In 2000 the Oregon Law Review (Vol. 79, Number 1) published the proceedings of a symposium on new and critical approaches to law and economics, led by a paper delivered by law professor Robert Cooter entitled “Three Effects of Social Norms on Law: Expression , Deterrence, and Internalization”.
I wish to summarize and discuss its salient points here for the benefit of legal researchers visiting this blog.
The concept of “instrumental rationality” enunciated by German sociologist Max Weber is embodied by modern state administration. It is defined as the “pursuit of explicit ends through efficient means.”
It contrasts with the belief of another German philosopher Franz Kafka, who holds that modern state bureaucracy embodies irrationality, or the “pursuit of contradictory ends by inefficient means.”
What determines whether state law is rational and efficient, or irrational and inefficient?
State organizations suffer from agency problems that preclude effective motivation of people by formal means alone. Perhaps effective formal institutions depend on flourishing informal institutions. With these thoughts in mind, political scientists have examined civic culture, economists have examined social capital, and legal scholars have examined social norms.
What is the vision of the proper role of the state in modern society?
There are three effects of social norms on law: expression, internalization, and deterrence.
Law has three functions: pronouncing the obligation, justifying it, and sanctioning wrongdoers.
Law must be aligned with morality to insure effective social control.
When do social norms collapse? What are the effects of non-legal sanctions on legal sanctions? How can law change behavior without deterring anyone?
An old tradition in Anglo- American jurisprudence, called the "imperative theory of law," asserts that a “law is an obligation backed by a state sanction”.
According to this tradition, a “social norm” is an “obligation backed by a social sanction”. By "obligation" is meant a “statement about what people ought to do”. By “social sanction” is meant “punishment imposed, not by state officials, but by ordinary people, such as shunning a litigious lawyer or refusing to deal with a law firm that organizes hostile takeovers.”
Social norms may be analyzed in terms of “demand, supply, and equilibrium”.
Obeying a norm often “costs something” in terms of money, time, effort, unpleasantness, or risk.
A person who has “internalized a norm” is willing to sacrifice something to obey it. The estimate is that 80% of the citizens will pay something to obey the norm, whereas roughly 20% will pay nothing.
There are those who believe that the only value that can be placed on obeying norms is “instrumental”.
For example, most lawyers view participating or not participating in hostile takeovers as purely instrumental. In so far as participating makes more money for them, they will participate.
Obeying a norm often imposes “direct costs” in money, foregone opportunity, inconvenience, or effort.
In addition, obeying a norm often has “instrumental value”, such as obtaining praise, esteem, promotion, and preferential dealings. Obeying a norm also conveys the benefit of “avoiding a social sanction”.
The “net cost of obeying” a norm equals the “direct costs minus the instrumental benefit”.
For social norms, the costs of obeying a norm can also decrease for a sociological reason. People are notoriously susceptible to “group pressures”, which are variously described as “conformity, herd effects, or social solidarity”. Group pressures often “lower the relative cost of popular acts”.
Now, consider the direction of movement when the system is out of equilibrium. If the willingness-to-pay curve is above the expected cost curve, more people are willing to do the act than required to sustain the current cost of doing it, so the cost is decreasing. Conversely, where the cost curve is above the willingness-to-pay curve, fewer people are willing to do the act than are required to sustain the current cost of doing it, so the cost is increasing.
If everyone believes that less than 20% of the citizens will obey the norm, then their belief will prove correct and the system will converge to the equilibrium at 0%.
Conversely, if everyone believes that more than 20% of the citizens will obey the norm, then their belief will prove correct and the system will converge to the equilibrium at 50%. Thus, the system has characteristics of a “self-fulfilling prophecy”.
Given this fact, the law, by influencing people's beliefs about what others will do, might play a crucial role in determining the outcome.
For example, assume the state wants citizens to obey the social norm. If the state is careful about its pronouncements, so that most citizens believe them, then the state might cause the system to converge to the equilibrium at 50% merely by making the appropriate pronouncement.
The law may tip the balance in favor of “informal enforcement”.
Mere proclamation of a rule tips the balance in favor of informal enforcement by citizens.
Different countries have different levels of “internalization of the social norm”.
In general, social interactions can have multiple equilibria whenever the net cost of obeying a norm decreases with the number of obedient people.
A credible state can influence the choice of multiple equilibria among citizens by pronouncing the law.
The “expressive power” of the law derives from pre-existing multiple equilibria in the underlying system of social interactions.
Pronouncements by state officials influence citizens. To predict the success or failure of pronouncements, a “theory of expressive law” needs the concept of "cheap talk." The distinction between “cheap and expensive talk” turns on the difference between incentives and expectations.
Expensive talk, such as contracting, disclosing, or distorting, changes the schedule of payoffs attached to different actions.
To illustrate, breach of contract triggers damages, inaccurate disclosure risks liability, and extortion provokes criminal punishment.
Cheap talk does not change the schedule of payoffs. Instead, under certain circumstances, cheap talk changes expectations.
How can cheap talk change expectations without changing the schedule of payoffs? If it is in my best interest to reveal my true plans to you, then you have reason to believe my pronouncements about my plans.
Under these circumstances, you should believe what I say, even though my saying it does not affect my legal liabilities or otherwise change my schedule of payoffs.
The conditions for credible cheap talk apply to everyone, including government officials. If government officials plan to do something, and the payoff to officials is highest when citizens have correct beliefs about official plans, then the official pronouncement is credible.
A good political leader uses cheap talk to change the behavior of citizens.
To demonstrate, assume the leader announces plans to increase dramatically the percentage of citizens who obey the social norm. If at least 20% of the citizens believe that the leader has such a plan that will succeed, then they will begin to obey the norm, which will cause 30% more of the citizens to follow their example, and the system will ascend to the equilibrium where 50% do their duty.
The success of the leader's plan will increase his credibility among citizens.
Like this leader, officials in an effective state announce plans that will work and avoid announcing plans that will fail.
For example, officials should wait to announce that they plan to eliminate smoking in airports “until social conditions are right for the plan to succeed”.
Conversely, if politicians manipulate people by announcing unrealistic plans, citizens will believe that the officials are really planning something else.
Rearranging the payoffs can change the coordination game into a “game of perfect deceit”, where a person always wants others to believe the opposite from his true plans. Or, rearranging the payoffs can produce a game of imperfect deceit, where a person sometimes wants others to believe the opposite from his true plans.
In either of these cases, cheap talk is ineffective.
Compared to cheap talk, expensive talk is formal, legalistic, and clumsy. Consequently, expensive talk has higher transaction costs than cheap talk.
The state that creates incentives for effective cheap talk between officials and citizens saves transaction costs. Effective cheap talk uses law expressively.
In general, the expressive function of law works best when state officials enjoy credibility.
Credible talk complements the “ideal of public reason”. The ideal of public reason concerns the conditions of political discourse in a liberal democracy. In a liberal democracy, officials ideally give the true reasons for public policies.
Candor promotes public debate and makes democratic deliberation meaningful. Arranging incentives of officials to make cheap talk credible promotes the ideal of public reason.
Economists have designed "incentive compatible mechanisms" for the supply of public goods.
No research focusing on mechanisms to induce public officials to disclose their true plans exist.
The theory of cheap talk provides the foundation for designing mechanisms to induce public officials to disclose their true plans.
Having discussed expression, I turn to the deterrence of wrongdoing. As already discussed, the imperative theory defines a law as an obligation backed by a sanction.
When law aligns with social norms, the law can use state sanctions to supplement social sanctions.
For example, fines can supplement the shame associated with being a tax cheater. Supplementing the social sanction with a legal sanction increases the total sanction. An increase in the total sanction from disobeying a norm is equivalent to a decrease in the relative cost of obeying the norm.
The goal of deterrence typically requires the injurer to internalize the harm that he caused. In the absence of a social sanction, a judgment forces the injurer to internalize the harm that he caused. In the presence of a social sanction and a legal judgment, the injurer will internalize more than the social cost of the harm that he caused. To internalize exactly the social cost of the harm that he caused, the injurer who faced a social sanction should pay a legal judgment.
Assume that law causes internalization and consider its effects. Whereas deterrence shifts the cost curve, internalization shifts the willingness-to-pay curve.
Economics can comprehend the internalization of values by assuming a "taste" for obeying social norms. Postulating different tastes among people, however, accomplishes little in the absence of an explanation of why some people have such tastes and others do not.
Economic theory is only beginning a sustained inquiry into the question, "Where do preferences come from?".
People care about their partners' trustworthiness. People have more trust in morally committed persons, who will sacrifice to do the right thing.
People often prefer partners who have internalized morality.
To act on this preference, people must observe the moral commitments of others. The moral commitments of strangers are opaque, but, as people get to know each other better, their moral commitments become translucent.
Given that moral commitments are translucent and people care about the moral commitments of their partners, moral commitments affect opportunities.
The dependence of opportunities on preferences gives a person an incentive to change his preferences.
If people tend to make moral commitments to increase their opportunities, then the state has only limited power to cause citizens to internalize values.
To induce people to internalize values, the state must reward citizens for having civic virtue.
For this purpose, officials bestow honors, awards, and praise, as well as their opposites (dishonor, punishments, and condemnations).
To reward people for having civic virtue, however, the state must infer character from behavior. Inferring character from behavior requires intimate knowledge of the person. Since officials in large states are remote from most citizens, the character of each citizen is relatively opaque to state officials. Consequently, officials lack the information needed to reward people for acquiring civic virtue.
Compared to the state, people in intimate relationships with each other are relatively good at inferring character from behavior. Consequently, the primary influences on character are intimate relationships such as families, friends, and colleagues. Given these facts, the state will have limited success instilling civic virtue in citizens. Instead, the state should prompt family, friends, and colleagues to instill civic virtue in each other. In so far as family, friends, and colleagues prefer relationships with civic-minded people, individuals have an incentive to cultivate civic virtue. The primary way to prompt people to instill civic virtue in each other is by aligning law with morality. When law aligns with morality, individuals who cultivate morality necessarily acquire civic virtue. Consequently, the law enlists the force of internalized morality to achieve the ends of the state.
Promulgating a law often involves proclaiming a new obligation, describing the sanction attached to its violation, and providing reasons for enacting it.
Proclaiming a legal obligation gives people instructions on what to do, which principally promotes the coordination of behavior.
Attaching a sanction to an obligation specially deters its violation.
Explaining the law ideally convinces citizens to follow it.
In brief, the three aspects of promulgating a law chiefly aim at expression, deterrence, and internalization.
Laws that have all three parts potentially have all three consequences. To illustrate, consider promulgating a law prohibiting a particular pollutant. The new law's pronouncement may make polluters expect that others will abate. If more abatement increases the social pressure on polluters, then the change in expectations might cause a jump to a new equilibrium (expressive effect). In addition, when the state attaches a sanction to polluting, some polluters will abate to avoid the sanction (deterrence effect). Finally, the legal explanation for this new obligation may convince some people to change their values and prefer to abate (internalization effect).
In conclusion, law and social norms have complementary strengths as means of social control. First, informal social norms are vague, general principles. To illustrate, social norms are imprecise about the obligations that smokers owe to non-smokers or the appropriate sanction for a tax cheater. The promulgation of a law often transforms a vague principle with an imprecise sanction into an explicit obligation with a definite sanction. Second, citizens use all available information, including gossip and rumor, when applying informal social sanctions, whereas officials apply sanctions after a trial or hearing that follows prescribed rules of evidence.
Third, compared to social norms, law can impose heavier punishments, whose application involves more risk to the enforcer.
To illustrate, many people will complain about someone lighting a cigarette in an airport, but few citizens will intervene to prevent an armed robbery.
Similarly, the law prohibits private citizens from imprisoning robbers.
Which is better, a vague formulation of an obligation and sanction combined with a subjective determination of wrongdoing and enforcement by public citizens, or an authoritative formulation of an obligation and sanction combined with an objective determination of wrongdoing and enforcement by professionals? Social norms have the
advantages of flexibility and low transaction costs, whereas law has the advantage of precision and the disadvantage of high transaction costs. When social norms fail to control harmful behavior, law should supplement them.
The "normative failures" theory of law resembles the market failures theory of regulation.
When norms fail on their own, the best system of social control often supplements
norms with law.
Social norms influence the response of citizens to law through expression, deterrence, and internalization. A better understanding of these effects, including the empirical estimation of their strength in practical situations, can improve social control by overcoming potentially crippling agency problems in the modern state.
To all of the above, Prof. Herman Selvin wrote that the decisive reason for the advance of bureaucratic organization has always been its purely technical superiority over any other form of organization.
The fully developed bureaucratic mechanism compares with other organizations exactly as does the machine with the non-mechanical modes of production.
