Supreme Court suit vs PH use of Sinovac fails

The Supreme Court en banc voted unanimously, 14-0, to dismiss a petition that sought to stop President Rodrigo Duterte's government from getting and then administering Sinovac COVID-19 vaccines.

The petition failed in all aspects – on merits and on procedure, as the justices were one in deciding that there is no law that requires the government to do or show additional clinical trials for the vaccine.

"In the absence of proof that the grant of an EUA was not made in accordance with law and prescribed procedure, this Court cannot issue an order that would stop the procurement and use of the Sinovac vaccine or require additional trials that are not mandated by law," said the 14-0 decision penned by Associate Justice Jhosep Lopez, promulgated May 11, but released only on Monday, July 12.

The petition, filed by former Boac, Marinduque mayor Pedrito Nepomuceno, was a petition for mandamus. A mandamus seeks to compel the government to perform a duty or an obligation.

The petition's argument is that there were doubts on the efficacy of Sinovac, and the Food and Drug Administration or FDA's emergency use authorization (EUA) was issued without any conclusive result from completed clinical trials.

But under what law does that obligation fall?

"During the time when the national government planned to procure and enter into contracts for the procurement of the Sinovac vaccine, there was no law in effect that required the mandatory conduct of clinical trial for the procurement of any COVID-19 vaccine, including that produced by Sinovac," the Supreme Court said.

Discretion

The Supreme Court said that the laws in play actually give the government discretion in its vaccine procurement:

  1. Republic Act 11494 or Bayanihan to Recover as One signed in September 2020
  2. RA 11525 or COVID-19 Vaccination Program Act signed in July 2020
  3. Duterte's Executive Order (EO) 121 signed in December 2020 granting authority to the FDA to issue EUAs

To issue an EUA, Section 1 of Duterte's EO 121 required only "totality of evidence available, including data from adequate and well-known controlled trials," and that "it is reasonable to believe that the drug or vaccine may be effective to prevent, diagnose or treat COVID-19."

"The issuance of an EUA precludes the need for the completion of the conduct of clinical trials," said the Supreme Court.

"In the case of Sinovac vaccine, while many doubt its efficacy, it is not within the office of this Court to issue an order compelling government to conduct further tests before the same can be distributed to the Filipino people," said the justices.

Doubts on the efficacy of Sinovac rose after neighboring countries like Indonesia and Thailand considered offering a booster shot to their medical workers immunized with Sinovac's COVID-19 vaccine.

Not the proper route

The Supreme Court reiterated that they are not triers of fact.

"A challenge to the efficacy of the Sinovac vaccine is a question of fact that is beyond the scope of this Court's jurisdiction," said the Supreme Court, again sending signals to future petitioners to consider their routes and strategies for similar cases.

The Supreme Court answers questions of law – whether or not a law, or a policy, is illegal or unconstitutional.

"Petitioner failed to point out any question of law worthy of consideration by this Court," said the justices.

Immunity from suit

Lastly, the Supreme Court said Duterte should not have been a respondent as the president is immune from suit.

"This Court holds and reminds litigants once again that an incumbent President of the Republic of the Philippines cannot be sued in any proceeding," said the Court.

The issue of whether presidential immunity from suit is absolute has been tackled time and again in the Supreme Court, most recently in the habeas data suit filed by Senator Leila de Lima against Duterte.

De Lima lost that suit because of presidential immunity, but Associate Justice Marvic Leonen said in a separate opinion that "the president is not immune from the proceedings for the issuance of a writ of habeas data because it is not criminal, civil, or administrative in nature."

A similar suit to compel the Duterte government to conduct mass testing also failed for the same procedural reasons.

Rappler.com

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 lian.buan@rappler.com or tweet @lianbuan.

image