Having less in life but more in law

It seems the judiciary is in an affirmative action mode lately. Not only is it determined to protect the people from extrajudicial killings and disappearances though the issuance of a writ of amparo and a writ of habeas data, or interested in arresting the degradation of the environment through the issuance of a writ of kalikasan; it has also espoused the fight of persons with disabilities as well as the elderly for the full recognition of the rights and privileges accorded to them by law.

Three years ago, the Supreme Court (SC) upheld the right of the elderly to enjoy a 20-percent discount in the purchase of medicine as provided for under Section 4 (a) of Republic Act 9257, otherwise known as the Expanded Senior Citizens Act of 2003.

It held that the State “can impose upon private establishments the burden of partly subsidizing a government program in order to promote the health and welfare of a special group of citizens.”

Following the affirmation of the rights and privileges the elderly should enjoy under the law, the Court of Appeals (CA), in a ruling issued on July 26, 2010, declared that physically handicapped individuals should also be given the same rights and privileges, as they are like senior citizens “who are in a class of their own.”

Tijam’s ponencia

“It is a declared policy of RA 7727 as amended by RA 9442, [Magna Carta for Disabled Persons] that the laws are intended to give full support to the improvement of the total well-being of disabled persons. Like the Senior Citizens Act, these laws give special privileges and benefits to PWDs [persons with disabilities],” the CA said in a ruling penned by Associate Justice Noel G. Tijam.

The ruling was approved by Associate Justices Marlene Gonzales-Sison and Danton Bueser.

The National Council on Disability Affairs (NCDA) immediately welcomed the CA decision and expressed hope that drugstore owners in the country would immediately comply with Section 32 of RA 9442, which grants PWDs at least a 20- percent discount for the purchase of medicines in all drugstores nationwide.

Dolores Deang-Soterio, chief of the Programs Management Division of NCDA, told the Businessmirror that among the drugstores in the country only Watsons Personal Care Stores has complied with the law.

“We are happy and at the same time hoping that they [drugstore owners] will no longer delay the implementation of the law,” Soterio said.

Soterio lamented that the NCDA has been receiving complaints against the staff of a well-known drugstore in the country for their rudeness in dealing with PWDs.

She said all complaints lodged by PWDs before the NCDA has been forwarded to the Food and Drug Administration (FDA) for appropriate action.

“The FDA can exercise its police power to close drugstores who will refuse to comply with the law,” the NCDA official said.

On the other hand, the Autism Society of the Philippines through its executive director has vowed to file a case before the Commission on Human Rights against drugstore owners who will refuse to implement the provisions of RA 9442.

Soterio also noted that NCDA has already complied with the directive of the CA’s Eleventh Division to publish its Administrative Order (AO) No. 001 S/2008—allowing the issuance of identification cards for bonafide PWDs—with the Office of the National Administrative Register and in a newspaper of general circulation.

While the CA  affirmed the constitutionality of the 20-percent discount granted to PWDs in Section 32 of RA 9442, it had enjoined the NCDA from implementing its Administrative Order No. 1 because of such nonpublication.

“With this compliance, may we appeal for reconsideration of the Court’s decision to suspend the implementation of Republic Act 9442 specifically the 20-percent discount on the purchase of medicine which is the subject for the application of temporary restraining order by the petitioners,” Soterio said in a letter to CA Eleventh Division Clerk of Court Donna Lara Oropesa.

In its July 26 decision, the CA held that the grant of 20- percent discount to PWDs is a legitimate exercise of police power, as the Court declared in the case of Carlos Superdrug Corp. et al. vs. DWSD et al.

In that case the Court ruled that Section 4 of Republic Act 9257, which grants a 20-percent discount on the purchase of medicine to senior citizens, is a valid exercise of police power.

The CA also did not give credence to the arguments of petitioners—Drugstores Association of the Philippines, Save More Drug Inc., Manson Drug Corp., South Star Drug Inc. and Northern Luzon Drug Corp,—that the grant of a discount to PWDs is unconstitutional for failing to provide just compensation upon taking of property for public use and for violating due process.

“We find that the grant of 20-percent discount on the purchased medicines of the PWDs is similarly considered a valid exercise of police power of the State; hence, it is constitutional,” the CA noted.