A perfect bureaucracy operates, thus: Precision, speed, unambiguity, knowledge of the files, continuity, discretion, unity, strict subordination, reduction of friction and of material and personal costs--these are raised to the optimum point in the strictly bureaucratic administration.
Bureaucratization offers above all the optimum possibility for carrying through the principle of specializing administrative functions according to purely objective considerations.
The positive theory asserts that law is the command of a sovereign, where a sovereign is someone whom others obey and who does not obey anyone.
Generalizing, the "sovereign" becomes the process for making laws stipulated in higher level laws.
A law created by following the correct procedures has the right "pedigree."
In the modern formulation, a law regulating behavior is an effective obligation with the right pedigree.
The general problem is that credible cheap talk requires a coordination game, whereas the "game" played by most officials who interact with the public does not have this character. So the general problem is to convert other kinds of games into coordination games for public officials.
Moral commitment has a psychological element of guilt that arises from habit and conditioning.
Guilt is the subject of many psychological studies.
Moral commitment also has a rational element of belief, which is the subject of many philosophical studies.
The extent to which moral commitment is rational, however, has long been the subject of dispute.
Wednesday, November 5, 2008
Unconstitutional
The Philippine Supreme Court has partially granted my petition in connection with the unconstitutionality of certain parts of Section 36 of R.A. 9165 (Dangerous Drugs Act of 2002). My petition was docketed as GR No. 158633 and entitled “Atty. Manuel J. Laserna Jr. vs. Dangerous Drugs Board, et. al.”
The Supreme Court agreed with me that the random, suspicionless and mandatory drug tests required of elective candidates and of respondents facing criminal complaints before the Prosecutors with an imposable penalty of more than 6 years is unconstitutional. However, it disagreed with me insofar as students and workers are concerned.
The other petitioners were Sen. A. Pimentel and the Social Justice Society. Our petitions were consolidated. The ponente was Assoc. Justice P. Velasco.
Philippine dailies reported the SC decision on Nov. 5, 2008. I have summarized below the salient parts of my petition. I have also posted below the news items that carried the report.
Sec. 36 of R.A. No. 9165 imposes the requirement of mandatory, suspicionless and random drug tests nationwide among all high school and college students, all public and private officers, workers and employees, all local and national candidates for elective and appointive government positions, and all respondents facing preliminary investigations of the criminal complaints filed against them with an imposable penalty exceeding 6 years and 1 day.
My position was that the said provision was violative of the Filipino citizens’ constitutional right to privacy, right against unreasonable search and seizure and self-incrimination, and right to due process of law and equal protection of the laws.
The relevant portions of Sec. 36 of R.A. 9165 read:
(a) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school’s student handbook and with notice to parents, undergo a random drug testing; Provided, That all drug testing expenses whether in public or private schools under this Section will be borne by the government;
(b) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company’s work rules and regulations, which shall be borne by the employer, for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;
(c) All persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one day shall have to undergo a mandatory drug test; and
(d) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.
In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.”
Section 15 of R.A. No. 9165 provides:
“SEC. 15. – Use of Dangerous Drugs. - A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty Thousand Pesos (P50,000.00) to Two Hundred Thousand Pesos (P200,000.00); Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided under Section 11 of this Act, in which case the provisions therein shall apply.”
Under Sec. 36 of R.A. No. 9165, the following constitutional infirmities are evident:
1. High school and college students (the great bulk of whom are minors) shall undergo MANDATORY drug tests. It may be “random” (the adjective used in Sec. 36 [c]) but it is mandatory and compulsory. The provision merely requires “notice” to the parents, but not their “consent”, making its mandatory nature more evident. It appears that the implementing rules of Sec. 36 to be issued soon by the respondent DDB must be compulsorily included in the school’s student handbook (requiring mandatory amendments to the student handbook). Although Sec. 36 © is silent about it, it appears that a student found positive of use of dangerous drugs may be administratively expelled by the school authorities. (Sec. 36 [c], R.A. No. 9165). Aside from the said administrative sanction, there is the probability that they would be exposed to potential criminal proceedings under the law (Sec. 15, R.A. No. 1965).
2. Public and private workers, employees, and officers, whether domestic or overseas, shall likewise undergo MANDATORY drug tests. Again, it may be “random” (the adjective used in Sec. 36 [d]) but it is mandatory and compulsory. It appears that the implementing rules of Sec. 36 to be issued soon by the respondent DDB must be compulsorily included in the company’s work rules and regulations (requiring mandatory amendments to the company’s work rules and regulations). Sec. 36 (d) expressly provides that any officer or employee found positive for use of dangerous drugs may be administratively suspended or terminated from work subject to the provisions of Art. 282 of the Labor Code and the pertinent provisions of the Civil Service Law. (Sec. 36 [d], R.A. No. 9165). Aside from the said administrative sanction, there is the probability that they would be exposed to potential criminal proceedings under the law (Sec. 15, R.A. No. 1965).
3. All persons charged before the prosecutor’s office (that is, whose criminal cases are still undergoing preliminary investigation) with a criminal offense having an imposable penalty of not less than 6 years and 1 day shall undergo MANDATORY drug tests. (Sec. 36 [f], R.A. No. 9165). A citizen facing a preliminary investigation for a pending criminal complaint (whatever its nature or type might be) shall now be required to undergo a mandatory drug test, regardless of whether or not his pending case is related to dangerous drugs use and regardless of whether or not the result of such mandatory drug test is relevant or material to the pending criminal complaint against him. (Sec. 36 [g], R.A. No. 9165). Aside from their pending criminal complaints, there is the probability that they would be potentially exposed to additional criminal proceedings under the law (Sec. 15, R.A. No. 1965).
4. All candidates for public office whether appointive or elective both in the national of local government shall undergo a mandatory drug test. (Sec. 36, [g], R.A. No. 9165). The Constitution alone may provide for the qualifications of national elective and appointive officials, the constitutional officials of the land, and the members of the independent constitutional commissions, agencies and bodies. (As to the local elective and appointive officials and employees, Congress may provide for their qualifications, e.g., the Local Government Code, the Civil Service Law, the Revised Administrative Code, and other laws). R.A. No. 9165 in effect adds a new mandatory qualification for national elective officials, like the President, the Vice President, and the Senators, and other constitutional officials, such as the members of the Supreme Court, the Ombudsman, the members of the Judicial and Bar Council, and the members of the independent constitutional bodies, that is, they must all pass the mandatory drug tests under that law. It will be noted that constitutional officials may only be removed from office by IMPEACHMENT, and not by operation of R.A. No. 1965; and the specific procedures for their nomination and appointment are clearly spelled out in the Constitution (which R.A. No. 9165 may not amend). Finally, the public and private officials and employees would be exposed to other potential criminal cases arising from the mandatory drug tests.
5. The high school and college students, the public and private officials and employees, the respondents in criminal complaints undergoing preliminary investigations, and the local and national candidates (elective or appointive positions) would all be exposed to unreasonable search and their right to privacy violated by Sec. 36 of R.A. No. 9165.
Sec. 1 and Sec. 2, Art. III of the 1987 Constitution provide:
“Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”
“Sec. 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, xxxx.” (See also: Art. 32, Civil Code).
The right of privacy is both constitutional and statutory. (Sec. 3, Art. III, 1987 Constitution; Art. 26, Civil Code). Any evidence obtained in violation of a citizen’s right to privacy and right against unreasonable search and seizure shall be inadmissible for any purpose in any proceeding. (Sec. 3 [2], Art. III, id.).
The 1987 Constitution provides that no person may be compelled to be a witness against himself (Sec. 17, Art. III, 1987 Constitution). No person shall be held to answer for a criminal offense without due process of law. (Sec. 14, id.).
The provisions of Art. III of the 1987 Constitution have their roots in the Bill of Rights of the US Constitution. The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the schools and the workplaces. The US courts have been consistent in their rulings that mandatory drug tests violate a citizen’s constitutional right to privacy and right against unreasonable search and seizure. I cited various US cases in support of my legal theory.
Philippine Dailies’ News Items
on the Supreme Court Decision
Dated November 5, 2008.
SC strikes out drug tests for candidates
By Norman Bordadora
Philippine Daily Inquirer
First Posted 22:10:00 11/04/2008
MANILA, Philippines—The Supreme Court has struck down as unconstitutional provisions of the Dangerous Drugs Act that require drug tests for candidates for public office—whether elective or appointive, in local and national levels.
In an en banc decision on November 3, the Supreme Court also nullified the anti-drug legislation’s provision for mandatory drug testing for persons charged before the prosecutor’s office with a crime carrying a penalty of not less than six years.
The high tribunal has enjoined all concerned government agencies from implementing mandatory drug tests on candidates for public office and on persons charged with a crime carrying a penalty of not less than six years.
The court, however, upheld the mandatory drug test provisions for high school and college students and for officers and employees of public and private offices, subject to the school or company rules and regulations.
The decision, penned by Justice Presbiterio Velasco Jr., was made in connection with the petitions filed by Senator Aquilino Pimentel Jr., the Social Justice Society, and lawyer Manuel Laserna Jr. against the mandatory drug tests.
Pimentel, a senatorial candidate in the 2004 elections, sought in December 2003 to nullify the drug test for candidates, saying it was unconstitutional because “they impose a qualification for senators in addition to those already provided for in the 1987 Constitution.”
He also asked that the Commission on Elections be enjoined from implementing a resolution for the mandatory testing for candidates for elective positions based on the Dangerous Drugs Act.
He said the Constitution only required that candidates meet the qualifications on citizenship, voter registration, literacy, age and residency.
“Pimentel’s contention is well-taken. Accordingly, Section 36 (g) of RA 9165 should be, as it is hereby declared, as unconstitutional,” the high court said in its decision.
“It is basic that if a law or an administrative rule violates any norm of the Constitution, that the issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform,” it added.
The high tribunal also found “no valid justification for mandatory drug testing for persons accused of crimes.”
“The operative concepts in the mandatory drug testing are ‘randomness’ and ‘suspicionless.’ In the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless,” it said.
“The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint,” it added.
Aside from questioning the constitutionality of the mandatory drug tests for candidates and individuals charged with crimes, the SJS and lawyer Laserna also questioned the constitutionality of such tests on students and employees.
The Supreme Court, however, found the mandatory tests on students and employees constitutional.
http://newsinfo.inquirer.net/breakingnews/nation/view/20081104-170250/SC-strikes-out-drug-tests-for-candidates
PIA Press Release
2008/11/05
Drug testing for candidates unconstitutional, Supreme Court rules
Manila (5 November) -- Congress cannot enact laws which violates the provisions of the Constitution.
With this premise, the Supreme Court has ruled as unconstitutional sections of Republic Act 9165 or the Comprehensive Dangerous Drugs Act of 2002 which requires for drug testing of candidates both in the national and local posts.
The Supreme Court, in an en banc decision on November 3, declared as unconstitutional Section 36 (f) and Section 36 (g) of RA 9165.
The High Court also nullified the antidrug legislation's provision for mandatory drug testing for persons charged with a crime carrying a penalty of not less than six years.
Section 36(g) requires all candidates for national and local positions to undergo a mandatory drug test while Section 36(f) mandates all persons charged before the prosecutor's office with a criminal offense having a penalty of imprisonment of not less than six years to undertake mandatory drug test.
However, the Supreme Court upheld the mandatory drug test provision for high school and college students and for employees of both public and private offices, subject to the school or company rules and regulations.
The decision penned by Justice Presbitero Velasco Jr. was made in connection with the petitions filed by Sen. Aquilino Pimentel Jr., the Social Justice Society, and the lawyer Manuel Laserna Jr., against the mandatory drug tests.
Sen. Pimentel, in his petition, sought the nullification of Section 36(g) of RA 9165 and Commission on Elections Resolution 6486 issued on Dec. 23, 2003 that prescribes the rules and regulations on the mandatory drug testing of candidates.
The senator, who ran for re-election in the May 10, 2004 elections, argued that the provision and Comelec resolution should be nullified since they impose another qualification for senatorial candidates in addition to those already provided for in the 1987 Constitution.
Sen. Pimentel said under Article VI Section 3 of the Constitution, candidates should only meet the qualifications of citizenship, voter registration, literacy, age, and residency.
In granting Pimentel's petition, the Supreme Court noted that Section 36(g) of RA 9165 and Comelec Resolution 6486 add another qualification layer to what the 1987 Constitution requires. The Supreme Court stressed that Congress cannot enact laws which violate the provisions of the Constitution. (PIA 8) [top]
http://www.pia.gov.ph/?m=12&fi=p081105.htm&no=33
Drug tests for candidates illegal—high court
By Rey E. Requejo
THE Supreme Court struck down as unconstitutional the provision of the Dangerous Drugs Act of 2002 (Republic Act 9165) requiring mandatory drug testing for candidates for public office and those charged with a crime punishable with more than six years imprisonment.
