Residuos Sólidos Urbanos Caracterización

Philippines vs Duque

Peennaalliizziinng g VViioollaattiioonns s TThheerreeooff, , aannd d fofor r OOththeer r

Purposes

Purposes(RIRR). Petitioner says it is not valid as it contains(RIRR). Petitioner says it is not valid as it contains unconstitutional provisions and it goes beyond the law it is unconstitutional provisions and it goes beyond the law it is supposed to implement.

supposed to implement.

The said RIRR contains, among others, an absolute prohibition The said RIRR contains, among others, an absolute prohibition on advertisements of infant formula, breastmilk substitutes and on advertisements of infant formula, breastmilk substitutes and other related products.

other related products.

Note: This is a long case under the COMMERCIAL SPEECH

heading. However, the main opinion does not say anything at

all about commercial speech. What is more at point is the

separate and concurring opinion. So, maybe you could skip

the e whwholole e mamain in opopininioion n anand d jujust st reread ad ththe e sesepapararate te anand d

concurring opinion digest.

concurring opinion digest. 

FACTS:



 ExeExecucutivtive Orde Order Noer No. 51 (Mi. 51 (Milk Colk Codede) was is) was issusued byed by Pres. Cory Aquino on Oct 28, 1986 by virtue of the Pres. Cory Aquino on Oct 28, 1986 by virtue of the legisl

legislative powers granted to ative powers granted to the president under thethe president under the Freedom Consti

Freedom Consti o

o OnOne of the of the pre preaeambmbulular clar clauauseses of this of this laws law se

seeeks ks to to ggiive ve eeffffeecct t tto o AArrt t 111 1 oof f tthhee In

Intteerrnnaattiioonnaal l CCoodde e oof f MMaarrkkeettiinng g oof f Bre

Breasastmitmilk lk SuSubsbstitituttutes es (IC(ICMBSMBS), ), a a cocodede ad

adopopteted d by by the the WoWorlrld d HeHealalth th AsAssesemblmblyy (WHA) in 1981

(WHA) in 1981 o

o WHWHA adaA adaptpted seved severeral real resosolulutitionons s to theto the ef

effefect ct ththat at brbreaeaststfefeedediing ng shshouould ld bebe supported, promoted and protected, hence, it supported, promoted and protected, hence, it should be ensured that nutrition and health should be ensured that nutrition and health cl

claiaims ms arare e nonot t pepermirmittetted d fofor r brbreaeaststmilmilkk substitutes.

substitutes. 

 In 19In 1990, Ph90, Phil ril ratiatifiefied the Ind the Interternatnationional Coal Convenventintion onon on the Rights of the Child Art 24 of which states that the Rights of the Child Art 24 of which states that State Parties should take

State Parties should take appropappropriate measures toriate measures to diminish infant and child mortality, and ensure that all diminish infant and child mortality, and ensure that all segments of society, specially parents and children, segments of society, specially parents and children, are informed of the advantages of breastfeeding. are informed of the advantages of breastfeeding. 

 In 2In 200006, D6, DOH iOH issssueued thd the ase assasaililed Red RIRRIRR 

 PetiPetitiotioner cner contontendends thas that DOH t DOH vioviolatlated thed the Cone Consti asti andnd exceeded its authority when it issued said RIRR exceeded its authority when it issued said RIRR

ISSUES:

1.. SSttaannddiinngg

HELD:

YESYES 

 JurJurispisprudrudencence state states thes that an aat an assossociaciatiotion has sn has stantandindingg to file suit for its workers despite its lack of direct to file suit for its workers despite its lack of direct int

intereerest st if if its memberits members s are affecare affected by ted by the actiothe actionn (Exec. Sec. v. CA); that it has the legal personality to (Exec. Sec. v. CA); that it has the legal personality to rep

represresent ent its its memmemberbers s becbecausause e the resulthe results ts of of thethe case will affect their vital interests

case will affect their vital interests 

Cancel Anytime.

| Constitutional Law 2 | Dean Marvic M.V.F. Leonen | Compilation of Digests | C2014| Constitutional Law 2 | Dean Marvic M.V.F. Leonen | Compilation of Digests | C2014

o ThThe dee defefensnse of the of the DOe DOH is thH is that tat the Rhe RIRIRRR implements not only the Milk Code but also implements not only the Milk Code but also variou

various s interninternationational al instruinstruments ments regardregardinging infant and young child nutrition

infant and young child nutrition o o UnUndeder r ththe e 191987 87 CoConsnstititututitionon, , ininteternrnatatioionanall la law w cacan n bebecocome me papart rt of of ththe e spsphehere re of of d doommeessttiic c llaaw w eeiitthheer r by

transformationtransformation

or or

incorporationincorporation

.. 

 ThThe trae transnsforformatmatioion metn methohod reqd requiuireress th

thaat t aan n iinnteternrnaatitioonnaal l llaw aw bbee tra

transnsforformed med ininto to a a dodomemestistic c lawlaw through a constitutional mechanism through a constitutional mechanism such as local legislation.

such as local legislation.   ThThe e inincocorprpororatatioion n memeththod appod applilieses wh whenen, , by by memere re coconsnstititututitiononalal de declclararatatioion, n, ininteternrnatatioionanal l lalaw w isis d deeeememed d tto o hhaavve e tthhe e foforrcce e oof f domestic law. domestic law. o

o TTrereatatieies becs becomome pae part ort of the lf the law oaw of the lf the lanandd through

through

transformationtransformation

purpursuasuant nt to to ArtiArticlecle VII, Sectio

VII, Section n 21 21 of of the Constithe Constituttution whichion which provid

provides es that â€œ[n]o that â€œ[n]o treaty or treaty or interninternationaationall agreement shall be valid and effective unless agreement shall be valid and effective unless concurred in by at least two-thirds of all the concurred in by at least two-thirds of all the members of the Senate

members of the Senate 

 ThThe ICe ICMBMBS anS and WHd WHA RA Resesololututioionsns are not treaties as they have not are not treaties as they have not been concurred in by at least two- been concurred in by at least two- thirds of all members of the Senate thirds of all members of the Senate as

as rereququirired ed unundeder r SeSectctioion n 2121,, Article VII of the 1987 Constitution. Article VII of the 1987 Constitution. 

