INTRODUCTION The proposed legislation on mandatory drug testing on all prisoners, probationers, and individuals who are under the influence of illegal drugs can be subject to attack on its constitutionality on grounds of its possible violation of a person’s right to privacy. As the Supreme Court held in the case of Social Justice Society versus Dangerous Drugs Board and Philippine Drug Enforcement Agency (PDEA), mandatory drug testing, to be constitutional, must adhere to the principles of “randomness” and “suspicionless”.
A discussion of its constitutionality, as well as their respective moral/ ogical Justification, will be made one by one. DISCUSSION l. PROBATIONERS AND PAROLEES Probationers and parolees are inmates who were qualified for released after compliance with their respective conditions. They are outside of prison walls and therefore back to the community where they belong and therefore once again open to temptations from former peers.
However, their release is subject to a suspensive condition; to become a valuable member of the community, to engage in a productive livelihood and to not to be a menace to the community. Since these persons are still nder the Jurisdiction of their respective officers, it is imperative upon the our judicial system and our State to see to it that these individuals’ health are being monitored, in the same vain that their well-being, in aspects of psychological, physical, mental as well as spiritual, are restored and sustained.
Furthermore, subjecting them to mandatory drug testing is, in effect, monitoring the presence of illegal drugs within our State penitentiaries. It is therefore logical to submit themselves on constant drug testing to be able to continuously monitor their status s a member of the community. Random drug testing is therefore recommended onto these persons. To pass the constitutionality of the proposed legislation, the operative concepts of “randomness” and “suspicionless” in mandatory drug testing must be met.
Random testing is performed on an unannounced, unpredictable basis on probationers and parolees whose identity has been placed from the pool of probationers and parolees under their respective Jurisdictions which are to be randomly selected so everyone has an equal chance of being selected for testing. Suspicionless, on one hand, uggests that they are to be tested not by reason of having seen, reported, or has a previous record of illegal drugs use. These individuals are to be tested to ensure that they are in full compliance of the conditions of their release; to be a valuable member of the community, to name a few.
Parolees and probationers’ right to privacy is certainly diminished, but is not eliminated. From the signing of an agreement to abide by the conditions of their probation, probationers and parolees the controls of the ordinary citizen. These individuals convicted of a crime, whether n probation or parole, do not retain the privacy rights enjoyed by the average citizen, as they are under the continuous supervision by the government to see to it they are in full compliance with the conditions of their release. Having met the above-sited conditions, subjecting these individuals for mandatory drug testing is therefore CONSTITUTIONAL.
II. PRISONERS Drugs in prisons, as it may not be amiss to state its rampant sale or trafficking inside the prison walls, in addition to the direct damage they cause to a prisoner, create risks to the safety of prisoners because of violence, self-harm, overdose and debt. More generally drugs destabilize the prison environment, with inherent risks to those working in and visiting prisons. They also severely hamper efforts to rehabilitate prisoners, many of whom have a history of drug misuse and associated offending in the community.
In that context there are clear government commitments to reduce the availability and use of drugs in prisons. In fact, reports (in the media) have been coming concerning the rampant smuggling of illegal drugs inside the prison cells in the country through visitors who tries to sneak in this contraband. Other than stricter olicies and tight precautionary measures, which include a thorough inspection of items being brought in by visitors of detainees and body inspection, legislation must be made to ensure that our inmates are drug-free.
On the concept of “randomness”, drug testing on our inmates done in the same manner as that of the parolees and probationers, all of them are to be subjected to mandatory drug testing on an unannounced and unpredictable basis on the pool of prisoners within their respective detention facilities so everyone will also have an equal chance to be tested. The mandatory drug testing is rather “suspicionless” despite the fact of the existence of illegal drug market within the prison cells, for it is done on an inmates without suspicion that they are actually engage in such illegal activities.