But the 23-page decision written by Associate Justice Resbiterio Velasco Jr. upheld the constitutionality of random drug testing for secondary and tertiary level students as well as employees and officials of public and private offices.
Voting unanimously, the high tribunal partially granted the consolidated petitions filed by Senator Aquilino Pimentel Jr. against the Commission on Elections; the Social Justice Society against the Dangerous Drugs Board and Philippine Drug Enforcement Agency; and lawyer Manuel J. Laserna Jr. against the Dangerous Drug Board and PDEA.
In particular, Pimentel had sought to nullify Section 36 (g) of RA 9165 and Comelec Resolution 6486 issued on Dec. 23, 2003 that prescribed rules and regulations for mandatory drug testing for candidates.
The senator said this imposed an additional qualification apart from those already provided for in Section 3, Artivcle VI of the 1987 Constitution.
He said the Constitution explicitly states that candidates need only meet the qualifications such as citizenship, voter registration, literacy, age and residency.
SJS and Laserna, for their part, sought to restrain the DDB and PDEA from enforcing four provisions of Sections 36 as these were constitutionally infirm.
They claimed that these provisions provided undue delegation of legislative power when they give schools and employers sole discretion to determine the manner of drug testing.
They pointed out that the random drug testing can be used to harass a student or an employee, and violates a person’s constitutional right against unreasonable searches.
In granting Pimentel’s petition, the high tribunal said they agreed to the lawmaker’s argument this added another qualification layer and Congress cannot enact law which violates the provisions of the Constitution.
http://www.manilastandardtoday.com/?page=politics2_nov5_2008
SC upholds drug tests for students but not for poll bets
By REY G. PANALIGAN
In a precedent-setting decision, the Supreme Court (SC) has declared constitutional the provisions in the Comprehensive Dangerous Drugs Act of 2002 that require high school and college students, and officers and employees in public and private offices to undergo a mandatory, random, and suspicionless drug test.
But the SC, in a unanimous full court decision written by Justice Presbitero J. Velasco Jr., struck down as unconstitutional the provisions that require drug tests for candidates for public office in the national or local governments and those charged before the prosecutor’s office with a criminal offense.
With the ruling, the SC granted the petition filed by Sen. Aquilino Pimentel Jr. against the Comelec pertaining to Section 36(g) and partially granted the petitions filed by Social Justice Society and lawyer Manuel J. Laserna Jr. against the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) in connection with Section 36 (c, d, and f).
The Comelec, and the DDB and PDEA are barred from implementing Section 36 (g) and Section 36(f) of RA 9165, respectively.
Citing American jurisprudence, the SC said that "the court is of the view and so holds that the provisions of Republic Act No. 9165 (the Comprehensive Dangerous Drugs Act of 2002) 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," it said.
The SC took note of the proliferation of prohibited drugs in the country "that threatens the well-being of the people, particularly the youth and school children who usually end up as victims."
"Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected," it said.
"Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students," it added.
"Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Section 36 of RA 9165 for officers and employees of public and private offices is justifiable," the SC said.
"Section 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience."
It pointed out that "the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee’s privacy and dignity."
"In addition, the IRR issued by the Department of Health provides that access to the drug results shall be on the ‘need to know’ basis; that the drug test results and records shall be kept confidential subject to the usual accepted practices to protect the confidentiality… and notably, RA9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the law received as a result of the operation of the drug testing."
Thus, it said "the intrusion into the employee’s privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal."
But in the case of mandatory drug test for candidates for national and local elections, the SC said, "it is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect."
It said that Section 36(g) of RA 9165 imposes qualifications on candidates in addition to what the Constitution prescribes.
"If Congress cannot require a candidate for senator (or any other elective public office) to meet such additional qualification, the Commission on Elections (Comelec), to be sure, is also without such power," the SC said.
"It ought to be made abundantly clear, however, that the unconstitutionality of Section 36(g) of RA9165 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" (or an elective official), the SC said.
In the case of persons charged before the prosecutor’s office with a criminal offense, the SC said, "a mandatory drug testing can never be random or suspicionless."
"When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will," it said.
"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 objectives of RA 9165. Drug testing in this case would violate a person’s right to private guaranteed under Section 2, Article III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves," it added.
http://www.mb.com.ph/MAIN20081105139982.html
November 05, 2008 07:01 PM Wednesday
Poll bets no longer required to undergo drug test By: Hector Lawas
The Supreme Court struck down for being unconstitutional a provision of the Comprehensive Dangerous Drugs Act of 2002 requiring national and local candidates to undergo mandatory drug testing.
Section 36 (g) requires all candidates for national and local posts to be tested for drugs while Section (f) mandates all persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six years to undergo mandatory drug test.
In its 25-page en banc decision penned by Associate Justice Presbitero Velasco, Jr., the High Court partially granted the consolidated petitions filed by Sen. Aquilino Pimentel, Jr. against the Commission on Elections, the Social Justice Society versus the Dangerous Drugs Board and Philippine Drug Enforcement Agency and lawyer Manuel J. Laserna, Jr., versus the Dangerous Drug Board and Philippine Drug Enforcement Agency.
Pimentel, who ran for re-election in 2004, argued that the provision should be nullified since the Constitution already set qualifications for candidates.
The Supreme Court said Congress cannot enact a law which violates the provisions of the Constitution.
“It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid it if conflicts with the Constitution,” it added.
The Court said if Congress has no power to impose additional qualifications for election candidates, the same can also be said for Comelec.
“The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution,” the tribunal added.
http://www.journal.com.ph/index.php?issue=2008-11-05&sec=4&aid=77570
Drug tests for poll bets unconstitutional
Written by Joel R. San Juan / Reporter
Tuesday, 04 November 2008 23:26
MANDATORY drug tests for high- school and university students have been upheld as constitutional by the Supreme Court (SC), with the en banc voting unanimously for the legitimacy of Republic Act (RA) 9165, or the Comprehensive Dangerous Drugs Act of 2002.
The provision on students is in Section 36 (c) of RA 9165. The Court also upheld the legality of Section 36 (d) that requires officers and employees of public and private offices, whether domestic or overseas but operating in the country, to undergo random drug testing.
The Court struck down, however, as unconstitutional Sections 36 (f) and (g) of the law. Section (f) mandates all persons charged at the prosecutor’s office with a criminal offense with a penalty of at least six years to undergo mandatory drug testing; while Section (g) requires drug tests for all candidates for national and local offices.
The en banc decision, written by Associate Justice Presbitero Velasco Jr., was in response to the consolidated petitions filed by Sen. Aquilino Pimentel Jr. against the Commission on Elections (Comelec), the Social Justice Society (SJS) versus the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA), and lawyer Manuel Laserna Jr. versus the Dangerous Drug Board and PDEA.
Pimentel had focused on Section 36 (g) on and Comelec Resolution 6486 issued on December 23, 2003, prescribing the rules and regulations on the mandatory drug testing of candidates.
He urged the Court to nullify that provision and the Comelec resolution, arguing they impose an additional qualification for candidates, at least for senators, in addition to those listed in the Constitution—citizenship, voter registration, literacy, age and residency.
On the other hand, SJS and Laserna asked the Court to prohibit the DDB and PDEA from enforcing Sections 36 (c), (d), (f) and (g) for being constitutionally infirm, arguing they constitute undue delegation of legislative power when they give schools and employers sole discretion to determine the manner of drug testing. They said these can be used to harass students or employees and violate a person’s constitutional right against unreasonable searches.
On Pimentel’s petition, the Court agreed that Congress cannot enact a law that violates the Constitution. “The Constitution is the basic law to which all laws must conform; no act shall be valid it if conflicts with the Constitution.”
The Court said logically the same can also be said for the Comelec. “The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.”
The Court said, however, that the sections on student testing are justifiable, considering the proliferation of illegal drugs where the youth and school- children usually end up as victims; and noted the provisions do not intend to criminally prosecute those found positive for illegal drugs, but to give them a chance to undergo rehabilitation.
The SC further said that employees’ privacy and dignity will not be compromised because based on the implementing rules and regulations of the health department, the drug- test result and the records will be kept confidential and access to the result will be on the “need to know basis.”
http://www.businessmirror.com.ph/index.php?option=com_content&view=article&catid=26:nation&id=1503:drug-tests-for-poll-bets-unconstitutional
SC rules drug test for candidates unconstitutional
By Mike Frialde Updated November 05, 2008 12:00 AM
The Supreme Court has ruled as unconstitutional sections of Republic Act 9165 or the Comprehensive Dangerous Drugs Act of 2002, which requires drug testing for candidates for national and local elective posts and those facing criminal charges punishable by more than six years imprisonment.
In its 25-page decision penned by Justice Presbitero Velasco, the SC struck down as unconstitutional Section 36(f) and Section 36(g) of RA 9165.
Section 36(g) requires all candidates for national and local positions to undergo a mandatory drug test while Section 36(f) mandates all persons charged before the prosecutor’s office with a criminal offense having a penalty of imprisonment of not less than six years to undertake mandatory drug test.
In its decision, the Court partially granted the consolidated petitions filed by Sen. Aquilino Pimentel Jr., the Social Justice Society (SJS) and lawyer Manuel Laserna Jr.
Pimentel, in his petition, sought the nullification of Section 36(g) of RA 9165 and Commission on Elections Resolution 6486 issued on Dec. 23, 2003 that prescribes the rules and regulations on the mandatory drug testing of candidates.
The senator, who ran for re-election in the May 10, 2004 elections, argued that the provision and Comelec resolution should be nullified since they impose another qualification for senatorial candidates in addition to those already provided for in the 1987 Constitution.
Pimentel said under Article VI Section 3 of the Constitution, candidates should only meet the qualifications of citizenship, voter registration, literacy, age, and residency.
In granting Pimentel’s petition, the SC noted that Section 36(g) of RA 9165 and Comelec Resolution 6486 add another qualification layer to what the 1987 Constitution requires.
The SC has stressed that Congress cannot enact laws which violate the provisions of the Constitution.
“It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution,” the SC said.
The Court added that if Congress has no power to impose additional qualifications for election candidates, the same could also be said for Comelec.
“The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution,” the Court said.
The Court, however, affirmed the constitutionality of Section 36(c) of RA 9165, which requires students of secondary and tertiary schools to undergo random drug testing.
The Court also upheld the legality of Section 36 (d) of the same law which requires officers and employees of public and private offices, whether domestic or overseas, to undergo a random drug test.
In their petitions, the SJS and Laserna asked the Court to prohibit the Dangerous Drugs Board and Philippine Drug Enforcement Agency (PDEA) from enforcing Sections 36 (c), (d), (f) and (g) of RA 9165 for being constitutionally infirm.
They stressed that these provisions constitute undue delegation of legislative power when they give schools and employers sole discretion to determine the manner of drug testing.
The petitioners added that the random drug test can be used to harass a student or an employee and violates a person’s constitutional right against unreasonable searches.
Likewise, the petitioners claimed that the provisions infringed on the constitutional right to privacy, the right against self-incrimination, and are contrary to due process and equal protection guarantees.
According to the Court, Sections 36 (c) and (f) of RA 9165 are justifiable considering the proliferation of illegal drugs where the youth and school children usually end up as victims.
The SC noted that the provision does not intend to criminally prosecute those found positive for illegal drugs but to give them a chance to undergo rehabilitation.
“The Court is of the view and so holds that the provisions of RA 9165 requiring mandatory and random 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,” the SC said.
The Court also said that the privacy and dignity of the employees would not be compromised during the drug test, as trained professionals in access-controlled laboratories monitored by the Department of Health to prevent tampering will handle this.
Based on the implementing rules and regulations of the DOH, the drug test result and the records shall be kept confidential and access to the result shall be on the “need to know basis.”
http://beta2.philstar.com/Article.aspx?ArticleId=412785&publicationSubCategoryId=63
Mandatory drug test for political candidates ‘unconstitutional’ - SC
11/04/2008 | 07:05 PM
MANILA, Philippines - The Supreme Court on Tuesday declared as unconstitutional a provision in the Comprehensive Dangerous Drugs Act of 2002 requiring mandatory drug testing to all candidates for public office and people facing criminal charges.
In a 23-page en banc decision, the SC likewise declared as unconstitutional Commission on Elections (Comelec) Resolution No. 6489, which implemented the drug testing among candidates
The SC said paragraph (g) of Section 36 of Republic Act 9165 violates the 1987 Constitution because it adds another qualification for senators as enumerated in Section 3, Article VI of the charter.
