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D E C I S I O N
x x x x
x x x x
(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.
x x x x
(g) All candidates for public office x x x both in the national or local
government shall undergo a mandatory drug test.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with their
respective offices, the Comelec Offices and employees concerned shall
submit to the Law Department two (2) separate lists of candidates. The
first list shall consist of those candidates who complied with the
mandatory drug test while the second list shall consist of those
candidates who failed to comply x x x.
SEC. 5. Effect of failure to undergo mandatory drug test and file drug
test certificate.—No person elected to any public office shall enter
upon the duties of his office until he has undergone mandatory drug test
and filed with the offices enumerated under Section 2 hereof the drug
test certificate herein required. (Emphasis supplied.)
In its Petition for Prohibition under Rule 65, petitioner Social Justice
Society (SJS), a registered political party, seeks to prohibit the
Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency
(PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA
9165 on the ground that they are constitutionally infirm. For one, the
provisions constitute undue delegation of legislative power when they
give unbridled discretion to schools and employers to determine the
manner of drug testing. For another, the provisions trench in the equal
protection clause inasmuch as they can be used to harass a student or an
employee deemed undesirable. And for a third, a person's constitutional
right against unreasonable searches is also breached by said provisions.
First off, we shall address the justiciability of the cases at bench and
the matter of the standing of petitioners SJS and Laserna to sue. As
respondents DDB and PDEA assert, SJS and Laserna failed to allege any
incident amounting to a violation of the constitutional rights mentioned
in their separate petitions.[2]
(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? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the right to
privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of
legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
Congress' inherent legislative powers, broad as they may be, are subject
to certain limitations. As early as 1927, in Government v. Springer,
the Court has defined, in the abstract, the limits on legislative power
in the following wise:
Someone has said that the powers of the legislative department of the
Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments acting under
delegated authority, the powers of each of the departments x x x are
limited and confined within the four walls of the constitution or the
charter, and each department can only exercise such powers as are
necessarily implied from the given powers. The Constitution is the
shore of legislative authority against which the waves of legislative
enactment may dash, but over which it cannot leap.[10]
In the same vein, the COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations to
implement Sec. 36(g), validly impose qualifications on candidates for
senator in addition to what the Constitution prescribes. If Congress
cannot require a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should not be
defeated by unwarranted impositions of requirement not otherwise
specified in the Constitution.[13]
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for
secondary and tertiary level students and public and private employees,
while mandatory, is a random and suspicionless arrangement. The
objective is to stamp out illegal drug and safeguard in the process "the
well being of [the] citizenry, particularly the youth, from the harmful
effects of dangerous drugs." This statutory purpose, per the policy-
declaration portion of the law, can be achieved via the pursuit by the
state of "an intensive and unrelenting campaign against the trafficking
and use of dangerous drugs x x x through an integrated system of
planning, implementation and enforcement of anti-drug abuse policies,
programs and projects."[14] The primary legislative intent is not
criminal prosecution, as those found positive for illegal drug use as a
result of this random testing are not necessarily treated as criminals.
They may even be exempt from criminal liability should the illegal drug
user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are
clear on this point:
x x x x
Sec. 55. Exemption from the Criminal Liability Under the Voluntary
Submission Program.—A drug dependent under the voluntary submission
program, who is finally discharged from confinement, shall be exempt
from the criminal liability under Section 15 of this Act subject to the
following conditions:
x x x x
School children, the US Supreme Court noted, are most vulnerable to the
physical, psychological, and addictive effects of drugs. Maturing
nervous systems of the young are more critically impaired by intoxicants
and are more inclined to drug dependency. Their recovery is also at a
depressingly low rate.[15]
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 Vernoniaand 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 enroll is not
absolute; it is subject to fair, reasonable, and equitable requirements.
The US Supreme Court and US Circuit Courts of Appeals have made various
rulings on the constitutionality of mandatory drug tests in the school
and the workplaces. The US courts have been consistent in their rulings
that the mandatory drug tests violate a citizen's constitutional right
to privacy and right against unreasonable search and seizure. They are
quoted extensively hereinbelow.[25]
The essence of privacy is the right to be left alone. [26] In context, the
right to privacy means the right to be free from unwarranted
exploitation of one's person or from intrusion into one's private
activities in such a way as to cause humiliation to a person's ordinary
sensibilities.[27] And while there has been general agreement as to the
basic function of the guarantee against unwarranted search, "translation
of the abstract prohibition against `unreasonable searches and seizures'
into workable broad guidelines for the decision of particular cases is a
difficult task," to borrow from C. Camara v. Municipal Court.[28]
Authorities are agreed though that the right to privacy yields to
certain paramount rights of the public and defers to the state's
exercise of police power.[29]
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.