Upon their detention, prisoners’ right to privacy are taken away so as to ensure and maintain the security of him and their fellow inmates. Several measures have been adopted also to preserve internal order and discipline. Therefore, prisoners cannot invoke that this proposed legislation will be a blatant violation of their right to privacy as this right do ot, in the first place, exist within the walls of the detention facilities. Hence, CONSTITUTIONALITY of subjecting prisoners to mandatory drug testing must be upheld.
Ill. APPREHENDED INVIDUALS WHO ARE UNDER THE INFLUENCE OF DANGEROUS DRUGS I find the situation entirely different in the case of persons arrested under the influence of drugs. Remember that the operative concepts of “randomness” and “suspicionless” must be met to sustain the constitutionality of mandatory drug testing. In case of these particular individuals, they are not randomly selected to ommission of a crime or violation of a law.
Thus, the test is neither unannounced nor unpredictable. Furthermore, under the proposed legislation; paragraph “l) AN APPREHENDED INVIDUAL WHO AT THE TIME OF THE ARREST OR COMMISSION OF A CRIME, THE LAW ENFORCEMENT OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE INDIVIDUAL IS UNDER THE INFLUENCE OF DANGEROUS DRUGS OR OTHER SIMILAR SUBSTANCES, SHALL UNDERGO MANDATORY DRUG TESTING”, the concept of “suspicionless” seems to be in contrary with the phrase “probable cause to believe”.
As defined, probable cause means “sufficient reason based upon known facts to elieve a crime has been committed”, from this standpoint, drug testing will be made upon these individuals when law enforcement officers believe that the former is under the influence of illegal drugs. Hence, the concept of “suspicionless” under this type of person/individual is not met. As stated in the case of Social Justice Society vs.
Dangerous Drugs Board and PDEA on the constitutionality of mandating drug testing on person charged before the prosecutor’s office with criminal offenses, the Supreme Court said, “to impose mandatory drug testing on the accused is a blatant attempt to arness a medical test as a tool for criminal prosecution, contrary to the stated objectives of R. A. 9165. Worse still, the accused persons are veritably forced to incriminate themselves. RECOMMENDATION/POSSIBLE ISSUES If I may, I am respectfully submitting the following recommendations for the proposed legislation and the possible issues that may be brought up during the Committee deliberations; a. Under paragraph H, it is stated that individuals such as prisoners, parolees, and probationers shall undergo random drug testing EVERY SIX MONTHS. I would like to suggest that instead of using the phrase “every six months”, the proposed legislation must use the phrase “twice a year”.
The idea of random drug testing is primarily it is unannounced and unpredictable, by using the phrase “every six months”, these concern individuals, in effect, are given an idea as to when they will be called upon to be tested, hence can Just easily abstain or refrain from taking these illegal drugs from a certain period of time period submitting themselves for examination, thus, rendering the drug test useless and ineffective. If we are to eplace the phrase “every six months” to “twice a year”, then, the idea of randomness can be achieved rendering the test effective and efficient. . There were statements from the PNP Human Rights Affairs Office that the rampant use of illegal drugs within the prison walls is “Just a matter of internal management policy and not the rigor of legislation. ” Hence, it is worth emphasizing that there has been a failure of “internal management policy’ leading to the continuous and unabated spread and abuse of illegal drugs in the country’s Jails, thus the need for this legislation. c. What will appen when these individuals test positive or failed to report for testing? . What will be the source of fund to be used for this proposed legislation? CONCLUSION Given the afore-mentioned arguments and recommendations, l, therefore, respectfully submit the following conclusions; a. Mandating drug testing to probationers and parolees, having met the operative concept of “randomness” and “suspicionless” for the same, its constitutionality may be upheld; b. On prisoners, by walls and having met the test of “randomness” and “suspicionless”, its constitutionality may also be upheld; c.
With regard to apprehended individuals over whom the law enforcement officers have probable cause to believe to be under the influence of dangerous drugs, it may be ruled against its constitutionality while complying with the principle of “randomness” but not conforming to the concept of “suspicionless”. d. The term “every six months” may be replaced with the phrase “twice a year” in order to confirm to the principle of “randomness”. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final Judgment of another crime embraced in the same title of this Code.