Section 36 of Republic Act 9165 states that, “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 35-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.”
In its decision, the high court said a citizen’s right to elect a public official “should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.”
“Whether or not the 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,” the SC said.
The case stemmed from the three petitions separately filed by the Social Justice Society (SJS), private lawyer Manuel Laserna, and Senator Aquilino Pimentel Jr against the Dangerous Drugs Board (DDB), the Philippine Drug Enforcement Agency (PDEA), and the Comelec.
The petitioners claimed that Sec. 36 of RA 9165 on authorized and mandatory drug testing for students, employees, candidates and those charged for crimes, is unconstitutional as it imposed a qualification for candidates in addition to those already provided for in the 1987 Constitution.
The assailed provision likewise stated that aside from penalties imposed for violation of this law, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of RA 9165.
The SC agreed with Pimentel’s arguments that the Constitution only prescribes this maximum of five qualifications for one to be a candidate for the Senate. It added that there is no provision in the constitution authorizing the Congress or Comelec to expand the qualification requirements of candidates for senator.
“The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade or weaken the force of a constitutional mandate, or alter or enlarge the Constitution,” the SC said.
The same decision however affirmed the validity of a provision mandating random and “suspicionless” drug tests for students in secondary and tertiary schools, as well as employees of public and private offices.
According to the Court, random drug testing for in high school and college and for employees, is “a kind of search in which a reasonable parent might need to engage” and that “minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians and schools.”
The court added that schools 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. - GMANews.TV
http://www.gmanews.tv/story/131313/Mandatory-drug-test-for-political-candidates-%E2%80%98unconstitutional%E2%80%99---SC
SC: Drug test for political bets unconstitutional
THE SUPREME COURT (SC) has struck down a drug test requirement for those seeking public office and those accused of crimes.
But it upheld the "random" and "suspicionless" drug testing on minor students and public and private employees.
In a 23-page decision, Associate Justice Presbitero J. Velasco, Jr., clarified section 36 of Republic Act 9165, or the Dangerous Drugs Act of 2002.
The provision required drug testing for students of secondary and tertiary schools, officers and employees of public and private offices, persons charged before the prosecutor’s office and candidates for public office.
Senator Aquilino Q. Pimentel, Jr., who ran in the May 2004 elections, said drug testing for political candidates was unconstitutional. The high court agreed.
Social Justice Society and lawyer Manuel J. Laserna questioned the drug testing for those accused of crimes, and for students and workers. This was an infringement on privacy, he added.
The high court however noted "in the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint."
This does not hold true for students and employees, it said, adding students are most vulnerable to the effects of drug use.
"The need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest..." the court said. — IPP
http://www.bworldonline.com/BW110508/content.php?id=076
The Supreme Court agreed with me that the random, suspicionless and mandatory drug tests required of elective candidates and of respondents facing criminal complaints before the Prosecutors with an imposable penalty of more than 6 years is unconstitutional. However, it disagreed with me insofar as students and workers are concerned.
The other petitioners were Sen. A. Pimentel and the Social Justice Society. Our petitions were consolidated. The ponente was Assoc. Justice P. Velasco.
Philippine dailies reported the SC decision on Nov. 5, 2008. I have summarized below the salient parts of my petition. I have also posted below the news items that carried the report.
Sec. 36 of R.A. No. 9165 imposes the requirement of mandatory, suspicionless and random drug tests nationwide among all high school and college students, all public and private officers, workers and employees, all local and national candidates for elective and appointive government positions, and all respondents facing preliminary investigations of the criminal complaints filed against them with an imposable penalty exceeding 6 years and 1 day.
My position was that the said provision was violative of the Filipino citizens’ constitutional right to privacy, right against unreasonable search and seizure and self-incrimination, and right to due process of law and equal protection of the laws.
The relevant portions of Sec. 36 of R.A. 9165 read:
(a) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school’s student handbook and with notice to parents, undergo a random drug testing; Provided, That all drug testing expenses whether in public or private schools under this Section will be borne by the government;
(b) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company’s work rules and regulations, which shall be borne by the employer, for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;
(c) All persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one day shall have to undergo a mandatory drug test; and
(d) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.
In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.”
Section 15 of R.A. No. 9165 provides:
“SEC. 15. – Use of Dangerous Drugs. - A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty Thousand Pesos (P50,000.00) to Two Hundred Thousand Pesos (P200,000.00); Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided under Section 11 of this Act, in which case the provisions therein shall apply.”
Under Sec. 36 of R.A. No. 9165, the following constitutional infirmities are evident:
1. High school and college students (the great bulk of whom are minors) shall undergo MANDATORY drug tests. It may be “random” (the adjective used in Sec. 36 [c]) but it is mandatory and compulsory. The provision merely requires “notice” to the parents, but not their “consent”, making its mandatory nature more evident. It appears that the implementing rules of Sec. 36 to be issued soon by the respondent DDB must be compulsorily included in the school’s student handbook (requiring mandatory amendments to the student handbook). Although Sec. 36 © is silent about it, it appears that a student found positive of use of dangerous drugs may be administratively expelled by the school authorities. (Sec. 36 [c], R.A. No. 9165). Aside from the said administrative sanction, there is the probability that they would be exposed to potential criminal proceedings under the law (Sec. 15, R.A. No. 1965).
2. Public and private workers, employees, and officers, whether domestic or overseas, shall likewise undergo MANDATORY drug tests. Again, it may be “random” (the adjective used in Sec. 36 [d]) but it is mandatory and compulsory. It appears that the implementing rules of Sec. 36 to be issued soon by the respondent DDB must be compulsorily included in the company’s work rules and regulations (requiring mandatory amendments to the company’s work rules and regulations). Sec. 36 (d) expressly provides that any officer or employee found positive for use of dangerous drugs may be administratively suspended or terminated from work subject to the provisions of Art. 282 of the Labor Code and the pertinent provisions of the Civil Service Law. (Sec. 36 [d], R.A. No. 9165). Aside from the said administrative sanction, there is the probability that they would be exposed to potential criminal proceedings under the law (Sec. 15, R.A. No. 1965).
3. All persons charged before the prosecutor’s office (that is, whose criminal cases are still undergoing preliminary investigation) with a criminal offense having an imposable penalty of not less than 6 years and 1 day shall undergo MANDATORY drug tests. (Sec. 36 [f], R.A. No. 9165). A citizen facing a preliminary investigation for a pending criminal complaint (whatever its nature or type might be) shall now be required to undergo a mandatory drug test, regardless of whether or not his pending case is related to dangerous drugs use and regardless of whether or not the result of such mandatory drug test is relevant or material to the pending criminal complaint against him. (Sec. 36 [g], R.A. No. 9165). Aside from their pending criminal complaints, there is the probability that they would be potentially exposed to additional criminal proceedings under the law (Sec. 15, R.A. No. 1965).
4. All candidates for public office whether appointive or elective both in the national of local government shall undergo a mandatory drug test. (Sec. 36, [g], R.A. No. 9165). The Constitution alone may provide for the qualifications of national elective and appointive officials, the constitutional officials of the land, and the members of the independent constitutional commissions, agencies and bodies. (As to the local elective and appointive officials and employees, Congress may provide for their qualifications, e.g., the Local Government Code, the Civil Service Law, the Revised Administrative Code, and other laws). R.A. No. 9165 in effect adds a new mandatory qualification for national elective officials, like the President, the Vice President, and the Senators, and other constitutional officials, such as the members of the Supreme Court, the Ombudsman, the members of the Judicial and Bar Council, and the members of the independent constitutional bodies, that is, they must all pass the mandatory drug tests under that law. It will be noted that constitutional officials may only be removed from office by IMPEACHMENT, and not by operation of R.A. No. 1965; and the specific procedures for their nomination and appointment are clearly spelled out in the Constitution (which R.A. No. 9165 may not amend). Finally, the public and private officials and employees would be exposed to other potential criminal cases arising from the mandatory drug tests.
5. The high school and college students, the public and private officials and employees, the respondents in criminal complaints undergoing preliminary investigations, and the local and national candidates (elective or appointive positions) would all be exposed to unreasonable search and their right to privacy violated by Sec. 36 of R.A. No. 9165.
Sec. 1 and Sec. 2, Art. III of the 1987 Constitution provide:
“Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”
“Sec. 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, xxxx.” (See also: Art. 32, Civil Code).
The right of privacy is both constitutional and statutory. (Sec. 3, Art. III, 1987 Constitution; Art. 26, Civil Code). Any evidence obtained in violation of a citizen’s right to privacy and right against unreasonable search and seizure shall be inadmissible for any purpose in any proceeding. (Sec. 3 [2], Art. III, id.).
The 1987 Constitution provides that no person may be compelled to be a witness against himself (Sec. 17, Art. III, 1987 Constitution). No person shall be held to answer for a criminal offense without due process of law. (Sec. 14, id.).
The provisions of Art. III of the 1987 Constitution have their roots in the Bill of Rights of the US Constitution. The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the schools and the workplaces. The US courts have been consistent in their rulings that mandatory drug tests violate a citizen’s constitutional right to privacy and right against unreasonable search and seizure. I cited various US cases in support of my legal theory.
Philippine Dailies’ News Items
on the Supreme Court Decision
Dated November 5, 2008.
SC strikes out drug tests for candidates
By Norman Bordadora
Philippine Daily Inquirer
First Posted 22:10:00 11/04/2008
MANILA, Philippines—The Supreme Court has struck down as unconstitutional provisions of the Dangerous Drugs Act that require drug tests for candidates for public office—whether elective or appointive, in local and national levels.
In an en banc decision on November 3, the Supreme Court also nullified the anti-drug legislation’s provision for mandatory drug testing for persons charged before the prosecutor’s office with a crime carrying a penalty of not less than six years.
The high tribunal has enjoined all concerned government agencies from implementing mandatory drug tests on candidates for public office and on persons charged with a crime carrying a penalty of not less than six years.
The court, however, upheld the mandatory drug test provisions for high school and college students and for officers and employees of public and private offices, subject to the school or company rules and regulations.
The decision, penned by Justice Presbiterio Velasco Jr., was made in connection with the petitions filed by Senator Aquilino Pimentel Jr., the Social Justice Society, and lawyer Manuel Laserna Jr. against the mandatory drug tests.
Pimentel, a senatorial candidate in the 2004 elections, sought in December 2003 to nullify the drug test for candidates, saying it was unconstitutional because “they impose a qualification for senators in addition to those already provided for in the 1987 Constitution.”
He also asked that the Commission on Elections be enjoined from implementing a resolution for the mandatory testing for candidates for elective positions based on the Dangerous Drugs Act.
He said the Constitution only required that candidates meet the qualifications on citizenship, voter registration, literacy, age and residency.
“Pimentel’s contention is well-taken. Accordingly, Section 36 (g) of RA 9165 should be, as it is hereby declared, as unconstitutional,” the high court said in its decision.
“It is basic that if a law or an administrative rule violates any norm of the Constitution, that the issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform,” it added.
The high tribunal also found “no valid justification for mandatory drug testing for persons accused of crimes.”
“The operative concepts in the mandatory drug testing are ‘randomness’ and ‘suspicionless.’ In the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless,” it said.
“The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint,” it added.
Aside from questioning the constitutionality of the mandatory drug tests for candidates and individuals charged with crimes, the SJS and lawyer Laserna also questioned the constitutionality of such tests on students and employees.
The Supreme Court, however, found the mandatory tests on students and employees constitutional.
http://newsinfo.inquirer.net/breakingnews/nation/view/20081104-170250/SC-strikes-out-drug-tests-for-candidates
PIA Press Release
2008/11/05
Drug testing for candidates unconstitutional, Supreme Court rules
Manila (5 November) -- Congress cannot enact laws which violates the provisions of the Constitution.
With this premise, the Supreme Court has ruled as unconstitutional sections of Republic Act 9165 or the Comprehensive Dangerous Drugs Act of 2002 which requires for drug testing of candidates both in the national and local posts.
The Supreme Court, in an en banc decision on November 3, declared as unconstitutional Section 36 (f) and Section 36 (g) of RA 9165.
The High Court also nullified the antidrug legislation's provision for mandatory drug testing for persons charged with a crime carrying a penalty of not less than six years.
Section 36(g) requires all candidates for national and local positions to undergo a mandatory drug test while Section 36(f) mandates all persons charged before the prosecutor's office with a criminal offense having a penalty of imprisonment of not less than six years to undertake mandatory drug test.
However, the Supreme Court upheld the mandatory drug test provision for high school and college students and for employees of both public and private offices, subject to the school or company rules and regulations.
