Sunday, November 1, 2009

The Cheap Medicines Act wins against the Special Law on Counterfeit Drugs

Supreme Court of the United StatesImage via Wikipedia
“In this corner, Round 1:
The Cheap Medicines Act wins against the Special Law on Counterfeit Drugs
By Atty. Ping Peria

The recent Supreme Court (SC) decision in G.R. 149907, in Roma Drug and Romeo Rodriguez v. The Regional Trial Court of Guagua, Pampanga, the Provincial Prosecutor of Pampanga, Bureau of Food and Drugs and Glaxo Smith Kline has shown the possibilities of the almost a year old Cheap Medicines Act (Republic Act 9502) in legitimating actions that will effectively bring down the prices of medicines in the country, this on the eve of the one-year anniversary of the said law signed by President GMA last 6 June 2008.

The SC decision has not yet been appealed by the losing sides and Marvin A. Tort of Business Mirror (May 15-16, 2009) opined this may result in unscupulous retailers directly importing near-expiry drugs or medicines that are cheap and pass this on to the public for profit. While the concern is valid though completely unsupported by proof that such had actually happened, there are broad implications of the Supreme Court decision that indicates the case may just be an opening round of what may eventually become a highly-contentious area of litigation between the general public and the pharmaceutical industry. Where are the government agencies in this dispute? They will be forced to choose between taking the side of the public and uphold the Cheap Medicines Act or side with the multinational corporations who will also fight hard to maintain their prerogatives promoted by the Special Law on Counterfeit Drugs, the law which was effectively sidelined but not nullified by the SC decision..

Justice Tinga, the ponente or the writer of the decision, was a gifted law student and a bar topnotcher and he was previously a Congressman before he was appointed to the bench in 2003. He was presented, at first glance, a most momentous of cases in a magistrate's life, on whether to invalidate a law on the ground that it violates the Constitution. Being more of a politician than a jurist, he was trying to be friendly to all sides while attempting to do his duty to do justice.

Had he been concerned with fostering clear guidelines to aid future litigation on these types of cases and cement his legacy as a remarkable Justice in the highest Court of the land, he could have ruled on the constitutional law issues raised by the drugstore owner, such as the following :
1) whether the Special Law on Counterfeit Drugs violates the equal protection clause of the Constitution, the legal principle which states that every one is equal before the law and there shall be no special treatment of subject matter which is not properly classified;
2) whether the Special Law on Counterfeit Drugs violate the mandate of the Constitution in sec. 11, Article XIII which calls on the State to make essential goods, health and other social services available to all people at affordable cost;
3) whether the Special Law on Counterfeit Drugs violate the mandate of the Constitution in sec. 15, Article II which states that it is the policy of the State to protect and promote the right to health of the people and instill health consciousness among them.

Too bad, there is case law which says that if a court can decide a case avoiding the constitutional issues raised, the court will take the path of least resistance and go for the easier route. This is because courts are reluctant to overrule the will of the legislator, in this case, those who passed the law, as they are deemed to be full of wisdom, they being the representatives of the people and the laws they have passed are presumed valid and in accord with the Constitution.

In a legal sleight-of-hand, the SC here waved aside those weighty constitutional law issues and declared them moot as there is another law which must be taken into account, the Cheap Medicines Act, passed in 2008. Remember that this case got started in the year 2000, when the government agencies raided the store of Petitioner Roma Drug in Pampanga.

So, does this mean that being a social legislation at the same time, the Cheap Medicines Act can just look at certain acts, even if it had happened in the past, and declare such acts invalid ?The SC did not give such explicit guidance, but illustrated how a law protecting the rights of a broader set of people might be applied, by quoting the provisions of the law in the decision and saying all these provisions apply.

Thus, the Supreme Court avoided a messier result in constitutional litigation, that of nullifying the Special Law on Counterfeit Drugs, a law which was passed through the aggressive lobbying efforts of the pharmaceutical industry in the Philippines. Perhaps Justice Tinga was concerned about the howl that may result had he penned his valedictory ponencia differently, but he said quite a mouthful about the said law being a “heartless, soulless legislative piece”. Lawyers will not take this to heart even if it may please most public health advocates, as such statement is devoid of legal meaning, it is what is called in law school, obiter, or an aside. It sounded more like playing to the audience or the gallery, this populist piece of rhetoric in the SC decision.

What happens now with this result? This establishes a precedent which, if it does not get modified and further qualified after the motion for reconsideration which in all likelihood may be filed by the losing side in this case, will most likely affect the following :
1) the prosecution and trial of similar cases under the same provisions of the Special Law on Counterfeit Drugs which face possible dismissal based on this decision, if their counsels would find it fit to identify and use the precedent of this case;
2) the 2001 case filed by the grouping of multinational drug companies in the Philippines, the Pharmaceutical and Healthcare Association of the Philippines (PHAP), against the Department of Health on parallel importation, still currently undergoing litigation in a Makati trial court, should now be dismissed with the legal principle enunciated in this case though it is up to the Office of the Solicitor-General to make such assertion in such a way that may not contradict its position in cases involving the Special Law on Counterfeit Drugs which it may have also sought to uphold;
3) The current debates in Congress on the pending BFAD Charter amendments, where the concept of “misbranding” is undergoing deliberation - there are those who argue that “misbranding” should also refer to intellectual property rights (IPR)-related cases which will bring back the problem of linkage where the BFAD will resolve IPR-related cases which is outside its competence; advocates for the Special Law on Counterfeit Drugs might just explicitly state in this BFAD Charter amendment that the law on parallel importation which has been liberalized by the Cheap Medicines Act, might just have to take into account what are “counterfeit” drugs, which in effect will limit the reach of the Cheap Medicines Act, using the procedural justification used by Justice Tinga in this case, which is the what happens when a law on a similar topic is passed affecting a previous law also dealing with the same topic.

Just the same, this emerging area of litigation for public health advocates bears close watching in the years to come and the key question is : on whose side will our government agencies be in the future ? The answer to this will be revealed in the next set of cases around these issues.
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