Transcript of Interview with Senate Minority Leader Franklin M. Drilon
ANC's Headstart with Karen Davila

Q: Both the House and the Senate are hoping to pass the COVID-29 vaccination program bill. Do you believe that it will be passed today?

SFMD: Yes, Karen. It will be passed by today especially if we already have on hand the certification of the President as to the urgency of the measure. There are some amendments but I don't think it is such of nature that the passage of this would be delayed. We have some provisions which are different from the House, so there must be some coordination to harmonize without going to the bicam. Hopefully we can settle those differences today and pass the bill on second and third reading from both houses and send it immediately to the President within the week.

Q: The versions have differences on the cap on LGU procurement. Tell us what version will prevail?

SFMD: Firstly, the difference is the volume of the vaccine that can be procured. In the HoR version, there is no limitation as to the volume of the vaccines that can be procured by the LGUs. The Senate imposes a 50 percent cap on the targeted population, because the targeted population is only 70 percent of the total population in a city or province. The restriction in the law is that the LGUs can only procure the equivalent of 35% of the total population or 70% of the targeted population.

Q: Why is a cap necessary? The HoR just let it open.

SFMD: This is suggested as an equalization provision so that the richer provinces cannot just buy everything that they can afford. In any case, 50% of the targeted population is about 35% of the total population. That's a limitation imposed on the LGU-purchased vaccine, because of the fear of the limited supplies of the vaccines, those who can afford can just purchase without regard to the need of other LGUs.

Q: Another aspect of this bill, once it is signed into law, is the immunity from suit or liability. Do you need a law for this?

SFMD: There is no immunity from suit but it is an indemnification against liabilities. The agreements can provide for what we call a free and harmless clause, meaning, the manufacturers, by expressed consent of the state and by provision of indemnification agreement, can provide a free and harmless cause to the manufacturers. In fact, Pfizer and AstraZeneca, based on news reports, have submitted indemnification forms to the Philippine government and once this is signed, there's a free and harmless clause. The manufacturers are free from liability, not suits.

Q: The law does not protect any pharmaceutical company from suits but only from liability, but how will you define liability if suits are not included?

SFMD: Suits can be included. But what is critical is the free and harmless cause from liability, because damages can be filed against the manufacturers for any damage caused by the vaccine. Remember, the Dengvaxia controversy. Why suddenly the manufactures require an indemnity clause? Because of their experience on the way the Dengvaxia controversy was handled against Sanofi. In fact, there are statements made by Sec. Galvez that number one, we are the only country that an indemnity agreement is required and this is because of the dozens of cases filed by PAO chief Acosta.

Q: In the beginning, it was made to believe that the WHO Covax facility was requiring an indemnity agreement. Is it the WHO Covax facility or is it Pfizer and AstraZeneca?

SFMD: I have no personal information on that but I would not be surprised if both Covax and Pfixer and AstraZeneca would require the same free and harmless clause being included in the supply agreements.

Q: Is this the reason why we still really don't have the vaccines?

SFMD: I do not know if this is the only reason.

Q: We keep hearing that we need an indemnity agreement, but is it really the only reason? Singapore, Myanmar, Laos, Indonesia, Cambodia, and Vietnam, they are already inoculating.

SFMD: Now you include Bangladesh, much poorer than us and a few other countries. To me, this is not the only reason. I think just like the way COVID-19 pandemic was handled, there is mismanagement in handling the supply agreements. Of course, there are certain aspects that cannot be blamed on the government. For example, the sudden demands for the indemnity agreement as a result of the Dengvaxia-Sanofi cases. There are a lot of other factors. For example, our refusal to make advanced payments. This is authorized under the law. These are commercial transactions and with the supply very tight, we have to fall in line. This is just the reality in this situation. The manufacturers are commercial establishments and they have their own interest to protect; and requiring an advance payment is something we cannot complain about.

We have to cue and we are last in the cue because of our failure to make an advance payment early enough. These alleged indemnity agreements are not the cause of these delays. If this is the cause, we should have been informed as early as July of last year. The fact that this is only foisted to us last week is an indication that the supply agreement is not the cause of the delays. Unfortunately, I have already seen in the media some blame being put on Congress for failing to pass his law. That's totally unfair. There are indemnity agreements that have been signed in some instances and that was without a law. It is the mismanagement of this entire process that caused the delay in our procurement.

