Aldaba, Juan Benedicto M.

Advance Legal Writing

11581832 G-11

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Thesis Statement:

The Social Justice Society vs Dangerous Drugs Board ruling on mandatory

drug testing should be abandoned because it violates a persons right against self-

incrimination and right against warrantless search and seizure. The ruling allows

for an across-the-board mandatory drug testing of students, employees and those

criminally charged with a penalty on not less that six years and one day

imprisonment1. This kind of drug testing is a violation of ones right against self

incrimination because the result gathered may be used to incriminate him. Also, it

violates a persons right against warrantless search and seizure because the test

may be conducted without warrant and probable cause. It has been argued that it is

in the interest of the state to promote a drug-free society but the government should

not overstep its authority by neglecting the inalienable right of its people.

Statement of the Problem:

This paper will address the issue of the constitutionality of mandatory drug

testing set forth in R.A. 9165 and the validity of the SJS vs DDB ruling in relation

1 Sec. 36 (c),(d), and (f), Art. III, of R.A. 9165

to settled American Jurisprudence. The problem in this case is the balance between

state and public interest in providing drug-free society while preserving the

persons right against self-incrimination and right against warrantless search and

seizure.

The mandatory drug testing as prescribed by R.A. 9165 is noble in its aim to

provide a drug-free society but coupled with the relentless killings allegedly

perpetrated by the law enforcement agencies themselves against suspected drug

users and pushers, testing positive would be a death sentence for most people. The

problem to be addressed is to finally settle with finality the limitation of

government-authorized mandatory drug testing.

Does the mandatory drug testing violate the right against self-incrimination?

Yes. While it can be argued the Sec. 7, Art. III of the Constitution is limited

to testimonies and documents, the use of such as evidence is similar to the results

of the drug test. If the person tested positive, he may be incriminated using the

findings of the drug test. In the case of Vernonia vs Acton, the Supreme Court held

that urination is an excretory function shielded with great privacy2. It is not a mere

mechanical act.

Does the mandatory drug testing violate the right against warrantless search

and seizure?

2 Vernonia School District 47J vs Wayne Acton, et ux., etc.

 Yes. In the case of Vernonia vs Acton, the court ruled that people do have a

reasonable expectation of privacy surrounding things such as their blood, urine,

and even their breath. These are protected against unreasonable searches and the

government may only obtain such through a warrant, voluntary submission or

reasonable cause. Although the right against unreasonable search and seizure is not

absolute, the guidelines has already been set by earlier jurisprudence such as

individualized-suspicion and reasonableness. These guidelines will not be needed

in an across-the-board mandatory drug testing. Also, this kind of drug testing may

be considered as a blanket search warrant which is not allowed.

Background of the Study:

I own and manage a motel chain in Bulacan. I have enjoyed peaceful

operation before the election of President Rodrigo Duterte. Since his election last

2016, I have experienced a lot of inconvenience and threats from the police. One of

my branch, had buy-bust operation which I was not informed of. This posts a

problem for my business because my employees and customers may be put in

danger in case a fire fight erupts and if word spreads, it is bad publicity for my

business. Just recently, there are a number of dead bodies disposed near our place

of business. Not only did it scare me and my employees but it also scared our

customers. Right now, I am worried that my business would be indicted as a drug

den or we would be subject to extortion by the police. This paper is personal to me

because I have a first-hand account of how bloody and senseless the drug war is.

In the first nine months of Dutertes administration, close to 7,000 suspected

drug users and pushers have died and the number is continuously rising3 . Most of

the people killed are in the poor sector and just recently, minors have fallen victim

into a very questionable operation by the police. Everyday, it is the same story,

suspects dead, police observed self-defense, and fake news aimed to destroy the

administration. Yet given the numbers, it is impossible to turn a blind eye into the

harsh realities of our society. The Commission on Higher Education enacted a

memorandum allowing mandatory drug testing to intermediate and tertiary schools

as prescribed by RA 9165. Those who will test positive may be refused admission

by the school. This, in my opinion is counter productive because it will not only

prosecute a child capable of reformation but also it would make the future of the

child dark as it will be hard for him to finish his studies and find work. Proper

reformation and rehabilitation integrated with education is key in solving the drug

menace affecting the youth. Another controversial move by the police is the TOK-

TEST where police officers would go house-to-house asking people to undergo a

voluntary drug test. This is discriminatory against the poor because it targets

mainly informal settlers.

