On the Unconstitutionality of Sec. 36 (g) of RA 9165
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36 (g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that “no person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test.”
Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not he drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement. (Pimentel v. COMELEC, G.R. No. 161658, Nov. 3, 2008)
On the Constitutionality of Sec. 36 (c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process “the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs.” This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of “an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.
Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other that saying that “subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy, has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.
Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees’ privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. (Social Justice Society v. PDEA, G.R. No. 157870, Nov. 3, 2008)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.
When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test 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 drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.
Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. (People v. Del Monte, G.R. No. 179940, April 23, 2008; People v. Clemente, et.al., G.R. No. 178876, June 27, 2008; People v. Macatingag, G.R. No. 181037, January 19, 2009)
Assuming that Sections 21 and 86 were indeed breached, appellant should have raised these issues before the trial court. This, he did not do. Never did he question the custody and disposition of the items that were supposedly taken from him. It was only on appeal before the Court of Appeals that he raised them. This, he cannot do. We held:
The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers’ alleged violations of Sections 21 and 86 of Republic Act 9165 were not raised before the trial court but were raised instead for the first time on appeal. In no instance did appellant least intimate at the trial court that were lapses in the sakekeeping of the seized items that affected their integrity and evidentiary value. Objection t evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal. (People v. Pringas, G.R. No. 175928, August 31, 2007)
Transfer of Drug-Related cases to PDEA (Sections 21 & 86 of R.A. 9165)
To recapitulate, the challenged buy-bust operation, albeit made without the participation of PDEA, did not violate appellant’s constitutional right to be protected from illegal arrest. There is nothing in Republic Act No. 9165 which even remotely indicate the intention of the legislature to make an arrest made without the participation of the PDEA illegal and evidence obtained pursuant to such an arrest inadmissible. Moreover, the law did not deprive the PNP of the power to make arrests. (People v. Sta. Maria, G.R. No. 171019, February 23, 2007)
Negative Allegation
The general rule is that if a criminal charge is predicated on a negative allegation, or a negative averment is an essential element of a crime, the prosecution has the burden to prove the charge. However, this rule admits of exceptions. Where the negative of an issue does not permit of direct proof, or where the …………… onus probandi rests upon him. Stated otherwise, it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence within the defendant’s knowledge or control. For example, where a charge is made that a defendant carried on a certain business without a license (as in the case at bar, whether the accused is charged with the sale of a regulated drug without authority), the fact that he has a license is a matter which is peculiarly within his knowledge and he must establish that fact or suffer conviction. x x x (italics in the original) (Su Zhi Shan @ Alvin Ching So, v. People G.R. No. 169933, March 9, 2007)
Limited Application of the RPC on R.A. 9165
With the aforesaid section, the provisions of the Revised Penal Code shall no longer apply to the provisions of the Drugs law except when the offender is a minor. Thus, Article 63(2) of the Revised Penal Code shall not be used in the determination of the penalty to be imposed on the accused. Since Section 98 of the Drugs law contains the word “shall,” the non-applicability of the Revised Penal Code provisions is mandatory, subject only to the exception in case the offender is a minor. (People v. Nicolas, G.R. No. 170234, February 8, 2007)
In accordance with Section 98, Article XIII of Republic Act No. 9165, the provisions of the Revised Penal Code find limited applicability with respect to the provisions of the said Act. Section 98 reads:
Sec. 98. Limited Applicability of the Revised Penal Code. – Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3815), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death.
Thus, in determining the imposable penalty, Article 63(2) of the Revised Penal Code shall not be applied. Under this article, in all cases in which the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied when there are neither mitigating nor aggravating circumstances. Since Section 98 of the Drugs Law contains the word “shall,” the non-applicability of the Revised Penal Code provisions is mandatory, subject to exception only in case the offender is a minor. (People v. Santos, G.R. No. 176735, June 26, 2008)
RECENT CASES on Section 21 of RA 9165
ACQUITTAL:
– Cacao v. People, G.R. No. 180870, January 22, 2010
The patent inconsistency between the testimonies of Mangapit and Pang-ag, on one hand, and the testimony of Ancheta on the other hand, necessarily leads to doubt that the plastic sachet of shabu identified in court is the same item that was allegedly seized and confiscated from petitioner. At any rate, the identification made by the witnesses on the item allegedly seized from petitioner is rendered meaningless and bereft of probative value in view of the categorical denial of the evidence custodian that he received the same from Mangapit. Hence, there can be no crime of illegal possession of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug.
– People v. Kamad, G.R. No. 174198, January 19, 2010
The following links must be established ion the chain of custody in a buy-bust situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. In this case, however, SPO2 Sanchez’ testimony lacks specifics on how the seized shabu was handled immediately after the accused-appellant’s arrest. SPO2 Sanchez’ testimony regarding the post-arrest police investigation failed to provide particulars on whether the shabu was turned over to the investigator. The pieces of evidence notably fail to identify the person who personally brought the seized shabu to the PNP Crime Laboratory. They also fail to clearly identify the person who received the shabu at the forensic laboratory.
There was also non-compliance with the prescribed procedure under Sec. 21 of RA 9165. SPO2 Sanchez failed to provide specific details on how the seized shabu was marked although the evidence shows that the shabu was marked as “ES-1-161009” before it was sent to a forensic laboratory. His testimony also failed to state whether the marking of the shabu was done immediately after its seizure (as Section 21 of RA 9165 requires) or during the investigation. His testimony likewise failed to disclose if a physical inventory and photography of the seized items had taken place, or if they had, whether these were undertaken in the presence of the accused or his counsel, or a representative from the media and the Department of Justice, and of an elective official.
– People v. Frondozo, G.R. No. 177164, June 30, 2009
To establish the identity of the shabu seized from Frondozo, the procedures laid down in Rep. Act No. 9165 should be complied with. Section 21 of the Implementing Rules and Regulations of Rep. Act No. 9165 clearly outlines the post-seizure procedure in taking custody of seized drugs. It states: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy therof.
In this case, the arresting officers failed to strictly comply with the procedures for the custody and disposition of confiscated dangerous drugs as prescribed by Rep. Act No. 9165. The arresting officers did not mark the shabu immediately after they arrested Frondozo. Further, while there was testimony regarding the marking of the shbu after it was turned over to the police investigator, no evidence was presented to prove that the marking therof was done in the presence of Frondozo. Also, fatal in the prosecution’s case is the failure of the arresting officers to take a photograph and make an inventory of the confiscated materials in the presence of Frondozo. Likewise, there was no mention that any representative from the media, DOJ or any elected public official had been present during the inventory or that any of these persons had been required to sign the copies of the inventory.