 HHowoweevveerr, , ththe e IICCMBMBS S wwhhiich ch wwaass adopted by the WHA in 1981 had adopted by the WHA in 1981 had been transformed into domestic law been transformed into domestic law thro

through ugh loclocal al leglegislislatiation, on, the the MilMilkk Code. Consequently, it is the Milk Code. Consequently, it is the Milk Code that has the force and effect Code that has the force and effect of law in this jurisdiction and not the of law in this jurisdiction and not the ICMBS

ICMBS per se per se.. 

 ThThe Mie Milk lk CoCode ide is als almosmost a vt a vererbabatimtim reproduction of the ICMBS, but the reproduction of the ICMBS, but the Code did not adopt the provision in Code did not adopt the provision in the

the

ICMBS absolutely prohibitingICMBS absolutely prohibiting

advertising

oor r ootthheer r ffoorrmms s oof f promotion to the general public of promotion to the general public of pro

producducts ts witwithin the hin the scopscope e of of thethe ICMB

ICMBS. S. InstInsteadead,,

ththe e

MiMilk lk

CoCodede

e

exxpprreesssslly y

pprroovviiddees s

tthhaatt

advertising, promotion, or other

ma

markrketetining g

mamateteririalals s

mamay y

bebe

allowed if such materials are duly

authorized and approved by the

Inter-Agency Committee (IAC).

o SeSectiction 2on 2, Ar, Artiticlcle II of te II of the 1he 198987 Co7 Consnstititututitionon embodies the

embodies the

incorporationincorporation

methodmethod 

 TThhee

clclasassisicacal l

foformrmululatatioion n

inin

i

inntteerrnnaattiioonnaal l

llaaw w

sseeeess

those

those custocustomary mary rulerules s

accepacceptedted

a

as s

bbiinnddiinng g rreessuullt t

ffrroom m

tthhee

latter element is a

belief that thebelief that the

practice in question is rendered

obligatory by the existence of a

rule of law requiring it



 BBeerrnnaas s ddeeffiinnees s ccuussttoommaarryy international law to mean a general international law to mean a general and

and conconsissistentent t prapractictice ce of of stastatestes followed by them from a sense of followed by them from a sense of legal

legal obligobligation ation [[opiopinio nio jurjurisis].].

ThisThis

statement contains the two basic

elements of custom: the

material material

factor

, ,

tthhaat t

iiss, ,

hhoow w

ssttaatteess

beh

behaveave, ,

and and

the the

psypsychochologlogicaicall

or

subjective factor subjective factor

, that is, why, that is, why

they behave the way they do.

The initial factor for determining the The initial factor for determining the exi

existestence of nce of cuscustom is tom is the actualthe actual beh

behaviavior or of of statstates. es. ThiThis s incincludludeses s

seevveerraal l eelleememennttss: : dduurraattiioonn,, consis

consistencytency, , and generality of and generality of thethe practice of states.

practice of states.

The required duration can be either The required duration can be either short or long.

short or long.

Duration therefore is not the most Duration therefore is not the most important element. More important important element. More important i

is s tthhe e ccoonnssiisstteennccy y aannd d tthhee generality of the practice.

generality of the practice.

Once the existence of state practice Once the existence of state practice has been

has been establestablishedished, , it becomesit becomes necessary to determine why states necessary to determine why states behave the way they do. Do states behave the way they do. Do states b beehhaavve e tthhe e wwaay y tthheey y ddoo because because

tthheey y

ccoonnssiiddeer r

iitt

obligatory

to to bebehahave ve ththus us or or dodo they

they

do do iit t

ononly ly as as a a

mmatatteter r

of of

courtesy?

OpiOpinio nio jurjurisis

, ,

oor r

tthhee

be

belilief ef

ththat at a a

cecertrtaiain n

foform rm

of of

beh

behaviavior or

is is oblobligaigatortory, y, is is

whawhatt

make

makes s

practpractice ice an an interinternationationalnal

rule.

Without it, practice Without it, practice is not law.is not law. o

o HaHave WHve WHA RA Resesololutiutionons atts attaiainened the sd the stattatus ous of f customary law and should be deemed as customary law and should be deemed as part of the law of the land?

part of the law of the land? 

 UnUndeder thr the 19e 1946 W46 WHO CHO Cononststi, Wi, WHAHA determines the policies of WHO determines the policies of WHO 

 SSeevveerraal l pprroovviissiioonns s ((AArrt t 1199--2222)) states that

states that

regulationsregulations

adopteadopted d byby WHA bind member states

WHA bind member states 

 BBuut t AArrt t 223 3 ssttaattees s tthhaatt

recommendations

of the WHA doof the WHA do not come into force for members. not come into force for members. They are not binding but they carry They are not binding but they carry moral and political weight

moral and political weight 

 ThThe ICe ICMBMBS itS itseself wlf was aas adodoptpted aed as as a mere recommendation

In document II PERFIL DE EMISIONES DE ROSARIO. 2. Antecedentes Institucionales (página 185-190)