Q: You say it is really the mismanagement of the process but are our laws too restrictive? Did we really need a law or some kind of exemption to pre-pay?

SFMD: No. Under a law, we are allowed to pre-pay in case of emergency situations. The pandemic is an emergency situation which allows us to pre-pay beyond the 15% that is authorized under the law. I repeat, the 15% is allowed under the law but in cases of emergencies, this can be increased. There is no need for a law.

Q: If there is no need for a law, why is pre-payment included in the bill?

SFMD: Just so we can let these things move, para wala ng diskusyon, okay, let's do it. But I maintain that as an emergency procurement, you can go beyond 15 percent. In fact, that is cited in the proposed measure. The Senate bill cites the provision of the auditing code which allows the advance payment beyond 15%/.

The other thing that I must highlight is that in this law, only the DOH and the national task force can purchase vaccines and no other entity can purchase the vaccines. Given that this is an emergency situation, the power to purchase medicines is located only in the DOH and the task force. You cannot purchase it on your own, again, because of the situation. It imposes a provision which will impose a, in effect, a price uniformity. The LGUs and the private sector cannot offer prices higher than that offered by the NTF to entice the supply. There is also that limitation.

Apart from that, the law also provides for a prioritization of the sectors where the vaccines would be applied given the supply is limited. Basically, we talk about the medical workers, indigents, senior citizens, and in the private sector, they included essential economic workers. For the private sector, the importation of vaccines cannot be used for sale.

Finally, please note that the free and harmless clause in the law would apply only to vaccines validly procured. If the vaccine is validly procured, then the medical workers and whoever are involved in the procurement and administration of the vaccines are not liable unless they are grossly negligent or guilty of misfeasance. This only applies to validly procured vaccines, not to smuggled vaccines.

Q: Section 9 of this bill is the indemnification fund and the Senate version sets aside P500M. You did say that this was unnecessary.

SFMD: That's correct. To me the contingent fund is precisely placed there to answer for contingencies which were not predicted at the time the budget was crafted. The contingent fund can be tapped. Although Senator Recto cited no need for the P500 million because, according to Sen. Recto, there are enough reserved funds in PhilHealth to answer for this.

Q: Doesn't this (indemnity fund) ease anxiousness of fear?

SFMD: I agree, Karen. That is why I suggested the contingent fund, because it would allay fears. It will also improve the confidence level of the citizenry on the vaccines. It will encourage more people to avail of the vaccines. Remember that according to surveys, 1 out of every 2 would not want to be vaccinated. In fact, it is higher in the NCR. What does this mean? This means lack of confidence in the vaccine. That's why I have been saying we must improve our communication. The news reports that are coming out are so conflicting. It does not enhance the people's confidence in the vaccines.

Again, you are correct that this half a billion pesos placed there would increase the confidence of our people that they have funds to look to in case something happens to them. Also, for the medical workers, given the controversy generated because of the Dengvaxia resulted in PAO chief Acosta filing cases all over the place. Kawawa itong health workers who are made defendants in these cases, because they cannot avail of lawyers from the government. They had to spend for their own lawyers. They were only doing their jobs. Not only that they have to spend on their own on one case, they have cases spread all over the Philippines. These poor medical workers, because of this strategy adopted by Acosta, are now spending their own funds - I am not saying they are not liable - but it almost borders on harassment when you filed cases all over the place.

Q: Would the Philippines sending out an indemnity agreement be dependent on the law being passed?

SFMD: No, because the President can bind the country. It does not need a law to hold the manufacturers free and harmless except where they are negligent. The President has full power to bind the country.

Q: Sec. Galvez said that the Philippines has already signed the indemnity agreements. This particular delay, is it a delay coming from the Philippines or is it a manufacturing issue?

SFMD: To me, the indemnification requirement is borne out by the events that transpired in Sanofi, especially Sec. Galvez said that news of warrants of arrest against Sanofi officials came out, then suddenly this requirement was imposed. Really, it should be looked at in the context of the way Acosta handled the Sanofi controversy.

