Drug Testing for Candidates

Last year the Supreme Court declared unconstitutional portions of the Compulsory Drug Testing Law and upheld others. Now there seems to be an ongoing discussion of the precise scope of what the Supreme Court said. Specifically did the Supreme Court say that drug testing for local candidates was also unconstitutional?

To me, what was clearest in that decision was that requiring candidates for national office to undergo drug testing as a basis for allowing their candidacy would violate the Constitution. The Constitution enumerates the qualifications for President, Vice-President, Senator and Representatives. The understanding has always been that the enumerated qualifications are exclusive.

It is a different matter, however, when it comes to local elective officials. The Constitution prescribes certain qualifications for them but also leaves to Congress the power to prescribe additional qualifications. Congress does this through the Local Government Code. Moreover, another Supreme Court decision of last year seems to suggest that any change in the structure of local governments must be done through the Local Government Code and not through any other law.

Although the provision on drug testing of local government candidates is found in a law which makes no reference to the Local Government Code, it may be legitimate to see it as an attempt to amend what the Local Government Code has to say about qualifications. But since any act of Congress can be subjected to a constitutional test, it is legitimate ask whether drug testing for local candidates is constitutional. And, more importantly, did the Supreme Court decision of last year already declare it to be unconstitutional?

The Court had specific arguments about drug testing for candidates for national office, for students, for employees in private and public offices and for persons charged with a criminal office; but it said nothing about drug testing for local candidates. The Comelec, however, has concluded that drug testing for local candidates is unconstitutional. Could it be that unconstitutionality can be deduced from the arguments regarding the other subjects of drug testing?

We can begin with what the Court said about drug tests for candidates for national office. The Court said that this was unconstitutional because drug testing was in effect being imposed as an additional qualification over and above the exclusive list prescribed by the Constitution. The Court said, “It ought to be made abundantly clear 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.” This argument, however, cannot be used to show the unconstitutionality of drug test for local candidates because the Constitution does not impose a similar exclusive list of qualifications for local elective officials.

As to those charged with a criminal offense, the Court reprobated the mandatory character of the requirement. “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.” This argument, likewise, cannot be used against drug tests for local candidates since they are not persons charged with a crime.

As to students, the Court justified random drug testing by borrowing from two American Supreme Court decisions. “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.” Local candidates, however, are not persons under in loco parentis authority.

The Court also found random testing of employees as justifiable. The Court rejected the argument that it was violative of privacy right. “The essence of privacy is the right to be left alone. 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. . . . 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.”

Mandatory drug tests for local candidates, however, cannot be justified through the arguments used for students and employees. For one they are not students under in loco parentis authority. For another, unlike employees, they are not yet in a position to do harm through misuse of office because they still have to be screened by voters before they can hold office. Besides, the intended test was not meant to be randomized but obligatory for all. Drug tests for them therefore would not pass the test of reasonableness which the Court used for students and employees.

Having said all that, however, I would have wished that the Court had specifically discussed drug tests for local candidates.

28 September 2009