Some good news

People with disability (PWD) can now heave a sigh of relief after the Court of Appeals upheld the 20-percent discount given to them on their purchase of medicines.

The appellate court turned down a petition filed by drug store operators, particularly the Drugstores Association of the Philippines Inc., Save More Drug Inc., Manson Drug Corp., South Star Drug Inc., and Northern Luzon Drug Corp. which sought to nullify the 20-percent discount given by Republic Act no. 9442 or the Magna Carta for Disabled Persons.

According to the decision penned by Associate Justice Noel Tijam, the CA said the grant of the discount to people with disability is constitutional because it is a valid exercise of police power by the State.

The Court noted that while the Constitution protects property rights, petitioners must accept the realities of business and that the State, in the exercise of police power, can intervene in the operations of a business which may result in an impairment of property rights in the process.

In its decision, the CA brushed aside the argument that the 20-percent discount should be limited to medicines which are connected with the particular disability of the PWD, saying that RA 9442 is intended to give full support to the improvement of the total-well being of disabled persons.

The appellate court also dismissed the contention that the law violates the equal protection clause because it failed to make substantial distinction between marginalized PWDs and those who are not.

The court said PWDs are a separate and distinct class from other citizens of the country which makes it unnecessary to make a distinction between marginalized and non- marginalized, adding that it was the intention of the law to grant the privilege 20-percent discount to all PWDs irrespective of their financial standing in life.

But the Court temporarily enjoined the National Council on Disability Affairs (NCDA) from implementing the discount since it has not yet been published as required by law.

RA 9442 is a milestone in giving rights to PWD in terms of their rehabilitation, self-development, and self-reliance and for their eventual integration into mainstream society. An estimated 9.7-million PWDs are expected to benefit from the law once it is fully implemented.

ICTSI reacts

Port operator International Container Terminal Services Inc. (ICTSI) recently sent us a statement saying that its $61.4- million investment in the construction of a new berth to address the increase in Philippine import and export cargo going through the Port of Manila is above board and with the required permits and approvals from the proper authorities.

Reacting to allegations made by Manila vice mayor Isko Moreno and the Manila City Council that the construction of the berth and the reclamation being conducted to house it are illegal, ICTSI also noted that the completion of the berth will bring to Manila a new taxable property as it explained that although it is a property of the Philippine Ports Authority, once in use by a private company, it becomes subject to local property tax under the principle of “beneficial user”.

The company explained that the land on which the new berth is being constructed is indeed public domain, located within the Port Zone, over which PPA has jurisdiction and that ICTSI will have no residual claims of ownership in the land and improvements, but will only use it for the duration of its contract. 

ICTSI further explained that the development of a new berth is part of ICTSI’s contractual obligations to the PPA, and that the company has obtained approvals from the PPA pertaining to this development. Some approvals were from the city authorities, but obtained through the PPA as owner. The permits include a reclamation permit from the Philippine Reclamation Authority (PRA), it added.

While the PPA has asserted exception in respect of reclamation incidental to the construction of ports, the Manila City Council claims jurisdiction over reclamation within city limits, placing ICTSI in the middle of a jurisdictional battle between the two.

ICTSI officials said they hope that the dispute will be resolved quickly so as not to delay the construction of the berth.

Meanwhile, in a separate statement, Manila Mayor Alfredo Lim said the issue is a by-product of the overlapping jurisdiction between the city and the PPA, and other National Government agencies (including the PRA).

He pointed out that while they acknowledge that the PPA used to have exclusive authority in approving construction projects within the port zone in accordance with its charter, the city has to assert authority based on the Local Government Code and the National Building Code. 

Lim added that they hope to resolve the issue soon with the PPA brought about by the overlap of authority.

From the readers

“I enjoyed your column, which I picked up from a google alert.

“Investment arbitration at the ICC and ICSID works very well for the lawyers and the arbitrators, and for the large companies which can use threats of arbitrations or actual lawsuits to harass governments. But they work quite poorly for governments and for most investors, often even when they win. Your question as follows was in my view precisely on point:

“If we already had competent government lawyers, why did we need to hire White and Case to defend us in the ICC arbitration case? Granted that we needed these foreign lawyers who are experts in arbitration, and that they could better represent us before the ICC, then why did White and Case have to hire the services of Feliciano and Sereno?”

“Governments need to develop in-house capacity to respond to threats of litigation from the multinationals. Otherwise, they are dependent on the big firms in London, NY etc. when the claim comes in. And once dependent on those firms, you are in the arbitration industry. The lawyers are the arbitrators, lots of mutual backscratching, etc. Feliciano notably worked as arbitrator in the ADF vs. US NAFTA investment arbitration (he is one of the better arbitrators) – there is a lot of cross pollination, raising various perceptions of bias in the adjudicative mechanism.

“Am I right that P2 billion converts to legal fees of $44 million? That is shocking. The highest I’ve heard to date is about $16 million to defend Romania against an investment treaty claim,” – Name withheld upon request

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