Reasonable and unreasonable

These cases of transcendental importance and paramount interest involve the constitutionality of Section 36 (c), (d), (f) and (g) of R.A. 9165, otherwise known as, the “Comprehensive Dangerous Drugs Act of 2002”. They have been assailed as infringing on the right to privacy, the right against unreasonable searches and seizures, the right against self incrimination and for being contrary to the due process and equal protection guarantees. Additionally Section (g) and the Comelec resolution implementing it, are also challenged on the ground that it imposes an additional qualification on candidates for public office other than those provided by the Constitution. In its decision, the SC upheld the constitutionality of Sections (c) and (d) but not sections (f) and (g).

Section (c) provides for the random drug testing of students in the secondary and tertiary schools pursuant to the related rules and regulations as contained in the school’s student handbook and with notice to parents.

Section (d) requires officers and employees of public and private offices, whether domestic or overseas, to undergo drug test as contained in the company’s work rules and regulations for purposes of reducing the risk in the workplace.

Section (f) requires 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 to undergo a mandatory drug test.

Section (g) prescribes that all candidates for public office whether appointed or elected both in the national or local government to undergo a mandatory drug test.

According to the SC, Section 36 (g), as sought to be implemented by the assailed Comelec resolution, effectively enlarges the qualification requirements enumerated in Section 3 Article VI of the Constitution by unmistakably requiring a candidate for Senator to be certified illegal drug-free as a condition sine qua non to be voted upon, and if proper, to be proclaimed Senator-elect. They 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 by the challenged provision is to be hurdled before or after election is of no moment as getting elected would be of little value if one cannot assume office for non-compliance with the drug testing requirement.

There is also no valid justification for mandatory drug testing for person accused of crimes punishable by imprisonment of more than 6 years. The operative concepts in mandatory drug testing that makes it constitutionally viable are “randomness” and “suspicion-less”. Persons charged with a crime before the prosecutor’s office are not randomly picked; neither are they beyond suspicion. When they are charged they are singled out and impleaded against their will. Hence, the drug testing on them can never be at “random” or “suspicion-less”. To impose mandatory drug testing on them is a blatant attempt to harness a medical test as a tool for criminal prosecution contrary to the objectives of RA 9165. It would violate a person’s right to privacy guaranteed by Section 2 Article III of the Constitution. Worse still the persons charged are veritably forced to incriminate themselves.

With respect to students in the secondary and tertiary levels, the drug test, while mandatory is a random and suspicion-less arrangement. Deterring drug use by our nation’s schoolchildren is as important as enhancing the efficient enforcement of the nation’s laws against illegal drugs; the necessity of 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. Moreover, the schools and teachers act in place of parents with a similar interest and duty in safeguarding the health and well being of the students. So it could implement its random drug testing policy which even a reasonable parent might need to do. They have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory on minor students who have contextually fewer rights than adults.

The random drug testing on private and public employees is likewise constitutional. It does not constitute an unreasonable search and an unwarranted intrusion on the right to privacy. The private employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the CBA if any, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated workplace is, in fine, reduced. The character of intrusion authorized by the challenged law is also narrowly drawn and accompanied by proper safeguards particularly against embarrassing leakages of the results. Government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service Law and other laws on public officers enacted to promote a high standard of ethics in public service. If R.A. 9165 passes the norm of reasonableness for private employees, it should all the more pass this norm with respect to 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 (SJS vs. DDB, PDEA, G.R. 157870; Laserna vs. DDB and PDEA, G.R. 158633; Pimentel Jr. vs. Comelec, G.R. 161658, November 3, 2008).  

In other words, drug testing of citizens is unconstitutional if it is mandatorily imposed.

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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