The Constitutional Right to Health

Among Filipinos

Ma.Samantha S. Ramos

1
 Introduction

The term “health” was given a universal definition in 1946. It is referred to as an

individual's state of complete physical, mental and social well-being,1 and a measure to

determine an individual’s ability to adapt and self manage in the face of social, physical, and

emotional challenge.2 Furthermore, the Committee on Economic, Social and Cultural rights

provides that the right to health extends to a wide range of factors such as safe drinking water

and adequate sanitation, safe food, adequate nutrition and housing, healthy working and

environmental conditions, health-related education and information, and access to health care.3

At present, the Coronavirus Disease-2019 pandemic has presented threats to public

health.4 It has had a major impact on the capacity of health systems in continuing the delivery of

essential health services.5 As the Philippines’ COVID-19 positive cases peaked at 450,000,6 this

global crisis gives us a cause to determine the status of the Philippine Health System, and the

right to health among Filipinos.

First, it shall be established that although the Philippine Health System has improved

over the years, vital aspects of health are challenged by certain issues that have been persisting

over the years. Despite enacting major health laws, the Philippines continues to face these health

1
Constitution of the World Health Organization, preamble (1946).
2
Machtled Huber, et al., How Should We Define Health, 1, at 3 (2011).
3
U.N. Commission on Economic, Social and Cultural Rights [CESCR], Twenty-second Session
of the CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art.
12), at 4, U.N. Doc. E/C.12/2000/4 (Aug. 11, 200).
4
Impact of COVID-19 on people's livelihoods, their health and our food systems, available at
https://www.who.int/news/item/13-10-2020-impact-of-covid-19-on-people%27s-livelihoods-thei
r-health-and-our-food-systems (last accessed Dec. 5, 2020).
5
Maintaining essential health services during the COVID-19 outbreak, available at
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/related-health-issues (last
accessed Dec. 5, 2020).
6
Updates on Novel Coronavirus Disease-2019, available at https://www.doh.gov.ph/2019-nCoV
(last accessed December 13, 2020).

2
challenges, and Filipinos endure the inadequate health service the government currently

delivers.

Second, given the profound implications of this pandemic, and the underdeveloped

health system of the Philippines, it is of great importance to determine whether the right to

health of Filipinos is absolutely protected by our Constitution.

Health is an essential and indispensable aspect of human life. Any threat to our health is

a threat to our life. As we experienced this COVID-19 pandemic, we have realized how our

health is of great importance, and how our government must strengthen and improve its health

service delivery. However, we shall look deeper how the Court has perceived the right to health

among Filipinos. We must explore what our Fundamental law provides, and we shall determine

if the Filipinos right to health is absolutely protected.

3
I. The Right to Health: The Philippine Health System

A. Development in the Philippine Health System

The Philippine’s health system currently ranks at 102nd out of 141 countries worldwide.7

Although our country’s health system has undergone various changes, numerous challenges

are unsolved. According to the research of Xerxes Serposo (2019), the Philippine health system

has progressed over the years. From 1997-2017, there were major successes and improvements

in our health system such as, expansion of PhilHealth Coverage, concerted efforts to ensure

health care data privacy, waiting time improved, increased rural health units, modernized data

gathering, intersectoral approaches to health, increase client satisfaction to government health

services, development of disaster health management system, and increase in health financing.8

On the contrary, the study showed that the overall change in our country was in fact

retrogressive. This provides that the challenges in the Philippine Health System which existed

during the years of 1997-2007 is still subsisting. The response of the government on the issues on

uneven distribution of health facilities and health staff across the country, inefficient health

financing and service delivery, difficulty in hospital bed availability, geographical constraints in

service delivery, increased air and household pollution, lower childhood immunization, lack of

patient safety data, and loose adherence to clinical practice guidelines — has not improved over

the years. This retrogressive nature of development is caused by the increasing challenges and

limited resources from our government.9

C. Principal Health Reforms, And The Existing Challenges In The Philippine Health System

7
The Global Comprehensive Report 2019, available at
http://www3.weforum.org/docs/WEF_TheGlobalCompetitivenessReport2019.pdf (last accessed
Dec. 6, 2020).
8
Xerxes Serposo, Developmental Changes in the Philippine Health System: Accomplishments,
Successes and Challenges, 1, 14 (2019).
9
Ibid.