The decision penned by Justice Presbitero Velasco Jr. was made in connection with the petitions filed by Sen. Aquilino Pimentel Jr., the Social Justice Society, and the lawyer Manuel Laserna Jr., against the mandatory drug tests.
Sen. Pimentel, in his petition, sought the nullification of Section 36(g) of RA 9165 and Commission on Elections Resolution 6486 issued on Dec. 23, 2003 that prescribes the rules and regulations on the mandatory drug testing of candidates.
The senator, who ran for re-election in the May 10, 2004 elections, argued that the provision and Comelec resolution should be nullified since they impose another qualification for senatorial candidates in addition to those already provided for in the 1987 Constitution.
Sen. Pimentel said under Article VI Section 3 of the Constitution, candidates should only meet the qualifications of citizenship, voter registration, literacy, age, and residency.
In granting Pimentel's petition, the Supreme Court noted that Section 36(g) of RA 9165 and Comelec Resolution 6486 add another qualification layer to what the 1987 Constitution requires. The Supreme Court stressed that Congress cannot enact laws which violate the provisions of the Constitution. (PIA 8) [top]
http://www.pia.gov.ph/?m=12&fi=p081105.htm&no=33
Drug tests for candidates illegal—high court
By Rey E. Requejo
THE Supreme Court struck down as unconstitutional the provision of the Dangerous Drugs Act of 2002 (Republic Act 9165) requiring mandatory drug testing for candidates for public office and those charged with a crime punishable with more than six years imprisonment.
But the 23-page decision written by Associate Justice Resbiterio Velasco Jr. upheld the constitutionality of random drug testing for secondary and tertiary level students as well as employees and officials of public and private offices.
Voting unanimously, the high tribunal partially granted the consolidated petitions filed by Senator Aquilino Pimentel Jr. against the Commission on Elections; the Social Justice Society against the Dangerous Drugs Board and Philippine Drug Enforcement Agency; and lawyer Manuel J. Laserna Jr. against the Dangerous Drug Board and PDEA.
In particular, Pimentel had sought to nullify Section 36 (g) of RA 9165 and Comelec Resolution 6486 issued on Dec. 23, 2003 that prescribed rules and regulations for mandatory drug testing for candidates.
The senator said this imposed an additional qualification apart from those already provided for in Section 3, Artivcle VI of the 1987 Constitution.
He said the Constitution explicitly states that candidates need only meet the qualifications such as citizenship, voter registration, literacy, age and residency.
SJS and Laserna, for their part, sought to restrain the DDB and PDEA from enforcing four provisions of Sections 36 as these were constitutionally infirm.
They claimed that these provisions provided undue delegation of legislative power when they give schools and employers sole discretion to determine the manner of drug testing.
They pointed out that the random drug testing can be used to harass a student or an employee, and violates a person’s constitutional right against unreasonable searches.
In granting Pimentel’s petition, the high tribunal said they agreed to the lawmaker’s argument this added another qualification layer and Congress cannot enact law which violates the provisions of the Constitution.
http://www.manilastandardtoday.com/?page=politics2_nov5_2008
SC upholds drug tests for students but not for poll bets
By REY G. PANALIGAN
In a precedent-setting decision, the Supreme Court (SC) has declared constitutional the provisions in the Comprehensive Dangerous Drugs Act of 2002 that require high school and college students, and officers and employees in public and private offices to undergo a mandatory, random, and suspicionless drug test.
But the SC, in a unanimous full court decision written by Justice Presbitero J. Velasco Jr., struck down as unconstitutional the provisions that require drug tests for candidates for public office in the national or local governments and those charged before the prosecutor’s office with a criminal offense.
With the ruling, the SC granted the petition filed by Sen. Aquilino Pimentel Jr. against the Comelec pertaining to Section 36(g) and partially granted the petitions filed by Social Justice Society and lawyer Manuel J. Laserna Jr. against the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) in connection with Section 36 (c, d, and f).
The Comelec, and the DDB and PDEA are barred from implementing Section 36 (g) and Section 36(f) of RA 9165, respectively.
Citing American jurisprudence, the SC said that "the court is of the view and so holds that the provisions of Republic Act No. 9165 (the Comprehensive Dangerous Drugs Act of 2002) 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," it said.
The SC took note of the proliferation of prohibited drugs in the country "that threatens the well-being of the people, particularly the youth and school children who usually end up as victims."
"Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected," it said.
"Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students," it added.
"Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Section 36 of RA 9165 for officers and employees of public and private offices is justifiable," the SC said.
"Section 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience."
It pointed out that "the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee’s privacy and dignity."
"In addition, the IRR issued by the Department of Health provides that access to the drug results shall be on the ‘need to know’ basis; that the drug test results and records shall be kept confidential subject to the usual accepted practices to protect the confidentiality… and notably, RA9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the law received as a result of the operation of the drug testing."
Thus, it said "the intrusion into the employee’s privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal."
But in the case of mandatory drug test for candidates for national and local elections, the SC said, "it is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect."
It said that Section 36(g) of RA 9165 imposes qualifications on candidates in addition to what the Constitution prescribes.
"If Congress cannot require a candidate for senator (or any other elective public office) to meet such additional qualification, the Commission on Elections (Comelec), to be sure, is also without such power," the SC said.
"It ought to be made abundantly clear, however, that the unconstitutionality of Section 36(g) of RA9165 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" (or an elective official), the SC said.
In the case of persons charged before the prosecutor’s office with a criminal offense, the SC said, "a mandatory drug testing can never be random or suspicionless."
"When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will," it said.
"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 objectives of RA 9165. Drug testing in this case would violate a person’s right to private guaranteed under Section 2, Article III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves," it added.
http://www.mb.com.ph/MAIN20081105139982.html
November 05, 2008 07:01 PM Wednesday
Poll bets no longer required to undergo drug test By: Hector Lawas
The Supreme Court struck down for being unconstitutional a provision of the Comprehensive Dangerous Drugs Act of 2002 requiring national and local candidates to undergo mandatory drug testing.
Section 36 (g) requires all candidates for national and local posts to be tested for drugs while Section (f) mandates all persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six years to undergo mandatory drug test.
In its 25-page en banc decision penned by Associate Justice Presbitero Velasco, Jr., the High Court partially granted the consolidated petitions filed by Sen. Aquilino Pimentel, Jr. against the Commission on Elections, the Social Justice Society versus the Dangerous Drugs Board and Philippine Drug Enforcement Agency and lawyer Manuel J. Laserna, Jr., versus the Dangerous Drug Board and Philippine Drug Enforcement Agency.
Pimentel, who ran for re-election in 2004, argued that the provision should be nullified since the Constitution already set qualifications for candidates.
The Supreme Court said Congress cannot enact a law which violates the provisions of the Constitution.
“It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid it if conflicts with the Constitution,” it added.
The Court said if Congress has no power to impose additional qualifications for election candidates, the same can also be said for Comelec.
“The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution,” the tribunal added.
http://www.journal.com.ph/index.php?issue=2008-11-05&sec=4&aid=77570
Drug tests for poll bets unconstitutional
Written by Joel R. San Juan / Reporter
Tuesday, 04 November 2008 23:26
MANDATORY drug tests for high- school and university students have been upheld as constitutional by the Supreme Court (SC), with the en banc voting unanimously for the legitimacy of Republic Act (RA) 9165, or the Comprehensive Dangerous Drugs Act of 2002.
The provision on students is in Section 36 (c) of RA 9165. The Court also upheld the legality of Section 36 (d) that requires officers and employees of public and private offices, whether domestic or overseas but operating in the country, to undergo random drug testing.
The Court struck down, however, as unconstitutional Sections 36 (f) and (g) of the law. Section (f) mandates all persons charged at the prosecutor’s office with a criminal offense with a penalty of at least six years to undergo mandatory drug testing; while Section (g) requires drug tests for all candidates for national and local offices.
The en banc decision, written by Associate Justice Presbitero Velasco Jr., was in response to the consolidated petitions filed by Sen. Aquilino Pimentel Jr. against the Commission on Elections (Comelec), the Social Justice Society (SJS) versus the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA), and lawyer Manuel Laserna Jr. versus the Dangerous Drug Board and PDEA.
Pimentel had focused on Section 36 (g) on and Comelec Resolution 6486 issued on December 23, 2003, prescribing the rules and regulations on the mandatory drug testing of candidates.
He urged the Court to nullify that provision and the Comelec resolution, arguing they impose an additional qualification for candidates, at least for senators, in addition to those listed in the Constitution—citizenship, voter registration, literacy, age and residency.
On the other hand, SJS and Laserna asked the Court to prohibit the DDB and PDEA from enforcing Sections 36 (c), (d), (f) and (g) for being constitutionally infirm, arguing they constitute undue delegation of legislative power when they give schools and employers sole discretion to determine the manner of drug testing. They said these can be used to harass students or employees and violate a person’s constitutional right against unreasonable searches.
On Pimentel’s petition, the Court agreed that Congress cannot enact a law that violates the Constitution. “The Constitution is the basic law to which all laws must conform; no act shall be valid it if conflicts with the Constitution.”
The Court said logically the same can also be said for the Comelec. “The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.”
The Court said, however, that the sections on student testing are justifiable, considering the proliferation of illegal drugs where the youth and school- children usually end up as victims; and noted the provisions do not intend to criminally prosecute those found positive for illegal drugs, but to give them a chance to undergo rehabilitation.
The SC further said that employees’ privacy and dignity will not be compromised because based on the implementing rules and regulations of the health department, the drug- test result and the records will be kept confidential and access to the result will be on the “need to know basis.”
http://www.businessmirror.com.ph/index.php?option=com_content&view=article&catid=26:nation&id=1503:drug-tests-for-poll-bets-unconstitutional
SC rules drug test for candidates unconstitutional
By Mike Frialde Updated November 05, 2008 12:00 AM
The Supreme Court has ruled as unconstitutional sections of Republic Act 9165 or the Comprehensive Dangerous Drugs Act of 2002, which requires drug testing for candidates for national and local elective posts and those facing criminal charges punishable by more than six years imprisonment.
In its 25-page decision penned by Justice Presbitero Velasco, the SC struck down as unconstitutional Section 36(f) and Section 36(g) of RA 9165.
Section 36(g) requires all candidates for national and local positions to undergo a mandatory drug test while Section 36(f) mandates all persons charged before the prosecutor’s office with a criminal offense having a penalty of imprisonment of not less than six years to undertake mandatory drug test.
In its decision, the Court partially granted the consolidated petitions filed by Sen. Aquilino Pimentel Jr., the Social Justice Society (SJS) and lawyer Manuel Laserna Jr.
Pimentel, in his petition, sought the nullification of Section 36(g) of RA 9165 and Commission on Elections Resolution 6486 issued on Dec. 23, 2003 that prescribes the rules and regulations on the mandatory drug testing of candidates.
The senator, who ran for re-election in the May 10, 2004 elections, argued that the provision and Comelec resolution should be nullified since they impose another qualification for senatorial candidates in addition to those already provided for in the 1987 Constitution.
Pimentel said under Article VI Section 3 of the Constitution, candidates should only meet the qualifications of citizenship, voter registration, literacy, age, and residency.
In granting Pimentel’s petition, the SC noted that Section 36(g) of RA 9165 and Comelec Resolution 6486 add another qualification layer to what the 1987 Constitution requires.
The SC has stressed that Congress cannot enact laws which violate the provisions of the Constitution.
“It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution,” the SC said.
The Court added that if Congress has no power to impose additional qualifications for election candidates, the same could also be said for Comelec.
“The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution,” the Court said.
The Court, however, affirmed the constitutionality of Section 36(c) of RA 9165, which requires students of secondary and tertiary schools to undergo random drug testing.
The Court also upheld the legality of Section 36 (d) of the same law which requires officers and employees of public and private offices, whether domestic or overseas, to undergo a random drug test.
In their petitions, the SJS and Laserna asked the Court to prohibit the Dangerous Drugs Board and Philippine Drug Enforcement Agency (PDEA) from enforcing Sections 36 (c), (d), (f) and (g) of RA 9165 for being constitutionally infirm.
They stressed that these provisions constitute undue delegation of legislative power when they give schools and employers sole discretion to determine the manner of drug testing.
The petitioners added that the random drug test can be used to harass a student or an employee and violates a person’s constitutional right against unreasonable searches.
Likewise, the petitioners claimed that the provisions infringed on the constitutional right to privacy, the right against self-incrimination, and are contrary to due process and equal protection guarantees.
According to the Court, Sections 36 (c) and (f) of RA 9165 are justifiable considering the proliferation of illegal drugs where the youth and school children usually end up as victims.
