Confusing signals on vaccine purchase
The conflicting reports on the indemnification law that manufacturers of COVID-19 vaccines have asked the Philippine government to enact as a condition for their delivery of the vaccines are putting the country in a bad light.
On Feb. 23, President Duterte signed into law the “COVID-19 Vaccination Act of 2021,” which provides that manufacturers of vaccines administered in the Philippines, among others, shall be “immune from suit and liability under Philippine laws with respect to all claims arising out of, related to or resulting from the administration or use of a COVID-19 vaccine under the COVID-19 Vaccination Program except arising from willful misconduct or gross negligence.”
The law also created a P500-million trust fund to compensate any death, permanent disability or hospital confinement that may result from any vaccination done under that program.
A month later, the President said it was illegal for the government to assume liability and pay compensation to those who might suffer serious adverse effects from the vaccines.
Noticeably, he did not say what law would be violated by that indemnification obligation. And even assuming there is such a law, that law is deemed repealed by the COVID-19 Vaccination Act because no legislative measure is etched in stone.
If the President believed at the outset that scheme is illegal, then he should not have certified its enactment as urgent, or signed it after Congress approved it.
But until the Supreme Court declares it as unconstitutional or invalid for whatever reason, the law is in effect, and all rights and obligations that arise from it should be observed and complied with by all government offices.
Whether or not that legal doctrine would give sufficient comfort to the pharmaceutical companies is a big question mark.
In theory, our courts are supposed to be independent from the executive branch of government and that they should decide cases based on the law and the fact presented, but the reality on the ground is high government officials (through overt action or indirect signals) can influence the course of judicial action.
Bear in mind that law is an essential part of the supply contract with the pharmaceutical companies and without which the latter would not have agreed to deliver the vaccines.
The Philippine government cannot repudiate the indemnification responsibility it assumed without risking the continued delivery of the contracted vaccines. Donations would not meet the requirements to achieve herd immunity from the virus.
Worse, that action would give the impression to the international community that the Philippine government cannot be trusted to keep its word on business transactions.
The government’s point person in the procurement of the vaccines has to assure the pharmaceutical companies the indemnification law remains valid despite the President’s contrary opinion.
For unexplained reasons, or probably because Congress was in a hurry to meet the indemnification requirement of the pharmaceutical companies, the law does not define the meaning of the two instances that would make vaccine manufacturers and administrators liable for the vaccines’ adverse side effects.
And it’s doubtful if the government offices tasked to draft the law’s implementing rules and regulations would fill up that omission.
Chances are, the definitions of willful misconduct and gross negligence the Supreme Court had made in the past would be used as benchmarks in determining whether or not a vaccine manufacturer or administrator can claim that immunity from suit.
Considering the pandemic’s unique situation, however, it may not be fair to rely solely on those cases in deciding the issue of immunity from suit.
Note that the vaccines did not undergo the traditional period of lengthy testing and peer review that vaccines for other illnesses had to go through before they were released to the public. Only “emergency use authorization” has been given by medical regulatory agencies to the COVID-19 vaccines.
Under these circumstances, the vaccine manufacturers cannot be faulted for invoking “caveat emptor” (let the buyer beware) if something goes wrong with the vaccines. INQ
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