3 https://www.hrw.org/news/2017/09/07/philippine-president-rodrigo-dutertes-war-drugs
 In the US, a recent case in Florida involving an Aid beneficiary won over the

mandatory drug testing required in claiming for government aid. It challenged the

settled jurisprudence of Earl, Wayne, Skinner, Raab and Miller. In the case, the US

Supreme Court ruled that the Florida governments requirement of mandatory drug

testing violates the recipients right against warrantless search and seizure4.

Mandatory drug testing in the US in not across-the-board. There are only certain

groups of people where drug testing is important in the interest of the state to

eliminate or at least lessen drug use.

Comparing the Philippine and American jurisprudence, we can see a big

difference as to the people required to take a drug test. In the SJS vs DDB ruling,

the Supreme Court ruled in favor of the constitutionality of an across-the-board

mandatory drug testing. In American jurisprudence however, although their courts

approved of mandatory drug testing, it is limited to certain groups of people where

public interest must be balanced with individual privacy. In the cases of Skinner

and Von Raab, the Supreme Court held that there are safety-sensitive jobs that

require mandatory drug testing because it is a matter of public concern and doing

so may result to a prevention of further damage 5. Similar to select drug testing in

the recent cases, American public schools required mandatory drug testing for

4 Lebron vs Secretary Florida Department of Child and Families

5 Skinner vs Railway Labor Executives
student athletes and those who participate in extra-curricular activities6. These

cases shy away from the reasonableness test and individualized-suspicion but their

drug testing is still limited to certain individuals unlike in the Philippines where

everyone will be tested.

Objectives:

The main objective of this paper is to critique the SJS vs DDB ruling which

upheld the constitutionality of the mandatory drug testing as provided for by R.A.

9165 and prove that the said provision is unconstitutional. In order to reach this

objective, some specific objectives may be formulated:

- To be able to provide reasons how mandatory drug testing violates a persons

right against self-incrimination

- To be able to provide reasons how mandatory drug testing violates a persons

right against warrantless search and seizure

- To be able to compare and contrast Philippine and US jurisprudence relating to

mandatory drug testing

Significance of the Study:

This paper is timely and relevant due to the on-going drug war by the

Duterte administration. Thousands have already lost their lives because of this

6 Treasury Employees vs Von Raab

campaign to eliminate the drug menace of the country yet we are nowhere near the

end. While it is true that the police has the right to defend himself, as we all do, it

is not enough to justify the day-to-day killing of suspected drug offenders. The

TOK-HANG and the TOK-TEST, noble as it may seem, only targets the poor and

rarely do we see that the police was able to penetrate and operate on gated

subdivisions. The CHED memorandum authorizing the mandatory drug test for

incoming first year students7 may be ideal but the way they treat those who would

test positive is not commendable. The proper way to deal with a young drug

offender is to provide rehabilitation and reformation without affecting his

education. Employers requiring their workers or employees to take a mandatory

drug testing should follow the reasonableness and individualized-suspicion test and

not an across-the-board mandatory drug test.

It is important to understand the relevance of the mandatory drug testing in

todays society where mere suspicion may lead to prosecution. Drug testing is the

first step used to determine ones innocence without any regard to his circumstance

and well-being. Those killed in police operations, if tested positive, legitimizes

their killing. This close-minded impunity should stop from the beginning and make

the authorities know and respect peoples rights and also for the people to know

their rights and demand its observance from the authorities.

7 CHED Memorandum Order No. 64, s. 2017

Scope and Limitation:

This paper will focus on the mandatory drug testing of student of secondary

and tertiary schools, officers and employees of public and private offices, and all

persons charged with a criminal offense having an imposable penalty of

imprisonment of not less than six years and one day. It will focus on the ruling of

SJS vs DDB and how it is inconsistent with US jurisprudence and the recent Dela

Cruz vs People case.

The paper will no longer discuss the mandatory drug testing for applicants

for a drivers license, applicants for firearms license and for permit to carry

firearms outside of residence, and officers and members of the military, police and

other law enforcement agencies because as provided for by US jurisprudence, the

state may require these group of people to undergo mandatory drug testing because

the nature of their work or the necessity of their permits, it is the state interest to

make sure that other people would not be put in danger.