The CA also junked the claim of the petitioners that the prescribed tax-deduction scheme under RA 9442 does not allow them to collect full reimbursement of the 20-percent discount granted to PWDs; thus, they are deprived of their earnings.

The petitioners also stressed that the law is arbitrary as it does not require an applicant to present a certification from a licensed private or government physician, showing that the applicant is indeed considered a PWD as described under RA 9442.

The court dismissed the petitioner’s insistence that the 20-percent discount be limited to medicines tied to the PWDs’ particular disability.

RA 9442, said the CA, is intended “to give full support to the improvement of the total-well-being of the disabled persons” like the Senior Citizens Act.

It added that the petitioners’ contention that the discount be applied only to marginalized PWDs is contrary to Section 3 of RA 9442, which declares that the law applies to all disabled persons.

“Although there are special provisions in RA 7227 wherein the government grants marginalized PWDs benefits like financial assistance to marginalized but deserving students in pursuing postsecondary or tertiary education, free postal fees and etc., the subsequent enactment of RA 9442, amending RA 7227, explicitly applies to all PWDS regardless of their status in life; to hold otherwise would defeat the purpose of the law,” the CA ruled.

The court stressed that while Section 32 of RA.9442 does not specifically provide a requirement of certification from a licensed physician, its implementing rules and regulations clearly made implementation subject to the guidelines to be issued by the Department of Health, NCDA and other concerned government agencies.

Thus, the CA noted, the DOH through Administrative Order No. 2009-0011, issued guidelines for the 20-percent discount on the purchase of medicines for the exclusive use of the PWDs.

Likewise, NCDA issued AO No. 1 Series of 2008 on the guidelines for the issuance of PWDs’ identification card, which, among others, requires the presentation of a document to confirm the medical disability of the applicant.

“Hence, petitioners’ claim of violation of due process has no basis as the foregoing administrative agencies, in line with their mandate to promulgate rules and regulations have sufficiently provided measures to aver abuse of RA 9442,” the CA said.

Teachers, bosses can certify to apparent disability

The CA also did not give credence to the argument of the petitioners that NCDA AO No.1 is void for having allowed noncompetent persons like teachers, employers and heads of nongovernment organizations to confirm the medical condition of the applicant before the latter qualifies for the discount.

The court noted that the Official of the Solicitor General, which represents the NCDA and other government agencies in court cases, had correctly argued that teachers, heads of business establishments and heads of nongovernment organizations can validly confirm the medical condition of their students or employees with apparent disability (e.g., the person is legless) for obvious reasons, as compared to nonapparent disability (say, a mental condition) which can only be determined by physicians.

“We find that heads of business establishments can validly issue certificates of disability of their employees because aside from the fact that they can obviously validate the disability, they also have medical records of the employees as prerequisite in the hiring of employees. Hence, part IV (d) of NCDA AO No. 1 is logical and valid,” the CA added. It disagreed with the petitioners’ claim that the definitions of “disability” and “PWD” under RA 9442, the IRR, NCDA AO No. 1 and DOH AO 200-11 “are vague and broad,” thus, arbitrary and unreasonable, as they are at risk of granting a 20-percent discount to undeserving persons.

Based on its reading of the provisions of RA 9442 as well as the guidelines issued by the NCDA and DOH, the CA deemed the definition of the words “disability” and “PWD” is rather clear.

The IRR of RA 9442 defines PWD as a person suffering from restriction or different abilities, as a result of mental, physical or sensory impairment, to perform an activity in a manner or within the range considered normal for human being.

Under NCDA AO No. 1, PWDs are persons suffering from disabling diseases such as but not limited to those undergoing dialysis, heart disorders, severe cancer cases and such other similar cases causing temporary or permanent disability.

Meanwhile, DOH AO No. 2009-0011 summarized the seven disability types as communication disability, learning disability, mental disability, orthopedic disability, psychosocial disability, visual disability and chronic illness.

Soterio said that while it is apparent that the CA has given the first round to PWDs, it might take more time before they could enjoy such privileges as they expect drugstore owners not to give up easily.

“Yes, we are expecting them to file a motion for reconsideration or even bring this issue before the SC, but at the same time we are hoping that they will no longer oppose the implementation of this law,” Soterio said. –Joel R. San Juan / Reporter, Businessmirror