4
 One of the health reforms enacted to improve the Philippine Health System is Republic

Act No. 9502, or The Cheaper Medicines Act of 2008.10 This law was enacted to improve access

to cheaper and quality medicines for the public.11 Despite this, lack of availability of medicines

and higher-priced medicines in private hospitals remains one of the current problems in the

country. A survey shows that people with lower income still find it challenging to access

affordable medicines. This compels Filipinos to self-medicate rather than purchasing standard

treatment of medicines.12

Another health reform is Republic Act No. 7305, or The Magna Carta of Public Health

Workers of 1992.13 This law was enacted to ensure the proper and just compensation of health

workers, and to help promote a better delivery of a quality health care service. In contrast, the

Philippines Overseas Employment Administration has reported that the country has a shortage

of about 290,000 health care workers.14 Although the Philippines is one of the largest exporters

of health care workers in the world, there is an existing shortage of doctors, nurses, and medical

technologists in the country. Primarily, the Philippine Institute for Development Studies has

reported that 75% of cities and municipalities in the country have insufficient number of health

care workers.15 Furthermore, it has been reported that studies show that the current

10
An Act Providing for Cheaper and Quality Medicines [The Cheaper Medicines Act], Republic
Act No. 9052 (2008).
11
Oscar Picaso, Review of the Cheaper Medicines Program of the Philippines, available at
https://www.dbm.gov.ph/wp-content/uploads/OPCCB/fpb/b_DOH-CheaperMedicines/i-Cheap
er%20Medicines%20Program%20Review.pdf (last accessed December 8, 2020).
12
Access to Medicines in the Philippines: Overcoming the Barriers, available at
https://think-asia.org/handle/11540/7967 (last accessed December 9, 2020).
13
The Magna Carta of Public Health Workers, Republic Act No. 7305 (1992).
14
Prime Sarmiento, Shortage of Nurses hit the Philippines, available at
https://www.chinadaily.com.cn/a/202004/22/WS5e9faba4a3105d50a3d17f65.html (last accessed
December 9, 2020).
15
Pauline Macaraeg, About 75% of cities, towns in Philippines lack health workers, available at
https://www.rappler.com/nation/about-75-pecent-cities-towns-philippines-lack-health-workers-
pids (last accessed December 8, 2020).

5
nurse-to-patient ratio is at 12.6 nurses per 10,000 individuals in urban areas, and 4.2 nurses per

10,000 individuals in rural areas.16

Despite the health financing reform strategies which the government has implemented,

the country continues to experience problems in health financing. PhilHealth has yet to improve

the financial protection and benefit packages to the health needs of the Filipinos. Particularly,

the government has yet not negotiated a more reasonable price with providers based on patient

volumes, nor has created any policy to control hospital and physician fees and balance billing

practices. Furthermore, outpatient consultation, diagnostics, and medicine is still not covered by

the benefit packages.17

II. The Right to Health: Tracing the Legal Foundation of the Right to Health

The retrogressive development in the Philippine Health System provides that the

government’s delivery has been insufficient and lacking. Despite enacting health reforms, the

public health challenges that the country has been facing are still existing. One might wonder if

there is any protection from our Fundamental law when such a basic human right is not

adequately delivered by the state. In Part II, I will track the legal foundation of the right to

health from international laws, to our Constitution.

A. Recognition of the Right to Health in International Law

Prior to the existence of international treaties, health has been considered as an essential

asset of man.18 Regardless of the person’s age, gender, ethnicity, religion, and socio-economic

16
Miriam Deprez, Saving lives on the frontline, Filipino nurses still face abuse and stigma,
available at https://southeastasiaglobe.com/philippines-nurses-covid-19/ (last accessed December
8, 2020).
17
The Philippines Health System Review, available at
https://apps.who.int/iris/bitstream/handle/10665/207506/9789290615583_eng.pdf?sequence=1&is
Allowed=y (last accessed December 8, 2020).
18
U.N. Commission on Human Rights, Human Rights Fact Sheet No. 31 (2008).

