In Social Justice Society vs. Dangerous Drugs Board, G.R. No. 157870 (and other
consolidated petitions), November 3,
2008, the petitioners sought the nullification of the drug testing
requirement under Sec. 36, paragraphs (c), (d), (f) and (g) of R.A. No. 9165,
or the Comprehensive Dangerous Drugs Act of
2002.
More
particularly, the consolidated petitions challenge the constitutionality of the
mandatory drug testing on (1) students of secondary and tertiary schools; (2)
officers and employees of public and private offices; and (3) persons charged
before the prosecutor’s office of a crime with an imposable
penalty of imprisonment of not less than 6 years and 1 day, and (4) candidates for public office.
The
challenged section reads:
SEC. 36. Authorized Drug
Testing. Authorized drug testing shall be done by any government forensic
laboratories or by any of the drug testing laboratories accredited and
monitored by the DOH to safeguard the quality of the test results. x x x
The drug testing shall employ, among others, two (2) testing methods, the
screening test which will determine the positive result as well as the type of
drug used and the confirmatory test which will confirm a positive screening
test. x x x The following shall be subjected to undergo drug
testing:
xxx xxx xxx
(c) Students of secondary and tertiary
schools. Students of secondary and tertiary schools shall, pursuant to the
related rules and regulations as contained in the school's student handbook and
with notice to the parents, undergo a random drug testing x x x;
(d) Officers and employees of public
and private offices. Officers and employees of public and private offices,
whether domestic or overseas, shall be subjected to undergo a random drug test
as contained in the company's work rules and regulations, x x x for purposes of
reducing the risk in the workplace. Any officer or employee found
positive for use of dangerous drugs shall be dealt with administratively which
shall be a ground for suspension or termination, subject to the provisions of
Article 282 of the Labor Code and pertinent provisions of the Civil Service
Law;
xxx xxx xxx
(f) All persons charged before the
prosecutor's office with a criminal offense having an imposable penalty of
imprisonment of not less than six (6) years and one (1) day shall undergo a
mandatory drug test;
(g) All candidates for public office
whether appointed or elected both in the national or local government shall
undergo a mandatory drug test.
Sec. 36(g) is implemented by COMELEC Resolution No. 6486.
The issues
Petitioner Senator Pimentel claimed that Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that, subject to the
provisions on nuisance candidates, a candidate for senator needs only to meet
the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit:
(1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. Beyond these stated qualification requirements, candidates for
senator need not possess any other qualification to run for senator and be
voted upon and elected as member of the Senate. He therefore raised the following
issue: Do Sec. 36(g) of RA 9165
and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing
qualifications for candidates for senator in addition to those laid down by the
Constitution?
Petitioners Social
Justice Society and Laserna also assailed the constitutionality of paragraphs (c), (d), and (f) of Sec. 36.
The ruling of the Court
A unanimous Court, speaking through Mr. Justice Presbitero Velasco Jr., GRANTED the petition in G.R. No. 161658
and declared Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 as UNCONSTITUTIONAL. It also PARTIALLY GRANTED the petition in G.R. Nos. 157870 and 158633 by
declaring Sec. 36(c) and (d) CONSTITUTIONAL,
but declaring its Sec. 36(f) UNCONSTITUTIONAL.
On the first issue, the
Court sustained the contention of petitioner Pimentel and held that Sec. 36(g)
of RA 9165 and COMELEC Resolution No. 6486 indeed impose an additional
qualification for candidates for senator. The Court also held that Congress
CANNOT enact a law prescribing qualifications for candidates for senator in
addition to those laid down by the Constitution:
Sec. 36(g) of RA 9165, as sought to be implemented by the
assailed COMELEC resolution, effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate
for senator to be certified illegal-drug clean, obviously as a pre-condition to
the validity of a certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be
proclaimed as senator-elect. The COMELEC resolution completes the chain with
the proviso that “[n]o person elected to any public office shall enter upon the
duties of his office until he has undergone mandatory drug test.” Viewed,
therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add
another qualification layer to what the 1987 Constitution, at the minimum,
requires for membership in the Senate. Whether or not the drug-free bar
set up under the challenged provision is to be hurdled before or after election
is really of no moment, as getting elected would be of little value if one
cannot assume office for non-compliance with the drug-testing requirement.
On the second issue, the
Court held that paragraphs (c) and (d) of Sec. 36 are NOT UNCONSTITUTIONAL. The
Court however held that paragraph (f) is UNCONSTITUTIONAL. The Court cited
American jurisprudence on random drug testing for school children (Vernonia School District 47J
v. Acton and Board of Education of Independent School District No. 92 of
Pottawatomie County, et al. v. Earls, et al.) to sustain paragraph (c), thus:
In sum, what can reasonably
be deduced from the above two cases and applied to this jurisdiction are: (1)
schools and their administrators stand in loco parentis with respect to their students; (2)
minor students have contextually fewer rights than an adult, and are subject to
the custody and supervision of their parents, guardians, and schools; (3)
schools, acting in loco parentis, have a duty to safeguard the health and well-being of their
students and may adopt such measures as may reasonably be necessary to
discharge such duty; and (4) schools have the right to impose conditions on
applicants for admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165
requiring mandatory, random, and suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of educational institutions to require, as
a condition for admission, compliance with reasonable school rules and
regulations and policies. To be sure, the right to enrol is not absolute;
it is subject to fair, reasonable, and equitable requirements.
