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

REQUESTED BY:

ATTY. MYRNA FELICIANO

DATE SUBMITTED:

10 OCTOBER 2011

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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

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 CANDIDACY FOR
ANY ELECTIVE PUBLIC OFFICE SHOULD AUTOMATICALLY UNDERGO A
MANDATORY DRUG TEST TO ENSURE THAT THEY ARE FREE FROM THE USE OF
1 Social Justice Society v. Philippine Drug Enforcement Agency, G.R. Nos. 157870, 158633, 161658,
November 3, 2008.

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. Sec. 3, 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.

Sec. 6, 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 twentyfive 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.

Finally, Sec. 2 and Sec. 3, Article VI 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.
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.

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 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. 2 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 3 (Social Justice Society).
In the Courts summary of the arguments, one of the petitioners, then Senator Aquilino Q.
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.
The Congress cannot validly amend or otherwise modify these qualification standards, as
it cannot disregard, evade, or weaken the force of a constitutional mandate,[7] or alter or
enlarge the Constitution.

Employing the previously stated principles, the Court accepted the argument with a qualifying
statement:

2 See note 1, supra.

3 Id.

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.4 (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 exclusion alterius. The
express mention of one thing excludes all others. What the Constitution does not provide for, it
prohibits. Therefore, following this textual canon of statutory construction, 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 will not be nullified by the clearly-worded
constitutional provisions with regard to the qualifications for elective officials and the doctrine
laid down in Social Justice Society5, it must still fall on the basis of it infringing on the
constitutionally-guarded rights of citizens enshrined in Article III of the Constitution.
Sec. 2, Article III of the Constitution provides for these rights:
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
describing the place to be searched and the persons or things to be seized. (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 of 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
4 Id.
5 See note 4, supra

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.6 (Emphasis
supplied)

Unfortunately, as was stated in the case of Social Justice Society7, 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
Constitution8the cases of National Treasury Employees Union v. Raab (Von Raab)9 and
Chandler v. Miller10 (Chandler) are in point.
In the case of Von Raab11, the US Supreme Court upheld the constitutionality of a program
initiated by the United States Custom 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
Amendment12. However, it ruled that it did not violate the said Amendment. According to the
Court, the Constitution allows a Fourth Amendment intrusion when it serves a special
6 Reynato Puno. The Common Right to Privacy Available http://sc.judiciary.gov.ph/speech/03-12-08-speech.pdf.
March 12, 2008.

7 See note 5, supra

8 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.
9 National Treasury Employees Union v. Raab, 489 U.S. 656 (1989)
10 Chandler v. Miller, 520 U.S. 305 (1997)
11 See note 9, supra.
12 John Bourdeau Supreme Courts Views on Mandatory Drug Testing for Drugs or Alcohol, 145
A.L.R. Fed. 335

governmental need beyond the need for law enforcementthereby allowing searches without
warrants13. 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. 14 (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 information15. Deciding that it was overbroad, the Court remanded it to the
Court of Appeals to clarify the scope the program16.

13 Id.
14 See note 12, supra.
15 Id.
16 See note 10, supra.

In the leading case of Chandler17 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 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.
Distinguished from Von Raab, wherein the Court upheld the constitutionality of suspicionless
(sic) drug testing, the Court said that it should hardly be considered as indiscriminately allowing
suspicionless (sic) searches18. The Court argued that Von Raab should be considered in light of its
unique context, given the close proximity Customs officials have with drugs, bribery and
contraband19. 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.20
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
17 Id.
18 Suspicionless Drug Testing, 111 Harv. L. Rev. 289
19 See note 9, supra.
20 See note 16, supra.

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, there is no evidence suggesting that there is a prevalent drug
addiction problem within the government.

ALTERNATIVE ANSWER
Given that the proposed provision is unconstitutional because it adds a ne 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. Sec.
1, 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.

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. 21 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 constitutionally-granted 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

21 J. BERNAS, A LIVING CONSTITUTION: THE ABBREVIATED ESTRADA PRESIDENCY 214

(2003)