Where are the vaccines?

President Duterte railed in September 2020 against Western vaccine manufacturers for requiring vaccine buyers to make advance payments from 30 to 50 percent of the purchase price. The President stated that Philippine law prohibits making advance payments for products still to be produced. However, only an administrative rule, which the President can change any time, prohibits advance payments beyond 15 percent. Existing law expressly allows advance payment without limitation subject to the approval of the President in cases of emergencies or calamities. In fact, several days before the President raised the alleged legal prohibition, the Office of the President authorized the Department of Health to purchase personal protection equipment and other medical paraphernalia with advance payment of up to 50 percent.

The President also declared last March 22, 2021, that it is “illegal” for the government to grant vaccine manufacturers immunity from suit if the vaccines cause death or side effects on those vaccinated. The President further fumed at a proposal to create a government fund to indemnify those who die or suffer side effects from the vaccination, saying that vaccine manufacturers should shoulder such indemnification. The President forgot that he had earlier certified as urgent and necessary the enactment by Congress of a bill granting such immunity from suit to vaccine makers unless there is willful misconduct or gross negligence on the part of vaccine manufacturers. He had also certified the creation of a government-financed indemnity fund. In fact, 23 days before the President ranted against the grant of immunity and the creation of an indemnity fund, he had signed into law the COVID-19 Vaccination Program Act of 2021 precisely granting such immunity and creating a P500-million indemnity fund.

Vaccine manufacturers are, of course, now wary of selling vaccines to the Philippines even with the passage of a law granting them immunity from suit and creating an indemnity fund. Foreigners know only too well that the Duterte administration had torn apart, without any due process, the signed concession contracts of Manila Water and Maynilad Water. The Duterte administration is now forcing the water concessionaires to accept government-dictated concession contracts. Yes, there is law but the Duterte administration does not respect the law. The vaccine manufacturers might require the Duterte administration to expressly retract what the President had stated. It would do well for the President to make the retraction on his own before he is forced to do so. In South America, Pfizer still refuses to sell vaccines to Brazil and Argentina over a dispute on immunity from suit.

Up to now the Philippine government has not purchased any vaccine from Western manufacturers. As the President expressly admitted last March 24, 2021: “Bakunang nabili? Wala. Wala tayong bakunang nabili. Wala pa.” Finance Secretary Sonny Dominguez explained that to procure vaccines, the government has obtained loans from the World Bank, Asian Development Bank, and the Asian Infrastructure Investment Bank. Dominguez said that these loans “are being processed for signing this March 2021 with an indicative aggregate loan amount of US$1.2 billion.” As of end of March 2021, these loan agreements had not yet been signed and thus there are still no funds to buy the Western vaccines.

The significance of the absence of funds is found in Sections 40 and 43, Book VI, of the Administrative Code of 1987: “xxx no expenditures or obligations chargeable against any authorized allotment shall be incurred or authorized in any department xxx without first securing the certification of its Chief Accountant xxx as to the availability of funds xxx. Every payment made in violation of said provisions shall be illegal xxx. Any official or employee of the Government knowingly incurring any obligation or authorizing any expenditure in violation of the provision herein xxx shall be dismissed from the service xxx.” In short, unless funds are actually available, the law prohibits the signing of any government contract to procure vaccines.

This late the national government has not signed a single contract to purchase a single dose of Western vaccine. Is this deliberate or merely incompetence? We just received a shipment of “procured” Chinese vaccines. The Duterte administration must have found available funds from the existing General Appropriations Act to sign the Sinovac contract. Where there is a will, there is a way.

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