MEMORANDUM OF LAW TITLE: In re Amendment of Republic Act No.

9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 to authorize mandatory drug testing for candidates of any elective public office
ATTY. MYRNA FELICIANO 10 OCTOBER 2011

REQUESTED BY: DATE SUBMITTED:

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QUESTION Is the insertion of a provision that ALL PERSON WHO FILES (sic) A CERTIFICATE OF CANDIDACY FOR ANY ELECTIVE PUBLIC OFFICE SHOULD AUTOMATICALLY UNDERGO A MANDATORY DRUG TEST TO ENSURE THAT THEY ARE FREE FROM THE USE OF DANGEROUS DRUGS in Republic Act No. 9165, otherwise known as The Dangerous Drugs Act of 2002, feasible considering that it aims to automatically disqualify the prospective candidate to run for office should his test come back as positive? BRIEF ANSWER Such a provision would be unconstitutional. To require candidates for any elective public office to undergo drug testing would be tantamount to an amendment of the Constitution itself, which already prescribes qualifications for national elective officials. Furthermore, the Honorable Supreme Court has struck down as unconstitutional a similar provision in RA 9165 in a previously decided case.1 Even if it is not rendered unconstitutional by the doctrine laid down in the said case, it would still be constitutionally infirm as it would as it would clash with the constitutionally-guarded right to privacy. STATEMENT OF FACTS Congressman Makulit, an Anti-Drugs crusader, is aware that one of his colleagues was arrested in Hongkong (sic) for carrying 10 milligrams of cocaine. He plans to amend the present law, Republic Act No. 9165, otherwise known as The Dangerous Drugs Act of 2002, to insert a provision that ALL PERSON WHO FILES (sic) A CERTIFICATE OF
Social Justice Society v. Philippine Drug Enforcement Agency, G.R. Nos. 157870, 158633, 161658, November 3, 2008.
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CANDIDACY FOR ANY ELECTIVE PUBLIC OFFICE SHOULD AUTOMATICALLY UNDERGO A MANDATORY DRUG TEST TO ENSURE THAT THEY ARE FREE FROM THE USE OF DANGEROUS DRUGS. If the test is positive, he will be automatically disqualified to run for office. The honorable congressman now wishes to know if such an insertion is feasible. DISCUSSION The 1987 Constitution, on the subject of national elective officials, provides for the qualifications prospective candidates should possess. One provision in Article VI of the Constitution, which provides for the qualifications of a senatorial candidate, states:
SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.2

Another provision in Article VI of the Constitution provides for the qualifications of a candidate for the House of Representatives:
SECTION 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.3

Finally, two provisions in Article VII of the Constitution provides for the qualifications of the president and the vice-president:
SECTION 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.4 SECTION 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President.5

The qualifications prescribed in the Constitution are the only ones prospective candidates have to meet in order to be allowed to run. As such, candidates for national elective offices need not possess any other qualification other than the ones provided for in the Constitution. On the other hand, the qualifications for local elective officials and
CONST. art. VI, sec. 3. CONST. art. VI, sec. 6. 4 CONST. art. VII, sec. 2. 5 CONST. art. VII, sec. 3.
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employees are provided for by the Congress, through the Local Government Code, the Revised Administrative Code, the Omnibus Election Code and other laws. The proposed provision would be unconstitutional for imposing a new mandatory requirement aside from those already prescribed in the Constitution. Mandatory drug testing for candidates of any elective public office is unconstitutional. The proposed provision reads as follows:
All person (sic) who files a certificate of candidacy for any elective public office should automatically undergo a mandatory drug test to ensure that they are free from the use of dangerous drugs. (Emphasis supplied)

