Will the graft raps vs Garin, 4 ex-DOH execs prosper?

By Gerome Dalipe

The Office of the Ombudsman has indicted former health secretary and now Iloilo 1st District Representative Janette Garin and four other individuals of graft and technical malversation charges over the Dengvaxia controversy.

Apart from Garin, her co-respondents are former acting director Maria Joyce Ducusin, former Department of Health (DOH) undersecretary Gerardo Bayugo, former DOH undersecretary Kenneth Hartigan-Go, and former Philippine Children’s Medical Center chief Julius Lecciones.

The anti-graft office, in its 152-page resolution dated July 19, found probable cause to charge the respondents with violation of Section 3 (e) of Republic Act No. 3019 or Anti-Graft and Corrupt Practices Act before the Sandiganbayan.

Will the charges against the respondents prosper?

Section 3 (e) of RA 3019 punishes corrupt practices of any public officer causes “undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.”

In order to secure the conviction of the respondents, the Supreme Court, in the case of Cabrera versus Sandiganbayan has laid down the essential elements of the crime:

1. The accused must be a public officer discharging administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or [gross] inexcusable negligence; and
3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.

The first punishable act is that the accused is said to have caused undue injury to the government or any party when the latter sustains actual loss or damage, which must exist as a fact and cannot be based on speculations or conjectures.

The loss or damage need not be proven with actual certainty. However, there must be “some reasonable basis by which the court can measure it.” Aside from this, the loss or damage must be substantial. It must be “more than necessary, excessive, improper or illegal.”

The second punishable act is that the accused is said to have given unwarranted benefits, advantage, or preference to a private party. Proof of the extent or quantum of damage is not thus essential. It is sufficient that the accused has given “unjustified favor or benefit to another.”

In indicting the respondents, the Ombudsman said they gave “unusual treatment and accommodation” to Sanofi when they approved its marketing authorization application for Dengvaxia sans complete documentation.

The case stemmed from the complaint filed before the Ombudsman by the Volunteers Against Crime and Corruption and Vanguard of the Philippine Constitution, Inc.

About42 respondents were sued, including late former president Noynoy Aquino, former budget secretary Florencio “Butch” Abad, and representatives of private companies Sanofi and Zuellig.

On the other hand, the Ombudsman said found no probable cause to charge all the respondents for alleged violation of section 65(3) of Republic Act (RA) No. 9184 or Government Procurement Reform Act, and Article 365 of the RPC (criminal negligence).