Nene Pimentel replies to Secretary Robredo

April 1, 2011

1. Sorry to say, the Secretary talks out of turn when he warns LGUs especially the barangay
not to enact ordinances that “prohibit the promotion, sale, distribution and purchase of
contraceptives such as condoms and pills.”

(a) The powers of the DILG which he heads have been emasculated by the adoption of the
Local Government Code.

As secretary, he can no longer order LGUs around especially the barangay.

The LG Code provides for a seriated power structure that empowers a higher local government
unit to supervise the next lower government unit.

To be a little more direct, the DILG has no power to sanction or even threaten any barangay for
passing any measure to ban abortive drugs, chemicals or devices that may cause injury to the
unborn or impair the health of his or her mother.

And to be even more direct, what will the Secretary do to punish the barangay officials who do
not follow his unlawful “directives”?

(i) Suspend them? That he cannot do. The barangays are not under his supervision or much less
under his control.

(ii) Punish them for insubordination? Neither can he do that. We are no longer living in
the Roman Empire where Tribunes had certain powers to stop legislation and punish certain
recalcitrant lower government officials.

(iii) Withhold their Internal Revenue Share?

That is certainly outside his power to do so.

(iv) Make it difficult for them to perform their functions?

By pulling strings with other government agencies which are following the anti-life agenda, he
may succeed in making the barangay officials feel ostracized by the central government.

But that if implemented in the concrete that would be illegal, unlawful and unconstitutional.

2. Why illegal?

Because it would be an act that is outside of the powers of the DILG to perform.

3. Why unlawful?
Because it would be an act that is in violation of the devolution of powers mandated by the Local
Government Code?

4. Why unconstitutional?

Because it would be an act that in effect bars the barangay and other local government officials
from implementing in the concrete what the Constitution mandates in principle: “Protect the Life
of the Unborn from conception” was well as the health of the Mother.

The recent outburst of the DILG Secretary follows on the heels of his illegal, unlawful and
unconstitutional order for the barangays to conduct their barangay assemblies last December 11.

That is a function that the Secretary usurped from the powers granted to the barangays under the
LG Code.

5. It is not correct to insinuate that the Barangay Ayala Alabang Ordinance No. 1 that seeks to
uphold the life of the unborn from conception and protect the mother from harm grabs the power
of the FDA from its primary function to ensure the sale, distribution and delivery of drugs,
chemicals, devices or medicines to the public.

A reading of the Ordinance in fact cites the FDA in its adoption of a provision of Republic 5921
that requires a duly licensed physician to prescribe the use of what might be drugs, chemicals,
devices or contraceptives that cause or lead to abortion or acts that harm or injure the health of
the mother. (Section 37. Provisions relative to dispensing of abolifecients or anti-conceptional
substances and devices. No drug or chemical product or device capable of provoking abortion or
preventing conception as classified by the Food and Drug Administration shall be delivered or
sold to any person without a proper prescription by a duly licensed physician.)

If the Ordinance appears to have taken its concern for the protection of the unborn from
conception and the shielding of the mother from harm a step ahead of the FDA, its ban on
abortives or contraceptives that may cause harm or injury to the unborn and the mother is not
arbitrary but is based upon available medical and scientific studies such as those complied by the
MIMs, a duly recognized “hallmark” of information on drugs, chemicals, devices and medicines
for the guidance of doctors in this country and, indeed, even by pharmaceutical companies in
many parts of the world as authoritative.

6. The statement attributed to the Secretary that the FDA may permit the sale of drugs,
chemicals, devices or medicines even without the prescription of a duly licensed physician runs
counter to a provision of a law that is still extant in our statute books and that is Republic Act
5921.

(Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,

pharmaceutical, or drug of whatever nature and kind or device shall be compounded, dispensed,
sold or resold, or otherwise be made available to the consuming public except through a
prescription drugstore or hospital pharmacy, duly established in accordance with the provisions
of this Act.)
(Section 37. Provisions relative to dispensing of abolifecients or anti-conceptional substances
and devices. No drug or chemical product or device capable of provoking abortion or preventing
conception as classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician.

That is the reason why some legislators are desperately trying to repeal the law

7. As to the Secretary’s intimation that the Pharmacy Law (Republic Act 5921) intends to
guide pharmacists alone, that is not so.

Section 37. Provisions relative to dispensing of abolifecients or anti-conceptional substances

and devices. No drug or chemical product or device capable of provoking abortion or preventing
conception as classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician.

This provision sanctions “any person” who delivers or sells to any person a drug or chemical or
device capable of provoking abortion or preventing conception as classified by the FDA without
a proper prescription by a duly licensed medical doctor.

8. It is illusory for the Secretary to assert that for barangays to enact ordinances that cause a
more realistic regulation of the use, sale or distribution or abortive drugs, chemicals, devices or
medicines to be valid, the barangays need a delegation of power from the Pharmacy Law.

Nothing can be a more bizarre rationalization of the “warnings” issued by the Secretary.

Barangays do not need a delegation of power from the Pharmacy Law to do their duty to ensure
the implementation of the Constitutional mandate to uphold the life of the unborn from
conception and protest the health of the mother.

They only need to follow what the Local Government Code mandates them to do such as for
example to advance the general welfare of their constituents and prevent them from harm or
injury from the use of toxic, harmful and noxious substances as defined by the FDA, scientific
experts and medical studies as mentioned above.

Moreover, the FDA is not yet in position to implement fully its mandate.

The Secretary of Health only a week ago announced the adoption of the Implementing Rules and
Regulations to govern the new FDA law. And it has yet to upgrade its equipment and the training
of its personnel to cope with the massive influx of all sorts of drugs, chemicals, devices and
medicines that have the potential to kill the fetus in the womb of the mother and in the process
injure the health of the latter.

9. What does the Secretary want the people in the barangay to do? Wait for eternity to deliver
their constituents from harm?
Barangay officials just like the rest of our officialdom have duties to perform while they are in
office.

And what higher duty is there than to uphold the life of the unborn from conception and in the
process protect the life of the mother, too.

10. Finally, it must be remembered that “life” is the highest among the values that the
Constitution upholds and protects.

That is why even in the sequencing of those values in the Constitution, life goes ahead of liberty
and property.

Indeed, without life, who can have liberty or property.

Even Patrick Henry could not have delivered his famous “Give me liberty or give me death
speech” if he did not have life in the first place.