Given that the proposed provision seeks to make it mandatory for candidates of any elective public office to undergo mandatory drug testing, the proposed provision is, in effect, adding another layer to the minimum qualifications already prescribed by the Constitution for officials such as the President, Vice-President, Senators and members of the House of Representatives. Congress power, while broad, is not infinite. The Congress has to keep in mind certain rules and limitations when crafting legislation. Given that Congress derives its powers from the Constitution, which vested the former with said powers, it cannot enact laws that would go against what is expressly mandated in the Constitution. It is a well-settled principle in Philippine jurisprudence that an act of Congress cannot defeat what has been clearly defined in the Constitution. Equally well-settled is the principle that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect.6 From these two maxims, it is clear that any law which attempts to add another requirement to what has already been provided for in the Constitution shall be deemed repugnant to the basic law and shall thus be null and void. In view of the foregoing, the Constitution clearly limits Congress power to impose new requirements with regard to the qualifications of prospective candidates for any elective public office. This conclusion is bolstered by the Honorable Supreme Courts decision in the leading case of Social Justice Society v. Philippine Drug Enforcement Agency 7 (Social Justice Society). The petitioners in this case were assailing the constitutionality of specific provisions in Republic Act No. 9165, otherwise known as The Comprehensive Dangerous Drugs Act 2002. One of the petitioners, then Senator Aquilino Q. Pimentel Jr., was questioning the validity of one of the provisions of the said act making it mandatory for a senatorial candidate to undergo drug testing. The questioned provision reads as follows: SECTION 36. Authorized Drug Testing. Authorized drug testing shall be done by any government forensic laboratories or by any of the drug
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Social Justice Society, supra. Id.

testing laboratories accredited and monitored by the DOH to safeguard the quality of test results. The DOH shall take steps in setting the price of the drug test with DOH accredited drug testing centers to further reduce the cost of such drug test. 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 the drug used and the confirmatory test which will confirm a positive screening test. Drug test certificates issued by accredited drug testing centers shall be valid for a one-year period from the date of issue which may be used for other purposes. The following shall be subjected to undergo drug testing: xxxx (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.8 (Emphasis supplied) In the Courts summary of the arguments, one of the petitioners, then Senator Pimentel Jr., stated 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. (Emphasis supplied)

After identifying the minimum qualifications for a senatorial candidate as provided for in the Constitution, the Court concluded its summary of Senator Pimentels argument, by stating that [t]he Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate.9 Employing the previously stated principles, the Court found for Senator Pimentel on said arguments. In striking down the questioned provision because of its unconstitutionality, it struck down COMELEC Resolution No. 6846 as well, further emphasizing the invalidity of any statute that attempts to impose a new requirement for candidates of elective public offices:
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
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Rep. Act. No. 9165 (2002), Art. III, sec. 36(g). Social Justice Society, supra; citing Palmer v. Board of Education, 276 NY 222 11 NE 2d 887.

senator to meet such additional qualification, the COMELEC, to be sure, is also without such power.10

However, the Court, in ruling on the unconstitutionality of the mandatory drug test requirement, deemed it necessary to qualify their decision:
It ought to be made abundantly clear, however, that 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.11 (Emphasis supplied)

While the above statement maybe be construed as the Courts way of limiting the rationale behind the nullification of the provision to the imposition of a new mandatory requirement for senatorial candidates, it need not take a leap of logic to have it extended to other national elective public officials, for the Constitution expressly provides for the qualifications of the President, Vice-President and members of the House of Representatives. Additionally, the fact that the framers enumerated the qualifications for national elective officials without illustrative words can be seen as a manifestation of their intention to limit the qualifications to what has already been provided. Expressio unius est exclusio alterius. The express mention of one thing excludes all others. It is a wellsettled rule of statutory construction that the express mention of one person, thing, or consequences implies the exclusion of all others.12 Therefore, what the Constitution does not provide for, it was meant to prohibit. Following this textual canon of statutory construction, it can be reasonably concluded that the framers never intended for the Congress to add qualifications other than those that have already been provided. The proposed provision would be unconstitutional for violating the right to privacy and the right against unreasonable search and seizure. Assuming arguendo that the proposed provision would not be nullified by the clearlyworded constitutional provisions with regard to the qualifications of elective officials and the doctrine laid down in Social Justice Society, it must still fall on the basis of it infringing on the constitutionally-guarded right to privacy enshrined in Article III of the Constitution. Sec. 2, Article III of the Constitution provides for this:
SECTION 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
Social Justice Society, supra. Id. 12 R. AGPALO, STATUTORY CONSTRUCTION, 318-319 (6th edition, 2009).
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describing the place to be searched and the persons or things to be seized.13 (Emphasis supplied)

The right to privacy is not expressly provided for in the Bill of Rights. However, it is a right that has long been recognized and given great importance in this jurisdiction. Retired Chief Justice Reynato Puno, in a speech delivered before the forum on The Writ of Habeas Data and Human Rights, discussed the long-standing recognition accorded to the right to privacy:
The right to privacy is a right inherent in human beings. From the dawn of time when man lived in what Thomas Hobbes called, the State of Nature where the individual was lawmaker, law enforcer and law interpreter of the laws of naturethe right to be let alone existed not as a claim but as part of the natural order. John Locke argued that this natural condition of mankind is what would exist if there were no government, no laws, and no common power to restrain human nature.14 (Emphasis supplied)

