UNDER THE MICROSCOPE
The recommendation of the Ombudsman review panel to file graft and technical malversation charges against former DOH Secretary and current Congressperson Dr. Janette Garin and four others for the purchase of Dengvaxia vaccines is truly puzzling and contradictory.
The panel cites “probable cause” for the charges under the Anti-graft and corrupt practices act (RA 3019). What is puzzling is that this is the same panel that dismissed the charges of violation of RA9184 (Government Procurement Reform Act) and of criminal negligence under Article 365 of the Revised Penal Code “for lack of probable cause and insufficiency of evidence.”
Dr. Garin, in response to the above, stated that they would “file a motion to reinvestigate, since we were deprived of our constitutional right to procedural due process.” Moreover, it is also puzzling, why the accused did not receive any official notice for them to respond accordingly.
Graft charges include “the prohibition of giving unwarranted benefit, advantage, or preference to any party, including the government, or of causing them undue injury.” It must be stated that at the time of the purchase of the Dengvaxia vaccine, it was the only licensed anti-dengue vaccine available. Thus, what was only required was a negotiated purchase to complete a legal requirement, which, as factually established, the DOH did properly.
Another point the panel cited was that “each and every one of them contributed to the realization of common purposes—i.e., to introduce, realign the budget (point 1), procure and use Dengvaxia vaccines (point 2) for the mass vaccination of a large number of public school students, placing them at considerable health risks (point 3), as there were still pending issues on the safety and efficacy of the Dengvaxia vaccines (point 4), thereby causing injury to the government (point 5) in billions of public funds.”
Point 1: The budget realignment happened at the level of the Office of the President, which, according to the DBM in November 2018, was legal, since “the 2015 budget law authorized the President to realign savings to any program or project undertaken by the executive branch,” as elucidated by DBM lawyer Tricia Baraan. The Ombudsman already dismissed the same charges against then-president Benigno Aquino III. In fact, they “did not find any evidence of his supposed involvement in the[Dengvaxia] anomaly.” So, if then President Aquino was not guilty, why pin the charges on the five accused who are simply his subordinates?
Point 2: If they did not violate RA 9184, since the charges were dismissed by the same panel, why are they being charged for the procurement of the vaccine? I’ll leave it to the lawyers to thresh out the specifics of this particular point, but it is downright contradictory to me as a non-legal person.
Point 3: Placing a large number of students at considerable health risks presupposes that there is scientific evidence that Dengvaxia has untoward side effects that far outweigh its benefits. The theoretical risk of having more severe dengue when a dengue-naïve person is vaccinated and subsequently infected is just that, theoretical, since it will require that the person be infected before they receive the second dose of the vaccine. Severe dengue does not necessarily mean that the person will die or be placed in mortal danger, based on the criteria for severe dengue.
Point 4 is likewise on shaky ground. As of the time of procurement, the scientific evidence showed the overwhelming benefits and very little risk of Dengvaxia based on many clinical trials all over the world, including the Philippines. Subsequently, at the time of the promulgation of the current charges, Dengvaxia was already designated by the WHO as an essential medicine, and now licensed for use in at least 20 countries around the world. The panel apparently neglected to consult the scientific experts during their investigation.
Point 5 of causing injury to the government is also problematic with the previous four points being questionable. What injury are they referring to, then?
This just points to another politicalization of the Dengvaxia issue for the benefit of those who stand to gain the most from the adverse publicity the controversy generates. The continuing delays in the criminal trials of the Dengvaxia cases which appears to be caused by the PAO’s repeated motions for the presiding judges to inhibit themselves, speak of a weak case.