The SC noted that the provision does not intend to criminally prosecute those found positive for illegal drugs but to give them a chance to undergo rehabilitation.
“The Court is of the view and so holds that the provisions of RA 9165 requiring mandatory and random 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,” the SC said.
The Court also said that the privacy and dignity of the employees would not be compromised during the drug test, as trained professionals in access-controlled laboratories monitored by the Department of Health to prevent tampering will handle this.
Based on the implementing rules and regulations of the DOH, the drug test result and the records shall be kept confidential and access to the result shall be on the “need to know basis.”
http://beta2.philstar.com/Article.aspx?ArticleId=412785&publicationSubCategoryId=63
Mandatory drug test for political candidates ‘unconstitutional’ - SC
11/04/2008 | 07:05 PM
MANILA, Philippines - The Supreme Court on Tuesday declared as unconstitutional a provision in the Comprehensive Dangerous Drugs Act of 2002 requiring mandatory drug testing to all candidates for public office and people facing criminal charges.
In a 23-page en banc decision, the SC likewise declared as unconstitutional Commission on Elections (Comelec) Resolution No. 6489, which implemented the drug testing among candidates
The SC said paragraph (g) of Section 36 of Republic Act 9165 violates the 1987 Constitution because it adds another qualification for senators as enumerated in Section 3, Article VI of the charter.
Section 36 of Republic Act 9165 states that, “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 35-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.”
In its decision, the high court said a citizen’s right to elect a public official “should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.”
“Whether or not the 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,” the SC said.
The case stemmed from the three petitions separately filed by the Social Justice Society (SJS), private lawyer Manuel Laserna, and Senator Aquilino Pimentel Jr against the Dangerous Drugs Board (DDB), the Philippine Drug Enforcement Agency (PDEA), and the Comelec.
The petitioners claimed that Sec. 36 of RA 9165 on authorized and mandatory drug testing for students, employees, candidates and those charged for crimes, is unconstitutional as it imposed a qualification for candidates in addition to those already provided for in the 1987 Constitution.
The assailed provision likewise stated that aside from penalties imposed for violation of this law, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of RA 9165.
The SC agreed with Pimentel’s arguments that the Constitution only prescribes this maximum of five qualifications for one to be a candidate for the Senate. It added that there is no provision in the constitution authorizing the Congress or Comelec to expand the qualification requirements of candidates for senator.
“The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade or weaken the force of a constitutional mandate, or alter or enlarge the Constitution,” the SC said.
The same decision however affirmed the validity of a provision mandating random and “suspicionless” drug tests for students in secondary and tertiary schools, as well as employees of public and private offices.
According to the Court, random drug testing for in high school and college and for employees, is “a kind of search in which a reasonable parent might need to engage” and that “minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians and schools.”
The court added that schools 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. - GMANews.TV
http://www.gmanews.tv/story/131313/Mandatory-drug-test-for-political-candidates-%E2%80%98unconstitutional%E2%80%99---SC
SC: Drug test for political bets unconstitutional
THE SUPREME COURT (SC) has struck down a drug test requirement for those seeking public office and those accused of crimes.
But it upheld the "random" and "suspicionless" drug testing on minor students and public and private employees.
In a 23-page decision, Associate Justice Presbitero J. Velasco, Jr., clarified section 36 of Republic Act 9165, or the Dangerous Drugs Act of 2002.
The provision required drug testing for students of secondary and tertiary schools, officers and employees of public and private offices, persons charged before the prosecutor’s office and candidates for public office.
Senator Aquilino Q. Pimentel, Jr., who ran in the May 2004 elections, said drug testing for political candidates was unconstitutional. The high court agreed.
Social Justice Society and lawyer Manuel J. Laserna questioned the drug testing for those accused of crimes, and for students and workers. This was an infringement on privacy, he added.
The high court however noted "in the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint."
This does not hold true for students and employees, it said, adding students are most vulnerable to the effects of drug use.
"The need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest..." the court said. — IPP
http://www.bworldonline.com/BW110508/content.php?id=076
Monday, November 3, 2008
Outside the courtroom
Since the Simpson murder case years back, the issue of lawyers speaking out outside the courtroom has been a nagging question that continues to bother the Bench and the Bar in the United States (and other countries) to this very day.
It seems that despite the increasing concern about lawyers speaking about their cases outside the courtroom and the so-called gag orders prohibiting lawyers from commenting publicly about their cases, many believe that there are strong reasons to go very slowly when making inroads of any kind on free speech.
Many lawyers believe that despite the unpleasantness, discomfort, and harm that unrestrained speech causes, freedom to speak remains a powerful and irreplaceable engine for the protection and enhancement of the values of democracy.
Under the First Amendment, lawyers’ speech should be protected. The test under the said constitutional provision requires clear and convincing proof that a statement is false and was made maliciously or with reckless disregard for its truth.
The situation seems to be that although there has been no general assault on lawyers’ speech, restraint has been imposed or urged by the courts, the public and the Bar.
When a case is high profile, it is seen as significant by the public and the Press. There is an explosion of interest in law and the legal process on the part of the public. It is seems to be fed by insatiable appetite of the media to attract an audience and advertisers.
It is recognized that speech does not have to be worthy in itself to be protected by the First Amendment.
There is a difference between “public interest” and the “public’s interest”. The latter seems to drive the media more than public interest. To the commercialized Media, the “public’s interest” means profit.
One hypothesis is that lawyers should be allowed to speak about their cases without restraint because in doing so they fulfill the role that society assigns to them as their clients’ representatives.
The problem is that a lawyer’s out-of-court statements may have an effect on the jury or the judge. The statements may tilt the jury or judge to view his client’s side of the case sympathetically.
Because it is fundamental to a democratic legal process that a jury or a judge must decide only on the basis of evidence presented in court, some assert the controversial view that a lawyer’s efforts to defend his client outside the courtroom may be necessary to counteract prejudice against his client, which is attributed to an extra-judicial source. They believe that so long as both sides do it, everything is alright, because it is impossible to prevent leaks and adverse publicity anyway.
Is it proper for a lawyer to leave the courtroom to abandon all the evidentiary rules and rules of advocacy and to say anything that he was not allowed to say in court?
This is a bothersome issue. The negative answer is obvious.
There are those who believe that speaking out in public will cause judges to be more careful and fair.
This may not be a tenable idea because there are remedial and evidentiary procedures to ensure that a judge does not act carelessly or unfairly, because always have the right to object during the trial, and because judges who abuse their authority face reversal or reprimands from higher courts.
It is not a wise idea to put pressure on the judge by the belief that the lawyer’s public comments may lead the judge to be more careful and fair (from the lawyer’s or his client’s point of view).
There are those who believe that in some cases a lawyer may need to speak out to protect his client’s reputation, especially when investigators unfairly provide the Press with leaks prejudicial to hic client.
They feel that speaking out may help to turn up vital evidence or witnesses, thus, it may assist the search for truth.
But it seems rarely to be the case, considering that in most instances the speech is intended by the lawyer or a spokesman to defend one’s legal claim or position rather than seek hidden witnesses and evidence.
There is the belief that pressing one’s client’s case in the media may encourage a settlement and avoid a trial, to the benefit of all. But the question is if there are indeed grounds for a settlement, one must to present them only to the opposing lawyer, not to the public or the Press.
Many feel that resort to the media to encourage a settlement is likely to mean threatening to expose or embarrass one’s opponent unless he settles. If that is what displaces a trial on the merits, “the likely effect is not public benefit but the encouragement of corrosive cynicism and contempt for law as a substitute for naked power”.
Further, some believe that since a case may be a means of changing an unjust law, which the Press can widely expose, lawyers must be allowed to talk to the Press to defend his case outside the courtroom. However, the problem is that the first concern of a lawyer is the interest of his client, in which case, “the likelihood that a lawyer will add to public comprehension, rather than obscure the general issue or distort it to serve his client’s need, is small”.
In sum, there are grave ethical issues involved “when lawyers conduct their cases in two forums: in court, and then, according to completely different rules, on the courthouse steps and through the Press”.
What seems to be clear, though, is that “rights are accompanied by responsibilities”. To say that a person has a right to do something is “not to say that she ought to do it”. Rather, it is to say that it is up to her – it is her responsibility – to decide whether to do it or not.
The current observation is that 30 years ago in the USA, “it was unthinkable that a reputable lawyer would speak out to the press during the progress of a trial, in the manner that has now become routine”, not because she had not the right to do so but because it was understood that such conduct was not responsible and professional.
Concerned sectors may not be blamed for believing that lawyers play to the public when they respond to the blandishments and pressures of the media. People are worried when trial in court becomes secondary and trial by publicity becomes the main event.
The “everyone does it, so it’s alright” attitude is harmful because legal proceedings become “an entertainment, a sideshow that no one takes seriously”.
The very speech that is protected is cheapened. The legal profession is tarnished. Lawyers become hucksters. The client is tarnished because he is sold to a disbelieving public like a bar of soap.
In such a scenario, the legal process will lose credibility.
I agree with the belief of many legal philosophers that “no system of justice, no legal process, can command respect if it carries no weight beyond the four walls of the courtroom”.
Freedom of speech goes hand in hand with responsibility. If it becomes all, if responsibility is forgotten, one must question the content of the right itself.
A right without responsibility is worth little. It is merely power.
It seems that despite the increasing concern about lawyers speaking about their cases outside the courtroom and the so-called gag orders prohibiting lawyers from commenting publicly about their cases, many believe that there are strong reasons to go very slowly when making inroads of any kind on free speech.
Many lawyers believe that despite the unpleasantness, discomfort, and harm that unrestrained speech causes, freedom to speak remains a powerful and irreplaceable engine for the protection and enhancement of the values of democracy.
Under the First Amendment, lawyers’ speech should be protected. The test under the said constitutional provision requires clear and convincing proof that a statement is false and was made maliciously or with reckless disregard for its truth.
The situation seems to be that although there has been no general assault on lawyers’ speech, restraint has been imposed or urged by the courts, the public and the Bar.
When a case is high profile, it is seen as significant by the public and the Press. There is an explosion of interest in law and the legal process on the part of the public. It is seems to be fed by insatiable appetite of the media to attract an audience and advertisers.
It is recognized that speech does not have to be worthy in itself to be protected by the First Amendment.
There is a difference between “public interest” and the “public’s interest”. The latter seems to drive the media more than public interest. To the commercialized Media, the “public’s interest” means profit.
One hypothesis is that lawyers should be allowed to speak about their cases without restraint because in doing so they fulfill the role that society assigns to them as their clients’ representatives.
The problem is that a lawyer’s out-of-court statements may have an effect on the jury or the judge. The statements may tilt the jury or judge to view his client’s side of the case sympathetically.
Because it is fundamental to a democratic legal process that a jury or a judge must decide only on the basis of evidence presented in court, some assert the controversial view that a lawyer’s efforts to defend his client outside the courtroom may be necessary to counteract prejudice against his client, which is attributed to an extra-judicial source. They believe that so long as both sides do it, everything is alright, because it is impossible to prevent leaks and adverse publicity anyway.
Is it proper for a lawyer to leave the courtroom to abandon all the evidentiary rules and rules of advocacy and to say anything that he was not allowed to say in court?
This is a bothersome issue. The negative answer is obvious.
There are those who believe that speaking out in public will cause judges to be more careful and fair.
This may not be a tenable idea because there are remedial and evidentiary procedures to ensure that a judge does not act carelessly or unfairly, because always have the right to object during the trial, and because judges who abuse their authority face reversal or reprimands from higher courts.
It is not a wise idea to put pressure on the judge by the belief that the lawyer’s public comments may lead the judge to be more careful and fair (from the lawyer’s or his client’s point of view).
There are those who believe that in some cases a lawyer may need to speak out to protect his client’s reputation, especially when investigators unfairly provide the Press with leaks prejudicial to hic client.
They feel that speaking out may help to turn up vital evidence or witnesses, thus, it may assist the search for truth.
But it seems rarely to be the case, considering that in most instances the speech is intended by the lawyer or a spokesman to defend one’s legal claim or position rather than seek hidden witnesses and evidence.
There is the belief that pressing one’s client’s case in the media may encourage a settlement and avoid a trial, to the benefit of all. But the question is if there are indeed grounds for a settlement, one must to present them only to the opposing lawyer, not to the public or the Press.
Many feel that resort to the media to encourage a settlement is likely to mean threatening to expose or embarrass one’s opponent unless he settles. If that is what displaces a trial on the merits, “the likely effect is not public benefit but the encouragement of corrosive cynicism and contempt for law as a substitute for naked power”.