The Court can take judicial
notice of the proliferation of prohibited drugs in the country that threatens
the well-being of the people, particularly
the youth and school children who usually end up as victims. Accordingly, and
until a more effective method is conceptualized and put in motion, a random
drug testing of students in secondary and tertiary schools is not only
acceptable but may even be necessary if the safety and interest of the student
population, doubtless a legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia, “[d]eterring drug
use by our Nation’s schoolchildren is as important as enhancing efficient
enforcement of the Nation's laws against the importation of drugs”; the
necessity for the State to act is magnified by the fact that the effects of a
drug-infested school are visited not just upon the users, but upon the entire
student body and faculty. Needless to stress, the random testing scheme provided under the law argues
against the idea that the testing aims to incriminate unsuspecting individual
students.
The Court also sustained
paragraph (d), which
covers officers and employees of
public and private offices, and held:
As the warrantless clause of Sec.
2, Art III of the Constitution is couched and as has been held, “reasonableness” is the touchstone of the validity of
a government search or intrusion. And whether a search at issue hews to the
reasonableness standard is judged by the balancing of the government-mandated
intrusion on the individual's privacy interest against the promotion of some
compelling state interest. In the
criminal context, reasonableness requires showing of probable cause to be
personally determined by a judge. Given
that the drug-testing policy for employees—and students for that matter—under
RA 9165 is in the nature of administrative search needing what was referred to
in Vernonia as “swift and informal disciplinary procedures,” the
probable-cause standard is not required or even practicable. Be that as it may,
the review should focus on the reasonableness of the challenged administrative
search in question.
The first factor to consider in
the matter of reasonableness is the nature
of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2,
Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the
backdrop for the analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees' privacy interest in
an office is to a large extent circumscribed by the company's work policies,
the collective bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain discipline
and efficiency in the workplace. Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of impingement upon such privacy
has been upheld.
Just as defining as the first
factor is the character of the intrusion
authorized by the challenged law. Reduced
to a question form, is the scope of the search or intrusion clearly set forth,
or, as formulated in Ople v.
Torres, is the enabling law
authorizing a search "narrowly drawn" or "narrowly
focused"?
The poser should be answered in
the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and
regulations (IRR), as couched, contain
provisions specifically directed towards preventing a situation that would
unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment
is under the law deemed forewarned that he or she may be a possible subject of
a drug test, nobody is really singled out in advance for drug testing. The goal
is to discourage drug use by not telling in advance anyone when and who is to
be tested. And as may be observed, Sec.
36(d) of RA 9165 itself prescribes what, in Ople, is a
narrowing ingredient by providing that the employees concerned shall be
subjected to “random drug test as contained in the company’s work rules and
regulations x x x for purposes of reducing the risk in the work place.”
For another, the random drug testing shall be undertaken under
conditions calculated to protect as much as possible the employee's privacy and
dignity. As to the mechanics of the test,
the law specifies that the procedure shall employ two testing methods, i.e.,
the screening test and the confirmatory test, doubtless to ensure as much as
possible the trustworthiness of the results. But the more important
consideration lies in the fact that the test shall be conducted by trained
professionals in access-controlled laboratories monitored by the Department of
Health (DOH) to safeguard against results tampering and to ensure an accurate
chain of custody. In addition, the IRR issued by the DOH provides that access
to the drug results shall be on the “need to know” basis; that the “drug test result and the records shall be
[kept] confidential subject to the usual accepted practices to protect the
confidentiality of the test results.” Notably, RA 9165 does not oblige
the employer concerned to report to the prosecuting agencies any information or
evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug
testing. All told, therefore, the
intrusion into the employees’ privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test results, and is
relatively minimal.
Taking into account the foregoing
factors, i.e., the reduced expectation of privacy on the part of the employees,
the compelling state concern likely to be met by the search, and the
well-defined limits set forth in the law to properly guide authorities in the
conduct of the random testing, we hold that the challenged drug test requirement
is, under the limited context of the case, reasonable and, ergo,
constitutional.
Like their counterparts in the
private sector, government officials and employees also labor under reasonable
supervision and restrictions imposed by the Civil Service law and other laws on
public officers, all enacted to promote a high standard of ethics in the public
service. And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it should pass the
test for civil servants, who, by constitutional command, are required to be
accountable at all times to the people and to serve them with utmost
responsibility and efficiency.
The Court however sustained
the challenge to paragraph (f), holding that it found
no valid justification for mandatory drug testing for persons accused of crimes.
It elaborated as follows:
Unlike the situation covered by
Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of crimes. In the case of students,
the constitutional viability of the mandatory, random, and suspicionless drug
testing for students emanates primarily from the waiver
by the students of their right to privacy when they seek entry to the school,
and from their voluntarily submitting their persons to the parental authority
of school authorities. In the case of
private and public employees, the constitutional soundness of the mandatory,
random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and
requirement.
We find the situation entirely
different in the case of persons charged before the public prosecutor's office
with criminal offenses punishable with 6 years and 1 day imprisonment.
The operative concepts in the mandatory drug testing are “randomness” and
“suspicionless.” In the case of persons charged
with a crime before the prosecutor's office, a mandatory drug testing can never
be random or suspicionless. The
ideas of randomness and being suspicionless are antithetical to their being
made defendants in a criminal complaint. They are not randomly picked;
neither are they beyond suspicion. When persons suspected of committing a
crime are charged, they are singled out and are impleaded against their
will. The persons thus charged, by the bare fact of being haled before
the prosecutor’s office and peaceably submitting themselves to drug testing, if
that be the case, do not necessarily consent to the procedure, let alone waive
their right to privacy. To
impose mandatory drug testing on the accused is a blatant attempt to harness a
medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in
this case would violate a person’s right to privacy guaranteed under Sec. 2,
Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves.
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