2016 (Political Law) Bar Exam Questions: Question 12

[Answer/discuss the question below, or see 2016 bar exam Political Law Instructions; 2016 Political Law Questions: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 1113, 14, 15, 16, 17, 18, 19, and 20; See also 2016 Bar Exam: Information, Discussions, Tips, Questions and Results]

-XII-

Paragraphs c, d and f of Section 36 of Republic Act No. 9165 provide:

“Sec. 36. Authorized drug testing. xx x The following shall be subjected to undergo drug testing: xx x

c. Students of secondary and tertiary schools x x x;
d. Officers and employees of public and private offices x x x;
f. All persons charged before the prosecutor’s office with a criminal offense having an imposable imprisonment of not less than 6 years and 1 day;”

Petitioners contend that the assailed portions of Sec. 36 are unconstitutional for violating the right to privacy, the right against unreasonable searches and seizures and the equal protection clause. Decide if the assailed provisions are unconstitutional. (5%)

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  1. BAR EXAMS QUESTION NO. 12

    Paragraphs c, d and f of Section 36 of Republic Act No. 9165 provide:

    “Sec. 36. Authorized drug testing. xx x The following shall be subjected to undergo drug testing: xx x

    c. Students of secondary and tertiary schools x x x;
    d. Officers and employees of public and private offices x x x;
    f. All persons charged before the prosecutor’s office with a criminal offense having an imposable imprisonment of not less than 6 years and 1 day;”

    Petitioners contend that the assailed portions of Sec. 36 are unconstitutional for violating the right to privacy, the right against unreasonable searches and seizures and the equal protection clause. Decide if the assailed provisions are unconstitutional. (5%)

    SUGGESTED ANSWER:

    Laserna Petition (Constitutionality of Sec. 36[c], [d],
    [f], and [g] of RA 9165)

    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 six (6) years and one (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.40 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 persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

    The Court resolves to PARTIALLY GRANT 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. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165.

  2. (c) and (d) are both CONSTITUTIONAL while (f) is UNCONSTITUTIONAL

    The operative concepts in mandatory drug testing are randomness and suspicionless. In the case of the students, they have waived their right to privacy the moment they seek entry to the school. Schools have the prerogative as an educational institution to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. The right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. While in the case of private and public employees, their privacy interest in an office is included within the company’s work policies, the collective bargaining agreement, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Employees privacy expectation in a regulated office environment is reduced and a degree of limit upon such privacy has been upheld.

    The situation is entirely different for a person charged before the public prosecutors office with a criminal offense punishable with six (6) years and one (1) day imprisonment. A mandatory drug testing can never be random or suspicionless at this point. The person charged with criminal offense is not randomly picked; neither is the person beyond suspicion but rather, the person is singled out and being impleaded against his will. In this case, the person submitting himself to drug testing, do not necessarily consent to the procedure, let alone waive his right to privacy.

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