Further, some believe that since a case may be a means of changing an unjust law, which the Press can widely expose, lawyers must be allowed to talk to the Press to defend his case outside the courtroom. However, the problem is that the first concern of a lawyer is the interest of his client, in which case, “the likelihood that a lawyer will add to public comprehension, rather than obscure the general issue or distort it to serve his client’s need, is small”.
In sum, there are grave ethical issues involved “when lawyers conduct their cases in two forums: in court, and then, according to completely different rules, on the courthouse steps and through the Press”.
What seems to be clear, though, is that “rights are accompanied by responsibilities”. To say that a person has a right to do something is “not to say that she ought to do it”. Rather, it is to say that it is up to her – it is her responsibility – to decide whether to do it or not.
The current observation is that 30 years ago in the USA, “it was unthinkable that a reputable lawyer would speak out to the press during the progress of a trial, in the manner that has now become routine”, not because she had not the right to do so but because it was understood that such conduct was not responsible and professional.
Concerned sectors may not be blamed for believing that lawyers play to the public when they respond to the blandishments and pressures of the media. People are worried when trial in court becomes secondary and trial by publicity becomes the main event.
The “everyone does it, so it’s alright” attitude is harmful because legal proceedings become “an entertainment, a sideshow that no one takes seriously”.
The very speech that is protected is cheapened. The legal profession is tarnished. Lawyers become hucksters. The client is tarnished because he is sold to a disbelieving public like a bar of soap.
In such a scenario, the legal process will lose credibility.
I agree with the belief of many legal philosophers that “no system of justice, no legal process, can command respect if it carries no weight beyond the four walls of the courtroom”.
Freedom of speech goes hand in hand with responsibility. If it becomes all, if responsibility is forgotten, one must question the content of the right itself.
A right without responsibility is worth little. It is merely power.
Gandhi
I wish to share words of wisdom from Mahatma Gandhi, a great human rights lawyer whose practice of the doctrine non-violence led to the post-War independence of India. Thus:
Hatred ever kills. Love never dies. Such is the vast difference between the two. What is obtained by love is retained for all time. What is obtained by hatred proves a burden in reality for it increases hatred.
There are times when you have to obey a call which is the highest of all, i.e. the voice of conscience even though such obedience may cost many a bitter tear, and even more, separation from friends, from family, from the state to which you may belong, from all that you have held as dear as life itself. For this obedience is the law of our being.
Insistence on truth can come into play when one party practises untruth or injustice. Only then can love be tested. True friendship is put to the test only when one party disregards the obligation of friendship.
It may be long before the law of love will be recognized in international affairs. The machineries of government stand between and hide the hearts of one people from those of another.
Non-cooperation is an attempt to awaken the masses to a sense of their dignity and power. This can only be done by enabling them to realize that they need not fear brute force, if they would but know the soul within.
To forgive is not to forget. The merit lies in loving in spite of the vivid knowledge that the one that must be loved is not a friend. There is no merit in loving an enemy when you forget him for a friend.
The moment there is suspicion about a person's motives, everything he does becomes tainted.
An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody will see it.
Even as wisdom often comes from the mouths of babes, so does it often come from the mouths of old people. The golden rule is to test everything in the light of reason and experience, no matter from where it comes.
You must be the change you wish to see in the world.
Non-cooperation is directed not against men but against measures. It is not directed against the Governors, but against the system they administer. The roots of non-cooperation lie not in hatred but in justice, if not in love.
Abstract truth has no value unless it incarnates in human beings who represent it, by proving their readiness to die for it.
There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.
Intolerance is itself a form of violence and an obstacle to the growth of a true democratic spirit.
The only virtue I want to claim is truth and non-violence. I lay no claim to superhuman powers. I want none. I wear the same corruptible flesh that the weakest of my fellow beings wears, and am therefore as liable to err as any. My services have many limitations, but God has up to now blessed them in spite of the imperfections.
If we want to cultivate a true spirit of democracy we cannot afford to be intolerant. Intolerance betrays want of faith in one's cause.
Violent means will give violent freedom. That would be a menace to the world and to India herself.
Experience convinces me that permanent good can never be the outcome of untruth and violence. Even if my belief is a fond delusion, it will be admitted that it is a fascinating delusion.
I do not want to foresee the future. I am concerned with taking care of the present. God has given me no control over the moment following.
It is better to stand erect with a broken and bandaged head then to crawl on one's belly in order to be able to save one's head.
Imitation is the sincerest flattery.
Let no one charge me with ever having abused or encouraged weakness or surrendered on matters of principle. But I have said, as I say again, that every trifle must not be dignified into a principle.
Moral authority is never retained by any attempt to hold on to it. It comes without seeking and is retained without effort.
Self-respect knows no considerations.
Power is of two kinds. One is obtained by the fear of punishment and the other by acts of love. Power based on love is a thousand times more effective and permanent then the one derived from fear of punishment.
There is no principle worth the name if it is not wholly good.
I claim to be a simple individual liable to err like any other fellow mortal. I claim, however, that I have humility enough to confess my errors and to retrace my steps.
Truth is by nature self-evident. As soon as you remove the cobwebs of ignorance that surround it, it shines clear.
Morality is the basis of things and truth is the substance of all morality.
There will have to be rigid and iron discipline before we achieve anything great and enduring. That discipline will not come by mere academic argument and appeal to reason and logic. Discipline is learnt in the school of adversity
Constant development is the law of life. A man who always tries to maintain his dogmas in order to appear consistent drives himself into a false position.
Commonsense is the realized sense of proportion.
It would conduce to national progress and save a great deal of time and trouble if we cultivated the habit of never supporting resolutions by speaking or voting for them if we had not either the intention or the ability to carry them out.
Breach of promise is a base surrender of truth.
We may have our private opinions but why should they be a bar to the meeting of hearts?
There should be truth in thought, truth in speech, and truth in action. To the man who has realized this truth in perfection, nothing else remains to be known because all knowledge is necessarily included in it.
An ounce of practice is worth more then tons of preaching.
Courage has never been known to be a matter of muscle; it is a matter of the heart. The toughest muscle has been known to tremble before an imaginary fear. It was the heart that set the muscle atrembling.
When restraint and courtesy are added to strength, the latter becomes irresistible.
Everyone who wills can hear the inner voice. It is within everyone.
The greater the institution, the greater the chances of abuse. Democracy is a great institution and therefore it is liable to be greatly abused. The remedy therefore is not avoidance of democracy but reduction of the possibility of abuse to a minimum.
To deprive a man of his natural liberty and to deny to him the ordinary amenities of life is worse then starving the body; it is starvation of the soul.
Non-violence is the greatest force at the disposal of mankind. It is mightier than the mightiest weapon of destruction devised by the ingenuity of man.
Destruction is not the law of humans. Man lives freely only by his readiness to die, if need be, at the hands of his brother, never by killing him.
Every murder or other injury, no matter for what cause, committed or inflicted on another is a crime against humanity.
The main purpose of life is to live rightly, think rightly, act rightly. The soul must languish when we give all our thought to the body.
Freedom is never dear at any price. It is the breath of life. What would a man not pay for living ?
The hardest metal yields to sufficient heat. Even so must the hardest heart melt before sufficiency of the heat of non- violence. And there is no limit to the capacity of non-violence to generate heat.
Rights accrue automatically to him who duly performs his duties. In fact the right to perform one's duties is the only right that is worth living for and dying for. It covers all legitimate rights.
It is unwise to be too sure of one's own wisdom. It is healthy to be reminded that the strongest might weaken and the wisest might err.
Morality is rooted in the purity of our hearts.
An opponent is entitled to the same regard for his principles as we would expect others to have for ours. Non-violence demands that we should seek every opportunity to win over opponents.
Power invariably elects to go into the hands of the strong. That strength may be physical or of the heart or of the spirit. Strength of the heart connotes soul-force. Let it be remembered that physical force is transitory, even as the body is transitory. But the power of the spirit is permanent even as the spirit is everlasting.
Truth quenches untruth, love quenches anger, self-suffering quenches violence. This eternal rule is a rule not for saints only but for all.
We do not need to proselytize either by our speech or by our writing. We can only do so really with our lives. Let our lives be open books for all to study.
Hatred ever kills. Love never dies. Such is the vast difference between the two. What is obtained by love is retained for all time. What is obtained by hatred proves a burden in reality for it increases hatred.
There are times when you have to obey a call which is the highest of all, i.e. the voice of conscience even though such obedience may cost many a bitter tear, and even more, separation from friends, from family, from the state to which you may belong, from all that you have held as dear as life itself. For this obedience is the law of our being.
Insistence on truth can come into play when one party practises untruth or injustice. Only then can love be tested. True friendship is put to the test only when one party disregards the obligation of friendship.
It may be long before the law of love will be recognized in international affairs. The machineries of government stand between and hide the hearts of one people from those of another.
Non-cooperation is an attempt to awaken the masses to a sense of their dignity and power. This can only be done by enabling them to realize that they need not fear brute force, if they would but know the soul within.
To forgive is not to forget. The merit lies in loving in spite of the vivid knowledge that the one that must be loved is not a friend. There is no merit in loving an enemy when you forget him for a friend.
The moment there is suspicion about a person's motives, everything he does becomes tainted.
An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody will see it.
Even as wisdom often comes from the mouths of babes, so does it often come from the mouths of old people. The golden rule is to test everything in the light of reason and experience, no matter from where it comes.
You must be the change you wish to see in the world.
Non-cooperation is directed not against men but against measures. It is not directed against the Governors, but against the system they administer. The roots of non-cooperation lie not in hatred but in justice, if not in love.
Abstract truth has no value unless it incarnates in human beings who represent it, by proving their readiness to die for it.
There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.
Intolerance is itself a form of violence and an obstacle to the growth of a true democratic spirit.
The only virtue I want to claim is truth and non-violence. I lay no claim to superhuman powers. I want none. I wear the same corruptible flesh that the weakest of my fellow beings wears, and am therefore as liable to err as any. My services have many limitations, but God has up to now blessed them in spite of the imperfections.
If we want to cultivate a true spirit of democracy we cannot afford to be intolerant. Intolerance betrays want of faith in one's cause.
Violent means will give violent freedom. That would be a menace to the world and to India herself.
Experience convinces me that permanent good can never be the outcome of untruth and violence. Even if my belief is a fond delusion, it will be admitted that it is a fascinating delusion.
I do not want to foresee the future. I am concerned with taking care of the present. God has given me no control over the moment following.
It is better to stand erect with a broken and bandaged head then to crawl on one's belly in order to be able to save one's head.
Imitation is the sincerest flattery.
Let no one charge me with ever having abused or encouraged weakness or surrendered on matters of principle. But I have said, as I say again, that every trifle must not be dignified into a principle.
Moral authority is never retained by any attempt to hold on to it. It comes without seeking and is retained without effort.
Self-respect knows no considerations.
Power is of two kinds. One is obtained by the fear of punishment and the other by acts of love. Power based on love is a thousand times more effective and permanent then the one derived from fear of punishment.
There is no principle worth the name if it is not wholly good.
I claim to be a simple individual liable to err like any other fellow mortal. I claim, however, that I have humility enough to confess my errors and to retrace my steps.
Truth is by nature self-evident. As soon as you remove the cobwebs of ignorance that surround it, it shines clear.
Morality is the basis of things and truth is the substance of all morality.
There will have to be rigid and iron discipline before we achieve anything great and enduring. That discipline will not come by mere academic argument and appeal to reason and logic. Discipline is learnt in the school of adversity
Constant development is the law of life. A man who always tries to maintain his dogmas in order to appear consistent drives himself into a false position.
Commonsense is the realized sense of proportion.
It would conduce to national progress and save a great deal of time and trouble if we cultivated the habit of never supporting resolutions by speaking or voting for them if we had not either the intention or the ability to carry them out.
Breach of promise is a base surrender of truth.
We may have our private opinions but why should they be a bar to the meeting of hearts?
There should be truth in thought, truth in speech, and truth in action. To the man who has realized this truth in perfection, nothing else remains to be known because all knowledge is necessarily included in it.
An ounce of practice is worth more then tons of preaching.
Courage has never been known to be a matter of muscle; it is a matter of the heart. The toughest muscle has been known to tremble before an imaginary fear. It was the heart that set the muscle atrembling.
When restraint and courtesy are added to strength, the latter becomes irresistible.
Everyone who wills can hear the inner voice. It is within everyone.
The greater the institution, the greater the chances of abuse. Democracy is a great institution and therefore it is liable to be greatly abused. The remedy therefore is not avoidance of democracy but reduction of the possibility of abuse to a minimum.
To deprive a man of his natural liberty and to deny to him the ordinary amenities of life is worse then starving the body; it is starvation of the soul.