Unfortunately, as was stated in the case of Social Justice Society15, while the right to privacy has long come into its own, this case (Social Justice Society) appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. The cited case was the first to tackle the issue of mandatory drug testing vis--vis the right to privacy. Fortunately, one can turn to American jurisprudence for guidance with regard to the issue of mandatory drug testing. With respect to decisions involving mandatory drug testing vis--vis the equivalent of Sec. 2, Article III of our Constitutionthe Fourth Amendment in the US Constitution16the cases of National Treasury Employees Union v. Raab (Von Raab)17 and Chandler v. Miller18 (Chandler) are in point. In the case of Von Raab19, the US Supreme Court upheld the constitutionality of a program initiated by the United States Customs Service, which made it mandatory for applicants wanting to transfer to positions which primarily involve the interdiction of illegal drugs. Urinalysis, according to the Court, was a search, therefore bringing it within the purview of the Fourth Amendment20. However, it ruled that it did not violate the said Amendment. According to the Court, the Constitution allows a Fourth
CONST. art. III, sec. 2. Reynato Puno. The Common Right to Privacy Available http://sc.judiciary.gov.ph/speech/03-12-08speech.pdf. March 12, 2008. 15 Social Justice Society, supra. 16 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. 17 National Treasury Employees Union v. von Raab, 489 U.S. 656 (1989) 18 Chandler v. Miller, 520 U.S. 305 (1997) 19 Von Raab, supra. 20 John Bourdeau Supreme Courts Views on Mandatory Drug Testing for Drugs or Alcohol, 145 A.L.R. Fed. 335
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Amendment intrusion when it serves a special governmental need beyond the need for law enforcementthereby allowing searches without warrants21. John Bourdeau succinctly summarized how the Court arrived at its ruling:
The Court therefore first determined that the drug-testing program did not serve the ordinary needs of law enforcement because the test results could not be used in a criminal prosecution of the employee without the employee's consent. Second, the Court determined that a warrant was not required because the Customs Service's responsibilities would be compromised if search warrants were required in connection with routine, yet sensitive, employment decisions, and in fact, search warrants would provide little or no additional protection of personal privacy because all employees seeking promotion to a covered position are subject to the test, the official in the field has no discretion. Third, the Court determined that individualized suspicion was not necessary because the national interest in self-protection could be irreparably damaged if those charged with safeguarding it were, because of their own drug use, unsympathetic to their mission of interdicting narcotics; furthermore, the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force. Fourth, the Court believed that Customs officers promoted to positions involving drug interdiction or the carrying of a firearm had a lower expectation of privacy because successful performance of their duties depended uniquely on their judgment and dexterity; they therefore, should not expect to keep from the Customs Service personal information that bears directly on their fitness. Moreover, the Court said, in the instant case there is no direct observation of the act of urination, the urine samples may only be examined for certain specified illegal drugs, and employees need not disclose personal medical information to the government unless the test results are positive.22 (Emphasis supplied)