6
status, the enjoyment of the highest attainable standard of health is a fundamental part of our

human rights.19

The right to health was first recognized under Article 25 (1) of the Universal Declaration of

Human Rights (1948). It provides that every individual has the right to a standard of living for an

adequate health and well-being. This right includes food, clothing, housing,medical care and

necessary social services.20 The International Covenant on Economic, Social and Cultural Rights

(1966) further ensured the enjoyment of such a right. This led to the recognition of the right to

health in all states, as each state has ratified international human rights treaties.21 In particular,

the Philippines became a party of the Alma Conference Declaration of 1978 at the International

Conference of Primary Health Care. This declaration expressed the need of urgent action by all

governments to protect the health of their people by providing adequate health and social

measures.22 It also recognized health care as an integral part of the country's overall social and

economic development.23 As the Philippines ratified this declaration, it has been given effect as a

part of the Philippine laws. While such a treaty became a domestic law, it was further enshrined

in the 1987 Constitution. Thus, making the right to health a part of the fundamental law of the

land.

B. Recognition of the Right to Health in Philippine Jurisprudence

The earliest reference of health in the Philippine jurisprudence is in 1902.24 The Court has

considered thenceforth in its decisions that health is an individual right which shall receive

19
Ibid.
20
Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (1948).
21
Ibid.
22
International Conference of Primary Health Care, Sept 6-12 , 1978, Alma Conference Declaration,
declaration v.
23
International Conference of Primary Health Care, Sept 6-12 , 1978, Alma Conference Declaration,
declaration vii.
24
Gonzaga v. Cañete, 1 Phil 189-192 (1902).

7
protection from the government.25 Through its legitimate exercise of the police power, the state

shall thereby protect, conserve, and promote health.26 This includes defining crimes and

prescribing penalties for offenses against public health,27 as well-as enacting other health-related

legislation.

An example of the Court’s use of police power to protect health can be seen in Calalang v.

Williams (1940).28 The Court pronounced health as one of the “fundamental and paramount

objectives of the state in bringing about the greatest good to the greatest number." However,

health as a constitutional right was not explicitly granted to Filipinos until the enactment of the

1973 Constitution.29 In its state policy, the right to health was not in an exclusive provision as

the policy included the establishment, maintenance, and ensurement of adequate social services

in the other fields such as education, housing, employment, welfare, and social security.30 On

the one hand, the 1987 Constitution has conferred the right to health under Article II, Section

15.31 The twenty-eight sections of its Declaration of Principles and State Policies transformed from

the five-sections of the 1935 Constitution, and ten-sections of the 1973 Constitution.32 Some of

the state policies already anchor justiciable rights. In particular, the Court, as regard to the

question of whether the right to health under Section 15 of Article II is self-executing and a

judicially enforceable right, has ruled conflicting decisions.

25
U.S. v. Arceo, 3 Phil 381-386 (1904); U.S. v. Gonzalez, 29 Phil 506-515 (1915).
26
Lorenzo v. Director of Health, 50 Phil. 595-598 (1927); Department of Public Services Labor
Union v. Court of Industrial Relations, 110 Phil. 927-932 (1961); City Government of Quezon
City v. Ericta, 207 Phil 648-657 (1983).
27
U.S. v. Gonzalez, 29 Phil 506-515 (1915).
28
Calalang v. Williams, 70 Phil. 726 (1970).
29
Constitution (1973), art. ii, sec. 7.
30
Id.
31
Constitution (1987), art. ii, sec. 15.
32
Bernas, S.J. (2009). The 1987 constitution of the republic of the Philippines: A commentary. Quezon
City, Philippines: REX Printing Company, Inc.

