For now, it would be the call of law enforcers if they can arrest House Deputy Speaker Rodante Marcoleta and Anakalusugan Representative Mike Defensor for openly distributing the unregistered anti-parisitic drug ivermectin for COVID-19 treatment, Justice Secretary Menardo Guevarra said on Thursday, April 29.

“For now, that’s the call of law enforcement agents,” Guevarra said in a mix of English and Filipino in an exchange with reporters on Thursday.

Marcoleta and Defensor have distributed free Ivermectin to around 500 people in a covered court in Quezon City on Thursday.

The Food and Drug Administration (FDA) allows the use of ivermectin for humans only on two instances – if the medical facility dispensing the drug secured a compassionate special permit (CSP), or if a doctor has prescribed it and the drug is compounded by a pharmacist according to the prescription.

So far, the FDA has granted CSPs to five hospitals to use ivermectin for COVID-19 treatment. A CSP allows for the limited use of investigational drugs or unregistered drugs only in medical facilities that secured permits.

“On its face, it would appear that the distribution of ivermectin as possible treatment for COVID-19 apparently violates the FDA law,” Guevarra told ANC’s Headstart on Thursday.

The Department of Health (DOH) had said as much earlier in April, when Health Undersecretary Maria Rosario Vergeire said that that people who are “dispensing” ivermectin to treat COVID-19 are violating Republic Act (RA) No. 9711 or the Food and Drug Administration (FDA) Act of 2009, as this type of ivermectin is not yet registered in the country.

Guevarra, however, did not directly answer follow-up questions on whether Marcoleta and Defensor can be arrested without warrant on the principle of being caught in the act – one of the three valid grounds for a warrantless arrest.

“The legal basis for the two exceptional situations is not clear, so I will defer my answer to your question,” the justice chief said.

Guevarra was referring to the exemptions on compassionate use and doctor’s prescription, but even the justice secretary said, “I’m not too sure about the soundness of the legal basis for the exemptions.”

Residents who lined up for ivermectin on Thursday needed to fill out a checklist, with doctors present to give prescription, afterwards they get the readily available drug on the spot. They also needed to sign a waiver.

“That person’s waiver does not extinguish any criminal liability, assuming such liability has been independently established,” said Guevarra.

Warrantless arrest

In 2019, after a complaint was filed against the Kapa-Community Ministry over an investment scam, an alleged violation of the Securities Regulations Code, Guevarra threatened warrantless arrest against any Kapa agents caught soliciting investments.

When it was pointed out to Guevarra that the Kapa Ministry case and the lawmakers’ distribution of ivermectin appear similar in this regard, and asked for a more direct answer, Guevarra said, “Note the exceptions cited by the FDA head.”

Reporters then asked Guevarra if the FDA exemptions legal defense is appropriate only when a complaint is filed before a prosecutor, and if the existing facts – the lawmakers’ distribution of ivermectin – do not support a a warrantless arrest.

“Our prosecutors will make a ruling when the issue is actually before them. For now, that’s the call of law enforcement agents,” Guevarra said in response.

“I wouldn’t really blame representatives Defensor  and Marcoleta if they would proceed but as I said, this is subject to a further determination if there is legal basis for the exemption. So I leave it to them. I think their purpose is, because their, their well being and what they want to do,” Guevarra told ANC.

He said, however, that there is still the matter of the “legal consequences.”

“That’s something for us to see at a future time,” the secretary added in the ANC interview.

The Department of Justice (DOJ) under the Duterte administration has breathed new life to the definition of warrantless arrests and the principle of continuing offense. It was upon DOJ’s signal that police arrested thousands of Filipinos who violated stay-at-home rules during the pandemic.

There is an ongoing public debate over the use of ivermectin to treat COVID-19 – with some doctors recommending it and patients sharing how it had been beneficial to them, while other medical experts warned against its unproven use against the coronavirus disease.

In an April 21 opinion piece published in the Philippine Daily Inquirer, former health secretary Manuel Dayrit and two other experts – University of the Philippines Professor Emeritus Gisela Concepcion, Philippine-American Academy of Science and Engineering (PAASE) president, and Leodevico Ilag – stressed the urgency of FDA action on ivermectin amid the continued lack of consensus and “under conditions of war.”

The DOH said earlier in April that the FDA was processing an application for product registration of ivermectin for human use in the country.

In the Philippines, the only ivermectin currently allowed – and freely sold online – is for the treatment of animal intestinal parasites and ectoparasites such as fleas and mites. For humans, ivermectin available in the country is “in topical formulations under prescription use only,” the FDA had said.

Amid the debates, President Rodrigo Duterte ordered the Department of Science and Technology (DOST) and DOH to study the use of ivermectin as a possible treatment against COVID-19. He gave the order a week after the DOST itself said there was no need for local studies as there were ongoing trials abroad. – Rappler.com