Can lawmakers be arrested for distributing ivermectin? Up to law enforcers, says justice chief

Mike Navallo, ABS-CBN News

Posted at Apr 29 2021 02:10 PM

Can lawmakers be arrested for distributing ivermectin? Up to law enforcers, says justice chief 1
Lawmakers lead distribution of Ivermectin to residents of Barangay Old Balara in Quezon City on Thursday. Mark Demayo, ABS-CBN News

MANILA — Justice Secretary Menardo Guevarra said Thursday it was up to law enforcers to decide whether or not they would arrest 2 lawmakers distributing ivermectin, which is not registered for human use nor for COVID-19 treatment in the Philippines.

“Call 'yan ng (It's the call of) law enforcement agents,” he told reporters when asked if there is basis for a warrantless arrest as they were supposedly in the act of violating the law.

Anakalusugan Party-list Rep. Mike Defensor and Sagip Party-list Rep. Rodante Marcoleta on Thursday distributed ivermectin to residents of Quezon City.

Guevarra, on ANC’s Headstart, said the distribution of ivermectin “apparently violates the FDA law.”

Republic Act No. 3720, as amended by RA 9711 or the FDA Act of 2009, prohibits the manufacture, importation, exportation, sale, offering for sale, distribution, transfer, non-consumer use, promotion, advertising, or sponsorship of any health product that is adulterated, unregistered or misbranded.

It also prohibits the manufacture, importation, exportation, sale, offering for sale, distribution, transfer, non-consumer use, promotion, advertisement, or sponsorship of any health product which, although requiring registration, is not registered with the FDA.

The law imposes jailtime on violators of between 1 year and 10 years and fines ranging from P50,000 to P5 million, depending on the level of involvement.

Under the Rules of Court, meanwhile, warrantless arrest is valid only on 3 occasions:

  • If a suspect is caught in the act of committing crime
  • Hot pursuit (offense has just been committed and police has probable cause based on personal knowledge to believe person committed it)
  • Arrest of escaped prisoner

Guevarra earlier said Defensor, as a lawmaker, should be aware of what acts are allowed and prohibited under the law.

On Thursday, however, Guevarra acknowledged there were 2 exemptions cited by FDA Director General Eric Domingo: through compassionate use authorization, and when it is compounded by duly licensed pharmacies. 

In both cases, these should be supported by a doctor's prescription.

“So, if Rep. Defensor and Rep. Marcoleta's act of distributing ivermectin would fall under any of these two situations, it would appear that they can put this up as a defense just in case a complaint is filed,” he said.

But Guevarra said the legal basis for the 2 exceptional situations was “not clear,” saying he will defer his answer if warrantless arrest can be made.

"Personally I'm not too sure whether these 2 exceptions cited by the FDA director general have a sound legal basis. That is something for further study. I’m not too sure about the soundness of the legal basis for the exemptions," he told Headstart.

"I wouldn’t really blame Representatives Defensor and Marcoleta if they would proceed . . . They’re well-meaning in what they want to do. The legal consequences is something for us to see at a future time,” he added.

In Defensor's and Marcoleta's distribution of ivermectin on Thursday, recipients were asked to sign an ivermectin request form with a waiver of liability.

But a waiver does not extinguish criminal liability, Guevarra said.

"In general, a criminal offense is committed against the People of the Philippines and not just against a particular person (except in private offenses such as adultery). So that person's waiver does not extinguish any criminal liability, assuming such liability has been independently established," he added.

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DOJ’S TRACK RECORD ON WARRANTLESS ARRESTS

Guevarra, in July 2019, warned Kapa Community Ministry International officials and members that they could face arrests without warrant if they continued to sell investments without a license.

In May 2019, DOJ prosecutors justified the warrantless arrest of Bikoy video-sharer Rodel Jayme not only as hot pursuit, but also saying that the offense was still being committed at the time of his arrest, effectively making the offense a continuing crime.

The DOJ also said last year, at the start of the COVID-19 lockdown, that quarantine violators can be immediately arrested without a warrant, only to call for community service instead of arrests and fines a year later.

The NBI last year arrested without warrant teacher Ronnel Mas who offered a bounty on social media for the President's life. 

Prosecutors initially ruled his arrest was illegal but his subsequent media confession cured the illegality. 

But an Olongapo court rejected this position and found Mas’ arrest illegal.

Prosecutors also junked a re-filed complaint against Mas due to the NBI’s failure to present additional evidence that he tweeted the controversial post.

The DOJ, meanwhile, had ruled out warrantless arrest over Sen. Koko Pimentel's alleged quarantine breach when he went to a hospital with his wife despite undergoing a COVID-19 test, which turned out positive. 

The DOJ eventually junked the complaint vs. Pimentel.