Q: On the use of Sinovac vaccines

SFMD: You cannot use Sinovac without an EUA. There is no debate, you cannot use Sinovac vaccines regardless of its safety and efficacy, unless an EUA is issued by the FDA. That is the law.

Q: Some say that we did focus on more Western vaccines. Could the Philippines and China work together to work on Sinovac.

SFMD: You cannot grant that kind of a discretion. There are certain standards imposed on the issuance of an EUA and this cannot be subject to diplomatic solutions or governments working together, because that is a safety and health measure imposed by the law in exercise of the police power to protect our population.

If documents were submitted on time, there is no question that our FDA will be working on this. Why couldn't Sinovac haven't submitted the documents last year? Why was it only in February and up to now it is not even complete? The FDA is obligated under the law, they have no choice but to re-examine this.

Q: You believe in the end, the reason that we don't have vaccines is because of mismanagement and the refusal of the government to pre-pay earl on?

SFMD: Yes, will all due respect to Sec. Galvez, who is trying his best, really, it's the whole process that we are not able to manage the pandemic better that we are in this situation. Even the President asked, where are the vaccines? This is already a sign of exasperation. Bakit wala pa ang bakuna hanggang ngayon kung saan yung ibang bansa na mas mahirap pa sa atin, katulad ng Bangladesh, ay mayroon ng vaccines. You cannot help but wonder why, if poorer nations, presumably whose systems are not any better than us, can move faster.

Q: On shifting to MGCQ

SFMD: I have always believed that the matter of the quarantine, whatever kind of quarantine is imposed, should be based on science and evidence, not on anything else. It must be part of a general plan. The difficulty that we had at the start of the pandemic is we keep in imposing quarantine restrictions without a pan. We keep on imposing quarantine all over the place. We have no tracing facilities in place which could have effectively prevented the spread of the virus. We did not have in place. In fact, up to now I doubt if we hired enough people to do contact tracing.

Again, I repeat it should be based on science and evidence.

Number two, there should be a unity. There must not be discordant voices. The differences in opinion do not augur well for the confidence of the people. Nahihilo yung mga tao. The extent of the influence on the behaviour of the people would depend on the credibility of the people who are making announcements.

Q: On the vaccination passport. Do you see this as a possible bias against those who may not want to take the vaccine?

SFMD: That's a valid argument. In fact, to me, I don't see the need for this passport to be issued to everyone who is vaccinated. We have a certificate issued to us when we travel to countries exposed to the virus. It is only issued to those who are required, not to everyone who is vaccinated. This must be reviewed.

Q: Although the WHO did say that they are discussing, many Western countries are going to require some proof of vaccination before you travel.

SFMD: If it is required by the country of destination, no question about it. But to require the issuance to, assuming, 70 million Filipinos, is something that I haven't heard of. That is the most practical argument against this. We are not objecting to the issuance of the passport per se. what we are saying is do not require it of every 70 million Filipinos or so.

Q: Do we need Bayanihan 3?

SFMD: I do not know. First, let me make this clear. When we have the budget, the common misconception is we can already spend. No, the budget is nothing more than an authority to spend public funds. The question that should be raised is, first, we already have three laws which provide authority to spend for public funds (Bayanihan 2, GAA 2020 and GAA 2021). How much have been released and how much have been disbursed? These are important factors before we decide.

Q: On Cha-cha

SFMD: The proposed amendment is, "unless otherwise provided by law." So, the amendment does not change policy. It maintains the present policy in the Constitution unless otherwise provided by law. This is not a silver bullet which will bring investment in. No way. What we can do is pass certain economic measures which remain pending, including the proposed amendments to Public Service Act and the Retail Trade Rationalization Act. I have filed bills in these two aspects. Again, I would repeat the proposed amendment will simply say "unless otherwise provided by law." It only allows the Congress to change policies without amending the Constitution. There is no expressed amendment to any so-called restrictive provisions of the Constitution.

Q: Clearly, by the end of the day you are seeing that the COVID-19 bill will be passed.

SFMD: Yes, even if I am in the opposition, this is a bipartisan measure and we will support it. We will support it with proper safeguards and correct principles but we will support it. In fact, I have requested that I be made co-author even though I am the minority leader, because we want to show our people that when it comes to this matter there is unity in government.