Heartless piece of legislation

In case of irreconcilable conflict between two laws, the latest legislative enactment prevails and the prior law yields to the extent of the conflict. This is the rule applied in this case of Rody.

Rody was operating a drug store in his home province. By virtue of a search warrant issued by the local Regional Trial Court (RTC) a raiding team composed of the National Bureau of Investigation (NBI) operatives and Bureau of Food and Drugs (BFAD) inspectors seized several imported medicines from Rody’s drug store. The seized medicines are manufactured by a London-based pharmaceutical company with a local distributor in the Philippines (GSK) which applied for the warrant because Rody imported them directly from abroad instead of purchasing them from the local distributor.

The imported drugs are identical in content with their Philippine-registered counterparts and not in any way adulterated or mislabeled. But Rody was accused of violating Section 4 (a) of R.A. 8203 also known as the Special Law on Counterfeit Drugs (SLCD) which classifies the said medicines as “counterfeit” because they are imported drug products not registered in the name of a natural or juridical person with the Bureau of Patent, Trademark and Technology Transfer of a trademark, trade name or other identification mark of a drug pursuant to Section 72 Part III of the Intellectual Property Code. Can Rody be prosecuted under said Act?

No. With the passage in 2008 of Republic Act 9502, also known as the “Universally Accessible Cheaper and Quality Medicines Act”, particularly Section 7 thereof, third parties like Rody have been granted unqualified right to import or possess “unregistered imported drugs”. It may be that R.A. 9502 did not expressly repeal any provision of the SLCD. However it is clear that the SLCD’s classification of “unregistered imported drugs” as “counterfeit drugs” and of the corresponding criminal penalties therefore are irreconcilably in conflict with R.A. 9502 since the latter indubitably grants private third persons the unqualified right to import or otherwise use such drugs. There is irreconcilable inconsistency between two laws embracing the same subject when the later law nullifies the reason or purpose of the earlier act such that the earlier act loses all meaning and function.

Besides, the said provision of R.A. 8203 is of doubtful constitutionality. As written, the law makes a criminal of any person who imports an unregistered drug regardless of the purpose, even if the medicine can spell life or death for someone in the Philippines. It does not accommodate the situation where the drug is out of stock in the Philippines, beyond the reach of a patient who urgently depends on it. It does not allow husbands, wives, children, siblings, parents to import the drug in behalf of their loved ones too physically ill to travel and avail of the meager personal use exemption allotted by law. It discriminates, at the expense of health, against poor Filipinos without means to travel abroad to purchase less expensive medicines in favor of their wealthier brethren who are able to do so. It deprives Filipinos the right to choose a less expensive regimen for their health care by denying them a plausible and safe means of purchasing medicines at a cheaper cost.

The law would make criminals of doctors from abroad on medical missions of such humanitarian organizations as the International Red Cross, the International Red Crescent, Medicin Sans Frontieres and other like minded groups who necessarily bring their own pharmaceutical drugs when they embark on a mission of mercy.

Even worst, it equates the importers of such drugs, many of whom are motivated to do so out of altruism or basic human love, with the malevolent that would alter or counterfeit pharmaceutical drugs for reason of profit at the expense of public safety. For a law that is intended to help save lives, the SLCD has revealed itself as a heartless, soulless legislative piece.

The challenged provisions of the SLCD apparently proscribe a range of constitutionally permissible behavior. It is laudable that with the passage of R.A. 9502, the State has reversed course and allowed for a sensible and compassionate approach to the importation of pharmaceutical drugs urgently necessary for the people’s constitutionally recognized right to health (Roma Drug et. al. vs. RTC of Guagua Pampanga et. al., G.R. 149907, April 16, 2009).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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