D E C I S I
O N
(En Banc)
(En Banc)
VELASCO, J.:
I.
THE FACTS
These
consolidated petitions challenge the constitutionality of Sec. 36 of R.A. 9165,
the Comprehensive Dangerous Drugs
Act of 2002, insofar as it requires mandatory drug testing of (1)
candidates for public office; (2) students of secondary and tertiary schools;
(3) officers and employees of public and private offices; and (4) 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.
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.
II.
THE ISSUES
1.
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?
2.
Are paragraphs
(c), (d), and (f) of Sec. 36, RA 9165 unconstitutional?
III.
THE RULING
[The Court 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) of RA 9165 CONSTITUTIONAL,
but declaring its Sec. 36(f) UNCONSTITUTIONAL. The
Court thus permanently enjoined all the concerned agencies from implementing Sec. 36(f) and (g) of RA 9165.]
1.
YES, Sec. 36(g)
of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification
for candidates for senator; NO, Congress CANNOT enact a law prescribing
qualifications for candidates for senator in addition to those laid down by the
Constitution.
In essence, Pimentel claims 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. The Congress cannot validly
amend or otherwise modify these qualification standards, as it cannot
disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution.
Pimentel’s contention is well-taken. Accordingly, Sec.
36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional.
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.
2. NO, paragraphs (c)
and (d) of Sec. 36, RA 9165 are NOT UNCONSTITUTIONAL; YES, paragraphs (f) thereof
is UNCONSTITUTIONAL.
As to paragraph (c), covering students of secondary
and tertiary schools
Citing the U.S. cases of 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., the Court deduced and applied the following
principles: (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, supra, and Board of Education, supra, 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.
As to paragraph (d), covering officers and
employees of public and private offices
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.
As to paragraph (f), covering persons charged
before the prosecutor’s office with a crime with an imposable penalty of
imprisonment of not less than 6 years and 1 day
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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