Interestingly, the Court, while upholding the constitutionality of the drug-test program, said it was unclear as to whether or not it violated the Fourth Amendment. The Court said that, while those employed by Customs would have a diminished expectation of privacy, and that the government has proven that it has a compelling state interest in protecting truly sensitive information, it was not shown that the positions covered by the testing program would have access to sensitive information23. Deciding that it was overbroad, the Court remanded it to the Court of Appeals to clarify the scope the program24. In the leading case of Chandler25 the Court declared as unconstitutional a Georgia statute requiring such as it violated the Fourth Amendments prohibition against suspicionless (sic) searches. Arriving at the same conclusion as the one in Von Raab, at least with respect to how the Constitution views mandatory drug testing, the Court
Bourdeau, supra. Id. 23 Id. 24 Id. 25 Chandler, supra.
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considered it a search. However, while the Court said that the test itself was relatively noninvasive, as the State allowed candidates for public offices to provide their urine samples in the offices of their private physicians, the government nonetheless failed to show a compelling state interest grave enough to warrant the overriding of the candidates constitutionally-guaranteed right to privacy. Justice Ginsburg, who delivered the opinion of the Court, said that [n]othing in the record hints that the hazards respondents broadly describe are real and not simply hypothetical for Georgia's polity. Furthermore, while the Court recognized the well-meaning intention of the statute, the candidate drug test Georgia has devised diminishes personal privacy for a symbol's sake. The Fourth Amendment shields society against that state action, emphasizing the gravitas accorded to the right to privacy. Distinguishing Chandler from Von Raab, the Court said that Von Raab should hardly be considered as an indiscriminate authorization of suspicionless (sic) searches26. The Court emphasized that Von Raab should be considered in light of its unique context, given the close proximity Customs officials have with drugs, bribery and contraband 27. Furthermore, unlike Customs officials, whose work highlights the unfeasibility of subjecting employees [required to carry firearms or concerned with interdiction of controlled substances] and their work product to the kind of day-to-day scrutiny that is the norm in more traditional office environments, those running for public office, in contrast, are subject to relentless scrutinyby their peers, the public, and the press. Their day-to-day conduct attracts attention notably beyond the norm in ordinary work environments.28 Analyzing these two cases, it can be reasonably concluded that, in order to implement mandatory drug testing which would not be repugnant to Sec. 2, Article III of the Constitution, there must be a (1) showing of a special need grave enough to warrant the abridgment of the right to privacy and (2) that the evidence shown in support of such interest is real and palpable, not hypothetical and speculative. Applying this standard to the proposed provision, again granting arguendo that it will not fall in the face of the doctrine laid down in Social Justice Society, it will still fail because (1) there was no showing of a special need that would warrant the States intrusion to a candidates right to privacy and (2) even if there was a compelling state interest, there was no evidence to support it. Following the US Supreme Courts rationale in Chandler, the fact that Congressman Makulit taking cognizance of the fact that one of his colleagues was arrested for carrying prohibited drugs is not a sufficient impetus in giving the State the authority to excessively intrude into ones right to privacy. Given the lack of a grave enough special need, it logically follows that no evidence can be presented. Even if there was a showing of special need, again following the doctrine laid down in Chandler, the lack of evidence to show that there is a prevalent drug problem within the government will be fatal to the provision. ALTERNATIVE ANSWER
Suspicionless Drug Testing, 111 Harv. L. Rev. 289. Id. 28 Chandler, supra.
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Given that the proposed provision is unconstitutional because it adds a new mandatory requirement to the qualifications already prescribed by the Constitution, one way of curing this constitutional infirmity is to amend the pertinent provisions through a constituent assembly. Article XVII of the Constitution states the ways by which the Constitution may be amended or revised:
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. 29

While it is not expressly provided for in the abovementioned provision, the Constitution has granted Congress the power to convene as a Constituent Assembly, which empowers them to propose amendments to or revise the Constitution.30 Submitting the proposed provision to the people for ratification and having it ratified by the people would cure the constitutional infirmities of the proposed provision vis--vis the qualifications already present. Furthermore, it would no longer conflict with the constitutionallygranted rights per Article III. Assuming that the abovementioned recourse is not available, the proposed provision can be limited to local elective officials and given that the qualifications prescribed for local elective officials are enshrined in acts of Congress (i.e. the Local Government Code, the Revised Administrative Code, and the Omnibus Election Code), Congress may amend these laws to enable mandatory drug testing as a new mandatory requirement. However, such an action would result in yet another constitutional infirmity, as the proposed provision would now be violating Sec. 1, Article III of the Constitution 31. Applying mandatory drug testing to local elective offices but not to national elective offices, which are concededly more sensitive posts, would clash with the right to equal protection. Furthermore, such a result would be absurd as there is no justifiable reason to distinguish between national and local elective officials. CONCLUSION It would not be feasible to insert the proposed provision. Following the ruling of the Honorable Supreme Court in the case of Social Justice Society, a provision requiring a candidate for any public office to undergo a mandatory drug test and be disqualified should the test come back positive would be construed as an imposition of a new mandatory requirement to the qualifications already found in the Constitution for national elective offices. Assuming arguendo that it is not rendered unconstitutional by virtue of its imposition of a new mandatory requirement, it will still violate the constitutionally-guaranteed
CONST. art. XVII, sec. 1. J. BERNAS, A LIVING CONSTITUTION: THE ABBREVIATED ESTRADA PRESIDENCY 214 (2003) 31 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.
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right to privacy and the right against unreasonable search and seizure. Following the test laid down by relevant American jurisprudence, it will violate the aforementioned rights because it fails to (1) show a grave enough compelling state interest that would justify an excessive intrusion into the right to privacy and (2) assuming that there is, in fact, a compelling state interest, there is no sufficient evidence to justify such intrusion. Respectfully submitted, Roberto Miguel O. Raeses