DOJ: Face shield tampering violates law, but needs complaint vs Pharmally

Lian Buan
DOJ: Face shield tampering violates law, but needs complaint vs Pharmally

TAMPERED. Senator Risa Hontiveros presents a witness, a Pharmally warehouse staff, who testified that they tampered with the face shields to show a later expiry date.

Photo from Senator Risa Hontiveros' presentation

Previously, the DOJ used its motu proprio power in opening investigations on several pandemic issues, like the spreading of fake news, selling vaccination slots, and hoarding medical supplies

Justice Secretary Menardo Guevarra admitted on Tuesday, September 28, that tampering with the expiry date of face shields is a violation of the consumer act, but insisted that there needs to be a complaint filed against Pharmally Pharmaceutical before they could investigate.

“Yes, tampering with the expiry date of a product is a violation of Article 40(a) of the Consumer Act. A device is deemed mislabeled if the labeling is false or misleading,” said Guevarra on Tuesday in response to a question from the media in the beat Viber group, asking about the provision.

Article 40(a) of the Consumer Act declares as a prohibited act “the manufacture, importation, exportation, sale, offering for sale, distribution or transfer of any food, drug, device or cosmetic that is adulterated or mislabeled.” It is punished with one to five years of imprisonment.

Two personnel, one of them the corporate representative, of government-favored supplier Pharmally Pharmaceutical, have admitted to tampering with the face shields meant for medical workers, by replacing stickers to bear a 2021 production date instead of 2020.

Health Secretary Francisco Duque III told the House of Representatives in Monday’s hearing that face shields usually have a shelf life of 36 months.

Former justice undersecretary Jose Justiniano told Rappler in a message Tuesday “changing the production date is mislabeling” and that “the law does not even require that somebody die or get sick.”

Justiniano’s comment was in reference to a question tossed to the Department of Health by DIWA Representative Michael Aglipay during the House’s Monday hearing. Aglipay is the chair of the  good government and public accountability panel which was conducting the House hearing.

May nagkasakit po ba o namatay (Did anyone get sick or die)?” Aglipay asked in the committee hearing that has largely echoed so far the line of defense of the Duterte government. Hearings at the House have even undermined the ongoing Senate blue ribbon committee investigations that extracted the tampering admission aside from other discoveries.

Needs a complaint

But Guevarra insisted that there must be a complaint filed before they could start investigating.

“All that is needed is for any affected or interested party to file a complaint,” said Guevarra.

But Guevarra did not need complaints before to order the National Bureau of Investigation (NBI) to do a motu proprio (on its own) case buildups on several pandemic issues for much lower thresholds.

For example, Guevarra has ordered NBI motu proprio investigations on coronavirus fake news, selling vaccination slots, and hoarding medical supplies.

“It all depends on the amount of evidence in any given case. If the evidence appears enough, the complainant may file directly with the prosecutor’s office. If there is need for a case build-up, further investigation by the NBI may be called for, and the NBI itself may eventually be the complainant,” said Guevarra, citing the procedure.

Pressed for a categorical answer if he will order an NBI motu proprio probe, Guevarra said: “When I said above that all that is needed is for any affected or interested party to file a complaint, am I not clear as to what i meant?”

“Now who do you think is the proper complainant for being given mislabeled devices?” he added.

“With 9 hearings by the Senate alone, two admissions from Pharmally on tampering, multiple documentary evidence on expired test kits, SEC records that bare lack of financial capacity – considering Bayanihan exemptions – and not least of it audit reports, the amount of evidence is still not enough to merit a motu proprio NBI case buildup?” a reported asked.

Guevarra said: “We’re only talking about face shields.”

Pharmally, despite having only P625,000 paid-up capital, was awarded at least P10 billion in government contracts – the biggest winner in all of pandemic procurements. Pharmally was financed and guaranteed by President Rodrigo Duterte’s former economic adviser, Michael Yang.

Pharmally is also owned by Singaporean Huang Tzu Yen who is wanted for financial crimes in Taiwan. Huang, Yang and Pharmally director Linconn Ong have met with Duterte in a meeting streamed by the RTVM.

In an earlier exchange, Guevarra said “we want to be sure that the parties concerned are given a fair chance to say what they need to say.”

“As I’ve said before, we’d rather see the bigger picture,” said Guevarra.

An NBI investigation is a venue of hearing both sides as a matter of procedure. Previous high-profile NBI investigations into Philhealth anomalies have resulted in complaints being filed.

The Philhealth investigation was done under the banner of a grand pronouncement by President Rodrigo Duterte last year to task DOJ as the lead of a mega task force to probe corruption.

Guevarra said before he would take the cue from the Ombudsman. Ombudsman Samuel Martires announced on September 9 he has opened a comprehensive fact-finding inquiry into the entire Pharmally issue, including issues within the Procurement Service of the Department of Budget and Management (PS-DBM).

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.