to my mouth.  And I put my feet where my mouth is.

 Two Sundays ago, on 07 October 2007, I joined the Takbo! Breast Friends organized by Soroptimist Ortigas and CNetwork and ran in the 5K leg of the very cruel race course of the Pasig City Runners Club.  That entailed running down Julia Vargas Avenue and running up the steep Canley Road, the uphill effort exacerbated by the need to resist the temptation of stopping at one of the inviting establishments in the area.  All in support of the Soroptimist Ortigas’ and CNetwork’s common fight against breast cancer.

 I am for giving nature the maximal utilization of the mammary glands and so, I am all for breast feeding, too.  Being one of its fortuitous beneficiaries. Conceived and born in the darkest days of the World War II, two years after Douglas MacArthur left Bataan for the safety of Australia and two years before the returning Americans finished reducing the churches of Manila to ruins in order to flush out the retreating Japanese, I had to be breast feed by my mother.  Her only other alternative was the only then available milk-substitute that she called “am.” 


   Hence, it was with mixed reactions that I received the Supreme Court’s decision that came out two days after Takbo! In Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque, G.R. No. 173034, promulgated 09 October 2007, the Supreme Court, with Justice Ma. Alicia Austria-Martinez as the ponente, declared Administrative Order No. 2006-0012 dated May 12, 2006  as legally healthy as mother’s milk except for Sections 4(f), 11 and 46 which were struck down for being ultra vires.

 Administrative Order (A.O.) No. 2006-0012 is known as the Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The “Milk Code,” Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).  Pharmaceutical and Health Care Association of the Philippines maintains that the A.O. is void because, in seeking to implement not only domestic legislation but also “relevant international agreements,” it went beyond the provisions of the Milk Code and thus in fact unconstitutional as a whole.

 The prejudicial issue of whether an A.O. may implement an international agreement or norm the Supreme Court resolved by explaining the two ways of how international agreements, meaning both treaties and generally accepted principles of international law, became part of the law of the land as mandated by Section 2 of Article II of the Constitution.  The first is by transformation; the second by incorporation.  Transformation occurs when an international agreement is made to go through a process by which it becomes part of local law.  Under the constitution, one such process is the Senate concurring with at least two-thirds of its members voting affirmatively.  Another is when an international norm is enacted into law like any other piece of local legislation.  The Milk Code, having been issued by President Corazon Aquino on 28 October 1986 when she still had lawmaking authority, is an example of this kind of transformation.

 Incorporation, on the other hand, needs no positive act of local legislation.  All that is required is that an international norm be an established, widespread, and consistent practice of states and that said states observe it because they consider said norm as binding on them.  An example is the renunciation of war as an instrument of national policy. 

 A.O. No. 2006-0012 was thus to be tested against the standard of whether it implemented the law (local statute and properly transformed or incorporated international law) within bounds of the Constitution.  After a quick analysis, the Supreme Court came to the conclusion that, when everything was said and done, only the provisions of the Milk Code (which transformed into local statute most of the provisions of the International Code of Marketing of Breastmilk Substitutes) but not those of the subsequent resolutions of the World Health Assembly may be validly implemented by the Department of Health through A.O. No. 2006-0012.

 Pharmaceutical and Health Care Association of the Philippines objected to more than fifteen sections of A.O. No. 2006-0012 and was able to get the Supreme Court to strike down only three.  By the same argument that enabled my esteemed friend, Rene Saguisag, to maintain with a straight face that the conviction of Erap by the Sandigan Bayan of the crime of plunder was not so bad a performance by his defense team (considering that the when the prosecution started so many charges, subsequently dismissed, have been hurled against their client) it could be said that the government did win the case.

 The provisions of A.O. No. 2006-0012 that were held null and void were Sections 4(f), 11 and 46. Section 4(f) and Section 11 were clearly contrary to the Milk Code because they prohibited the “advertising, promotions, or sponsorship of infant formula, breastmilk substitutes and other related products” whereas on the contrary the Milk Code, under Section 6(a), merely required that they be “duly authorized and approved by an interagency committee.”

 Section 46 which provides for administrative sanctions is likewise out of bounds because neither the Milk Code nor the Administrative Code, which deals with the powers of administrative agencies in general, grants the Department of Health the authority to fix or impose administrative fines.  But to the agency’s comfort, the Supreme Court hastened to add that the Department of Health was not without means to enforce its rules and regulations.  All it has to do, following Section 12(b) (3) of the Milk Code, is to “cause the prosecution of the violators of this Code and other pertinent laws on products covered by this Code.”

 I am happy with the win-win solution of the Supreme Court.  The breast milk manufacturers can continue pushing their products provided they follow the Milk Code subjecting their ads to the good judgment of the DOH.  And the breast lovers, like myself, can continue with our cause-oriented activities of eating and running, wearing at all times the breastplate of conviction that nothing can substitute for the real thing.