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.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658
and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486
as UNCONSTITUTIONAL; and to PARTIALLY GRANTthe 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. All
concerned agencies are, accordingly, permanently enjoined from
implementing Sec. 36(f) and (g)of RA 9165. No costs.
SO ORDERED.
[1]
Re-elected as senator in the 2004 elections.
[2]
Rollo(G.R. No. 158633), pp. 184-185.
[3]
Dumlao v. COMELEC, No. L-52245, January 22, 1980, 95 SCRA 392, 401.
[4]
Bernas, The 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 939 (2003).
[5]
Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733,
740.
[6]
Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 &
127867, November 5, 1997, 281 SCRA 330, 349; De Guia v. COMELEC, G.R.
No. 104712, May 6, 1992, 208 SCRA 420, 422.
[7]
Palmer v. Board of Education, 276 NY 222 11 NE 2d 887.
[8]
Cruz, CONSTITUTIONAL LAW 4 (2000).
[9]
Mutuc v. Commission on Elections, No. L-32717, November 26, 1970, 36
SCRA 228, 234.
[10]
50 Phil. 259, 309 (1927).
[11]
J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY 604 (1996).
[12]
Id.
[13]
Seeconcurring opinion in Go v. Commision on Elections, G.R. No.
147741, May 10, 2001, 357 SCRA 739, 753.
[14]
RA 9165, Sec. 2.
[15]
Vernonia School District 47J v.Acton, 515 U.S. 646 (1995), 661.
[16]
Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169;
citing Morfe v. Mutuc, No. L-20387, January 31, 1968, 22 SCRA 424, 444-
445.
[17]
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the person or
things to be seized.
[18]
536 U.S. 822 (2002); cited in 2 Bernas, CONSTITUTIONAL RIGHTS AND
SOCIAL DEMANDS 224-227 (2004).
[19]
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
[20]
The Fourth Amendment is almost similar to Sec. 2, Art. III of the
Constitution, except that the latter limited the determination of
probable cause to a judge after an examination under oath of the
complainant and his witnesses. Hence, pronouncements of the US Federal
Supreme Court and State Appellate Court may be considered doctrinal in
this jurisdiction, unless they are manifestly contrary to our
Constitution. See Herrera, HANDBOOK ON ARREST, SEARCH AND SEIZURE 8
(2003).
[21]
Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-
96.
[22]
Rollo(G.R. No. 158633), p. 204, respondents' Consolidated Memorandum.
[23]
Rollo(G.R. No. 157870), p. 10.
[24]
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied the
equal protection of the laws.
NOTE: This is consolidated with Laserna vs Dangerous Drugs Board (G.R. No.
158633) and Pimentel vs COMELEC (G.R. No. 161658)
In 2002, Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of
2002 was implemented. Section 36 thereof requires mandatory drug testing of
candidates for public office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged before the
prosecutor’s office with certain offenses.
In December 2003, COMELEC issued Resolution No. 6486, prescribing the rules
and regulations on the mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national and local elections. Aquilino
Pimentel, Jr., a senator and a candidate for re-election in the May elections, filed a
Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for
being unconstitutional in that they impose a qualification for candidates for senators
in addition to those already provided for in the 1987 Constitution; and (2) to enjoin
the COMELEC from implementing Resolution No. 6486.
According to Pimentel, the Constitution only prescribes a maximum of five (5)
qualifications for one to be a candidate for, elected to, and be a member of the
Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165
and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo
a mandatory drug test, create an additional qualification that all candidates for
senator must first be certified as drug free. He adds that there is no provision in the
Constitution authorizing the Congress or COMELEC to expand the qualification
requirements of candidates for senator.
ISSUE: Whether or not Sec 36 of RA 9165 and Resolution 6486 are constitutional.
HELD: No. Pimentel’s contention is valid. Accordingly, Sec. 36 of RA 9165 is
unconstitutional. It is basic that if a law or an administrative rule violates any norm of
the Constitution, that issuance is null and void and has no effect. The Constitution is
the basic law to which all laws must conform; no act shall be valid if it conflicts with
the Constitution. In the discharge of their defined functions, the three departments of
government have no choice but to yield obedience to the commands of the
Constitution. Whatever limits it imposes must be observed.
The provision “[n]o person elected to any public office shall enter upon the duties of
his office until he has undergone mandatory drug test” is not tenable as it enlarges
the qualifications. COMELEC cannot, in the guise of enforcing and administering
election laws or promulgating rules and regulations to implement Sec. 36, validly
impose qualifications on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to meet such
additional qualification, the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should not be defeated by
unwarranted impositions of requirement not otherwise specified in the Constitution.