Wednesday, February 04, 2009

Mandatory drug testing constitutional for students and employees but not for senators and persons accused of crimes

The Supreme Court, through a unanimous decision dated November 3, 2008 and penned by Justice Presbitero J. Velasco, Jr, declared as unconstitutional the provisions of RA 9165 (Comprehensive Dangerous Drugs Act of 2002) requiring mandatory drug testing of candidates for senator and persons accused of crimes.

However, the Court upheld the constitutionality of the said law insofar as random drug testing for secondary and tertiary school students as well as for officials and employees of public and private offices is concerned.

Separate petitions questioning the constitutionality of these portions of RA 9165 were filed by Sen. Aquilino Pimentel Jr, Atty. Manuel Laserna and the Social Justice Society. Sen. Pimentel also questioned the validity of COMELEC Resolution No. 6486, alleging that the same created an additional qualification for candidates for senators in addition to those provided in the 1987 Constitution by requiring that the candidates be certified as drug-free.

Highlights of the Court’s decision

[1] The unconstitutionality of Sec. 36(g) of RA 9165 “is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.”

In declaring Sec. 36(g) unconstitutional, the Court said that the same “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 senator-elect,” adding that the assailed provision of the law and the COMELEC Resolution “add another layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate.”

[2] There is no valid justification for mandatory drug testing for persons accused of crimes, as required by Sec. 36(f) of the law, as a mandatory drug testing in the case of persons charged with a crime before the prosecutor’s office “can never be random or suspicion-less.”

The Court said, “When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will.” 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.”

[3] Mandatory drug testing of secondary and tertiary school students is constitutional. The Court, taking note of the proliferation of prohibited drugs in the country which threaten “the well-being of the people, particularly the youth and school children who usually end up as victims,” stated that 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.”

[4] Mandatory but random drug testing is justifiable for officers and employees of public and private offices. As the Court ruled, “The need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest under the premises.”

Safeguards against the violation of rights of students and employees

The Court, taking into account the reduced expectation of privacy on the part of 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 random drug testing, held that the challenged drug test requirement for those employed in public and private offices is, under the limited context of the case, reasonable and constitutional.

The Court also noted that Sec. 94 of RA 9165 charges the Dangerous Drugs Board to issue, in consultation with the Departments of Health, Interior and Local Government, Education, and Labor and Employment, among other agencies, the Implementing Rules and Regulations (IRR) necessary to enforce the law. The Court ruled that “in net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.”

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