MANILA, Philippines ? (UPDATE) The Supreme Court has ruled that a local proprietor could not be stopped from importing drugs patented by large pharmaceutical companies.
In a 13-page decision, the high court?s 2nd division through Associate Justice Dante Tinga, stopped a lower court from prosecuting Romeo Rodriguez, owner of Roma Drug, for allegedly violating Republic Act 8203 or the Special Law on Counterfeit Drugs (SLCD).
Rodriguez went to the Supreme Court questioning the constitutionality of SLCD as he asked the high tribunal to stop the Guagua, Pampanga regional trial court from prosecuting him for importing Augmentin (375mg.) tablets, Orbenin (500mg.) capsules, Amoxil (250mg.) capsules and Ampiclox (500mg.), products of Glaxo Smithkline.
Rodriguez said SLCD violated several provisions of the Constitution, including Section 11 of Article 13, mandating that the State make ?essential goods, health and other social services available to all people.?
The high court issued a temporary restraining order against the order of lower court. Glaxo Smithkline and the Office of the Solicitor General appealed the decision, pointing out that Article 13 Section 11 of the Constitution works against the oppression and unlawful violation of the property rights of legitimate manufacturers.
The high court said that Republic Act 9502 or the Universally Cheaper and Quality Medicines Act of 2008 amended the Intellectual Property Code as this law allowed third persons the right to import drugs or medicines whose patents were registered in the Philippines by the owner of the product.
The high court said importing unregistered drugs was also provided under the implementing rules of the Cheaper Medicines Act. The same law also declassifies unregistered products as ?counterfeit.?
While there is no express provision under the Cheaper Medicines Act that amends the SLCD, the high court says that declassifying ?unregistered imported drugs? as counterfeit shows the intent of the lawmakers to abrogate a prior act (the SLCD).
?When a subsequent enactment covering a field of operation co-terminus with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails and the prior law yields to the extent of the conflict.?
?For the reasons above-stated, the prosecution of petitioner is no longer warranted,? the high court said.
?As written [in the SLCD], 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 the 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 able to do so,? the high court said.
?Less urgently perhaps, but still within the range of constitutionally protected behavior, it deprives Filipinos to choose a less expensive regime for their health care by denying them a plausible and safe means of purchasing medicines at a cheaper cost,? it added.
The Supreme Court said it was ?absurd? that the results from this far-reaching ban extended to implications that would ?deny the basic decencies of humanity.?
?The law would make criminals of doctors from abroad on medical missions of such humanitarian organizations such 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 their mission of mercy,? it said.
?For a law that is intended to help save lives, the SLCD has revealed itself as a heartless, soulless legislative piece,? the high court said.
Congresswoman Janette Garin agreed with the high court, saying "The Universally Accessible Cheaper and Quality Medicines Act of 2008 provided that the owner of a patent has no right to prevent third parties from performing without his authorization."
The high court said it would be good to note that at least the government reversed course and allowed a more compassionate law with regards to importation of medicines with the Cheaper Medicines Act.