8
 In Basco v. Philippine Amusements and Gaming Corp. (1991),33 the Court categorically ruled

that Section 13 of Article XIII of the 1987 Constitution,34 which pertains to the duty of the State

to protect and promote the people’s right to health and well-being, as a non self-executing

provision. In addition, the Court in Tanada v. Angara (1997),35 ruled that Section 15 of Article II is

not self-executing.36 These rulings were upheld in Tondo Medical Center Employees Association v.

Court of Appeals (2007).37 Such provisions on the right to health are not judicially enforceable

constitutional rights, and can only provide guidelines for legislation.

Contrary to the cases which decided that Article II, Section 15 is not self-executory, the

case of Oposa v. Factoran (1993)38 gives a different insight to the “right to health” as a

fundamental right. Justice Feliciano in his concurring opinion established that the Court is in

effect saying that Section 15 and Section 16 of Article II of the 1987 Constitution are

self-executing and judicially enforceable. According to the Court, the right to a balanced and

healthy ecology unites with the right to health. As basic rights, these need not to be written in

the Constitution. It has existed from the beginning of humankind, and has continued to be an

essential right. The framers of our Constitution explicitly provided these rights, in fundamental

character, to impose upon the state its solemn obligation to preserve the right to a balanced and

healthful ecology, and to protect the right to health.39 Later in Imbong v. Ochoa (2014),40 the Court

upheld such ruling that Section 15 of Article II, and Sections 11, 12, and 13 of Article XIII are

self-executing, and the right to health is, therefore, a judicially enforceable right.

C. The Right to Health under the 1987 Constitution

33
Basco v. Philippine Amusements and Gaming Corp., 274 Phil 323-346. (1991).
34
Constitution (1987), art. xiii, sec. 13.
35
Tañada v. Angara, 338 Phil 546-606. (1997).
36
Id.
37
Tondo Medical Center Employees Association v. Court of Appeals, 554 Phil 609-635. (2007).
38
Oposa v. Factoran, G.R. No. 101083. (1993).
39
Ibid.
40
Spouses Imbong v. Ochoa, Jr.,732 PHIL 1-99. (2014).

9
 In furtherance of Section 15 of Article II, the framers of the 1987 Constitution dedicated

three sections under Article XIII to impose on the state its obligation to protect and promote the

right to health of all the people. These provisions connote that in order to protect such a right

and to instill health consciousness among people, the state shall adopt a unified health delivery

system which comprehensively includes health promotion, disease prevention, education, and

planning.41 Although the enjoyment of the right to health shall be granted to all, the

Constitution gives priority to the underprivileged sick, elderly, disable, women, and children.42

An example of the effect of these provisions is the enactment of Executive Order No. 175,43

which amended R.A. No. 3720. It provided for the amended duties and responsibilities of the

Food and Drug Administration in establishing standards and quality measures for foods, drugs

and devices and cosmetics, adopting measures to ensure pure and safe supply of foods and

cosmetics, and measures to ensure the rational use of drugs and devices.44

41
Constitution (1987), art. ii, sec. 15.
42
Constitution (1987), art. xiii, sec. 11.
43
Executive Order No. 175 (1987).
44
Id.

10
III. Conclusion

The right to health should be treated with much greater importance. The current

Philippine Health System which provides inadequate and inefficient health service delivery to

the people is evidently weak to fight the COVID-19 pandemic. It must be emphasized that the

health system issues the country has been facing has been existing over decades. Yet, there is

nothing in our laws which can compel the state to give more protection to our right to health,

and to provide an adequate health service.

Although the incorporation of the right to health was further strengthened in our 1987

Constitution, the Court has had contrasting rulings as regard to whether or not the right to

health is a judicially enforceable right. Indeed, it is of great importance for us to determine what

is the standard of an adequate health system that the state shall provide among all Filipinos. As

Justice Feliciano explained, “where no specific standards are shown to exist, the legislative and

executive departments must be given a real and effective opportunity to fashion and

promulgate those standards.”45 Determining the standard of an adequate health system would

then in effect provide for a specific, and operable legal right, rather than a constitutional or

statutory policy.46

45
Oposa v. Factoran, G.R. No. 101083. (1993).
46
Id.

11