Press Release
April 19, 2018

Drilon disagrees with Gordon, files dissent on Dengvaxia report

Senate Minority Leader Franklin M. Drilon cast his dissenting vote to the draft committee report holding former President Benigno Aquino III and his officials liable for the Dengvaxia controversy.

Drilon, a former justice secretary, said he does not concur with the Senate Blue Ribbon Committee's report, which recommended the filing of charges against the former President, former Health Secretary Janette Garin, and former Budget Secretary Florencio Abad among others, over the purchase and administration of the Dengvaxia vaccine.

"Upon careful review of the draft report, I would like to inform you that I disagree with its findings, conclusions and recommendations," Drilon said in a letter to Senator Richard Gordon, chairman of the Senate Blue Ribbon committee, on Thursday.

"Thus, in accordance with Rule XI, Section 24 of the Rules of the Senate, I am formally entering my objection thereto and submitting herewith my dissenting vote," he added.

Drilon said that as an ex officio member of the committees that conducted the inquiry on the Dengvaxia controversy, he is duty-bound to consider all available evidence before making any conclusion. He warned against selecting segments of evidence to fit the desired conclusion while hiding or ignoring those that tend to refute it.

In his 30-page dissenting vote, Drilon said, "We found no conclusive scientific evidence to support the conclusion that any of the reported deaths were in any way connected to Dengvaxia," as he pressed for the matter to be studied by "qualified pathologists".

Drilon found no basis for the committee's recommendation to file charges against the former President and his officials for violation of the Revised Penal Code, R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act, Civil Code and Universal Declaration of Human Rights.

"Declaring certain personalities guilty at this point would not only be premature but would also reinforce impressions of the politicization of a legitimate public health concern that must be addressed in a clinical manner," Drilon said.

Drilon however said, "if and when it is indubitably established that Dengvaxia is the proximate cause of the deaths in question, all those involved should be made to account - without exception."

He emphasized that Dengvaxia was administereted to 280,000 children during the previous administration, and to 400,000 during President Duterte's administration and Secretary Ubial's term.

The draft report concludes that Aquino, Garin and Abad are primary conspirators who must be criminally liable for all the tragedy, damage and possible deaths resulting from the Dengvaxia mass vaccination program, citing Garcia v. Peoplewherein the Supreme Court held that a person committing a felony is responsible for all the natural and logical consequences resulting from it, though the unlawful act performed is different from the one intended.

In citing the said doctrine, the report refers to Art. 4 of the Revised Penal Code (RPC) which provides that criminal liability shall be incurred by any person committing a felony, although the wrongful act be different from that which he intended.

Drilon said the doctrine in Garcia v. People and Art. 4 of the RPC cannot apply to the former President's act of approving the procurement of Dengvaxia.

He explained that in order for a person to be liable for a felony under this provision, these two elements must be present: 1) an intentional felony was committed, and 2) the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender.

According to Drilon, for an intentionalfelony to exist, the person should have acted by means of doloor with malice. Absent criminal intent, he added, there can be no felony. Malice, however, is negated by good faith.

"The first element - that an intentional felony was committed is conspicuously absent. It is clear that President Aquino did not act with malice or dolo in procuring the vaccine." Drilon stressed.

Drilon pointed out that good faith is evident in the process by which the former President arrived at his decision to procure the vaccine - considering factors such as the prevalence of dengue in certain regions of the country, the spike in reported cases in areas outside of Metro Manila, the costs of getting sick, the estimated costs for the entire country which could total in P58.2 Billion, the absence of a cure for dengue, the fact that countries like Mexico and Brazil have already approved the vaccine.

He emphasized that Aquino acted in good faith, upon the advice and reports of his subordinates.

He added that when Sanofi began selling Dengvaxia, there was no evidence of an increased risk of severe dengue in seronegative individuals aged 9 years and above. "President Aquino could not have known of the possible adverse effect of the vaccine on seronegatives," he said.

Drilon, citing the findings of the PGH Investigative Task Force and the statements of noted dengue expert Dr. Halstead, contradicted the report's conclusion linking the reported deaths of several children to Dengvaxia, stressing, "there is no proof that Dengvaxia was the proximate cause of the children's deaths."

Drilon quoted Dr. Halstead's testimony at the Senate, who said that the diagnosis on whether Dengvaxia caused death cannot be based on mere autopsy.

Considering that there is no conclusive proof to establish that Dengvaxia was the proximate cause of the deaths of the children whose bodies were autopsied by the Public Attorney's Office, Drilon said it is evident that the second element of Article 4 of the Revised Penal Code is not met.

The minority leader also said Aquino did not commit technical malversation when he authorized the purchase of Dengvaxia, as it is well within his Constitutional authority to use the savings to fund the Dengvaxia procurement.

Finally, Drilon explained that there was no undue haste in the procurement of the vaccine as the approval was well within the timelines provided in the law and relevant regulations. Drilon pointed out that the discussion of the dengue problem began in 2010, the problem has been existing for decades, and thus the purchase of the vaccine in 2015 may hardly be characterized as hasty.

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