Non-violence is the greatest force at the disposal of mankind. It is mightier than the mightiest weapon of destruction devised by the ingenuity of man.
Destruction is not the law of humans. Man lives freely only by his readiness to die, if need be, at the hands of his brother, never by killing him.
Every murder or other injury, no matter for what cause, committed or inflicted on another is a crime against humanity.
The main purpose of life is to live rightly, think rightly, act rightly. The soul must languish when we give all our thought to the body.
Freedom is never dear at any price. It is the breath of life. What would a man not pay for living ?
The hardest metal yields to sufficient heat. Even so must the hardest heart melt before sufficiency of the heat of non- violence. And there is no limit to the capacity of non-violence to generate heat.
Rights accrue automatically to him who duly performs his duties. In fact the right to perform one's duties is the only right that is worth living for and dying for. It covers all legitimate rights.
It is unwise to be too sure of one's own wisdom. It is healthy to be reminded that the strongest might weaken and the wisest might err.
Morality is rooted in the purity of our hearts.
An opponent is entitled to the same regard for his principles as we would expect others to have for ours. Non-violence demands that we should seek every opportunity to win over opponents.
Power invariably elects to go into the hands of the strong. That strength may be physical or of the heart or of the spirit. Strength of the heart connotes soul-force. Let it be remembered that physical force is transitory, even as the body is transitory. But the power of the spirit is permanent even as the spirit is everlasting.
Truth quenches untruth, love quenches anger, self-suffering quenches violence. This eternal rule is a rule not for saints only but for all.
We do not need to proselytize either by our speech or by our writing. We can only do so really with our lives. Let our lives be open books for all to study.
Unhappy
A few years back I read an article written by law researchers E. P. Martin, P. Seligman, Paul R. Verkuil, and Terry H. Kang, entitled “Why Lawyers Are Unhappy.” I wish to recall its salient points for the benefit of lawyers visiting this blog.
Much attention has been paid recently to the disillusionment among lawyers, especially young associates’ “quality of life.” Many bright attorneys grow disillusioned and cynical, with diminishing career opportunities.
Unhappy associates fail to achieve their full potential at a cost to them, their firms, their clients, and even their families. Invariably many lawyers leave the law firm, and some the practice of law, prematurely, resulting in undesirable turnover, and a loss of talent to the profession.
The hypotheses of the authors suggested that much of the unhappiness of lawyers, which, by the way, is curable, stemmed from three causes:
(1) Lawyers are selected for their pessimism (or “prudence”) and this generalizes to the rest of their lives;
(2) Young associates hold jobs that are characterized by high pressure and low decision latitude, exactly the conditions that promote poor health and poor morale; and
(3) Law is to some extent a zero-sum game, and negative emotions flow from zero-sum games.
There is little doubt that “a dysfunctional legal profession will have a negative effect on the law itself”.
Since lawyers are members of a “public profession,” their dysfunction entails societal, as well as personal, costs. Indeed, the creation of law itself is in one sense bound up with the health of judges, lawyers, legislators, and academicians.
The authors theorized that the new field of “positive psychology” (which seeks to cultivate human strengths, rather than focus on human weaknesses), offers coping strategies to reduce unhappiness, and can be adapted successfully to the legal setting, in particular the large law firm.
One of the triggers for combating demoralization involves the avoidance of “zero-sum situations”. In law, such situations seem inevitable; they lie at the heart of our adversarial system of justice. If we accept that the “adversary model” embraces important social values, displacing it may not be in our interest. If so, some degree of lawyer unhappiness may be unavoidable if we are to achieve societal goals.
This raises the ironic possibility that “lawyers can be made happier only at public expense”. It also may be why lawyers have long been “known for their saturnine personalities.”
The authors stated that their prescriptions have to account for “the connection between the goals of the legal system and the nature of its practitioners”. They believe that steps can be taken to improve the lives of lawyers.
Even assuming “lawyer pessimism has a social purpose”, recognition of that fact may well facilitate deeper understanding by lawyers of their role in society. Even “exercises in introspection can help to improve the quality of a lawyer’s life.”
Practitioners have increasingly acknowledged that “law is a profession in crisis”, and the crisis they speak of relates to the “widespread disenchantment among even the most talented lawyers.”
According to the authors, among practitioners responding to a 1992 poll, 52 percent described themselves as dissatisfied, and many are retiring early or leaving the profession altogether.
In many cases, “the problem is not financial”. Associates at top firms can earn (with bonuses) up to $200,000 per year in their first year of practice.
In the last decade, lawyers have surpassed doctors as the highest-paid professionals.
But financial recognition may just be “a symptom of the problem”. The recent pay increases at large law firms are themselves “partially caused by lawyer dissatisfaction”.
The euphemistic “retention bonuses” are awarded to ensure that young associates “extend their service beyond two or three years”. Combating this desire to leave early is among law firms’ highest priorities, since they can only “recoup their investment in new lawyers over a longer period of time”.
The authors stated that in addition to being disenchanted, lawyers are “in remarkably poor health.” They are at much greater risk than the general population for “depression, heart disease, alcoholism and illegal drug use”.
They cited Johns Hopkins University study which found statistically significant elevations of major depressive disorder (“MDD”) in only three of 104 occupations surveyed. When adjusted for socio-demographic factors, lawyers topped the list, suffering from MDD at a rate 3.6 times higher than employed persons generally.
The studies confirm the hypothesis that “lawyer unhappiness can lead to serious health and social problems that pose a threat to the legal profession.”
Unhappy lawyers not only burden their families. Given their role in a public profession they can also “injure their clients by failing to provide adequate representation”. Unhappiness and depression are intimately associated with “passivity and poor productivity at work”. Lawyers who violate their clients’ interests often become disciplinary problems.
But formal recognition usually comes late in lawyers’ careers, after “a long period of unrecognized and unaddressed problematic behavior”. By that point, inadequate representation may already have caused “irreparable injuries to clients and the legal system”. The potential problems must be addressed “before they rise to the level of disciplinary offenses”.
Some law students have selected law because of their “pessimistic personalities” and so they are “at risk of depression when they become lawyers”. Law schools are themselves a “potential breeding ground for lawyer demoralization”.
Research in positive psychology suggests three principal causes of the
demoralization prevailing among lawyers:
(a) Pessimism,
(b) Low decision latitude, and
(c) The “zero-sum game” nature of the job.
“Pessimism” is a term emerging from a reformulation of “learned helplessness theory”, a theory first systematically articulated by researchers studying animal behavior.
Pessimism is defined not in the colloquial sense: “seeing the glass as half full or half empty” but rather, as a pessimistic “explanatory style.”
This is the tendency to interpret the causes of negative events in stable, global and internal ways: “It’s going to last forever; it’s going to undermine everything; it’s my own fault.” Under this definition, the pessimist will view bad events as unchangeable.
The optimist, in contrast, sees setbacks as temporary.
Research has revealed, predictably, that “pessimism is maladaptive in most endeavors”.
Pessimistic sales agents make fewer sales attempts, are less productive and persistent, and quit more readily than optimistic agents. Pessimistic undergraduates get lower grades.
Pessimistic swimmers have more sub-standard swims. Pessimistic world leaders take fewer risks and act more passively during political conflicts than their optimistic counterparts.
But while pessimists tend to be losers on many fronts, there is one striking exception: “pessimists may fare better in law”. Research reveals a “surprising correlation between pessimism and success in law school”.
In a 1987 study of Virginia law students, it was revealed that law students whose attributional style defined them as “pessimistic” actually fared better than their optimistic peers. Specifically, the pessimists outperformed more optimistic students on traditional measures of achievement, such as grade-point average and law journal success.
These data suggest that what is labeled as pessimism is “not a detriment and may even be a virtue for lawyers”.
Pessimism encompasses certain “positive” dimensions; it contains what we call - in less pejorative terms - “prudence.” A prudent perspective, which requires caution, skepticism and “reality appreciation,” may be an asset for law or other skill-based professions.
It is certainly a quality that is embraced in legal education. Prudence enables a good lawyer “to see snares and catastrophes” that might conceivably occur in any given transaction.
The “ability to anticipate a whole range of problems that non-lawyers do not see” is highly adaptive for the practicing lawyer. Indeed clients would be less effectively served if lawyers did not so behave, even though this ability to question occasionally leads to lawyers being labeled as “deal breakers or obstructionists”.
The qualities that make for “a good lawyer”, however, may not make for “a happy human being”. Pessimism is well-documented as “a major risk factor for unhappiness and depression”.
Lawyers cannot easily turn off their pessimism (i.e. prudence) when they leave the office. Lawyers who can see acutely how bad things might be for clients are also burdened with the tendency “to see how bad things might be for themselves”. Pessimists are more likely than optimists “to believe they will not make partner, that their profession is a racket, or that the economy is headed for disaster”. In this manner, pessimism that might be adaptive in the profession also “carries the risk of depression and anxiety in the lawyer’s personal life”.
The challenge is how to “remain prudent professionally” and yet “contain pessimistic tendencies in domains of life outside the office”.
A second psychological factor producing lawyer unhappiness is “low decision latitude”.
Decision latitude refers to the “number of choices one has or, as it turns out, one believes one has”. Workers in occupations that involve “little or no control” are at risk for depression and for poor physical health.
An important study of the “correlation of job conditions with depression and coronary disease” used two dimensions: (1) job demands and (2) decision latitude.
Beyond the “intense job demands of law practice”, low decision latitude is also a frequently cited problem. Associates often have “little voice or control over their work, only limited contact with their superiors, and virtually no client contact”. Instead, for at least the first few years of practice, many remain “cloistered and isolated in a library (or behind a computer screen), researching and drafting memos”.
In these high-pressure, low decision latitude positions, the associates are likely candidates for negative health effects, such as “higher rates of heart disease and for higher divorce rates”. These same associates are candidates for “early departure from law firms”. As such, they are often the object of “retention bonuses.” Not surprisingly, many young lawyers who do leave firms early choose “alternative legal careers”, such as legal aid or assistant district attorney, “where the pay is considerably lower but the decision latitude is considerably greater”.
There antidote for pessimism is optimism.
Optimism is the ability to dispute recurrent catastrophic thoughts effectively, and it can be learned.
“Flexible optimism” can be taught to both children and adults to enable them to determine how and in what situations one should use optimism and when to use pessimism.
The techniques of “learned optimism,” can teach lawyers to use optimism in their personal lives, yet maintain an adaptive pessimism in their professional lives.
Flexible optimism can be taught in a group setting such as law firms.
Learned optimism recommends that individuals employ a “disputing technique” to control their negative emotions.
In the disputing technique, the lawyer first learns to identify catastrophic thoughts she has, and the circumstances under which they occur. Then she learns to treat these thoughts as if they were uttered by a rival for her job, a third person whose mission is to make her life miserable. She then learns to “marshal evidence against the catastrophic thoughts”.
Credible disputing of pessimistic thinking is “self-maintaining because one feels better at the moment one does it”.
As to the high pressure-low decision latitude problem, there is a remedy as well. We accept that pressure is an inescapable aspect of law practice. But high pressure itself does not seem to be the problem; rather, it is the combination of high pressure and low decision latitude that causes negative health effects. By modifying this dimension, lawyers can become both more satisfied and more productive.
One solution is to tailor a lawyer’s day so there is considerably “more personal control over work”.
Antidotes to associate malaise include “more substantive training, mentoring, a voice in management, and earlier client contact”.
Research on the problem of decision latitude revealed that the “mere illusion of decision latitude has beneficial effects on morale”.
“Perceived control” can be just as effective an experimental condition as “actual control”. This means that “efforts to meet and communicate about problems” can have beneficial effects. Establishing a committee on associate morale, coupled with surveys and interviews of young associates, is one way to accomplish this result. But young lawyers are a highly skeptical group, and they are quick to challenge attempts at talk and no action.
A law firm can gain by learning more about associates’ strengths and employing that knowledge to help “shape the work environment”.
When a young lawyer enters a firm, he or she comes equipped not only with prudence and other lawyerly talents like high verbal intelligence, but with an additional set of unused signature strengths, such as “leadership, originality, fairness, enthusiasm, perseverance, and social intelligence”.
Law firms should discover the particular signature strengths of their associates. Exploiting them could make the difference between a demoralized associate and an energized, productive colleague.
A firm can produce higher morale by setting aside five to ten hours of the work week for “signature strength time,” (i.e., a non-routine assignment that uses the signature strengths). Over time, higher morale will translate into higher billing hours.
If an associate’s strengths include leadership he or she could be assigned to associate committee work; or if it is social intelligence, he or she could be exposed to clients at an earlier stage. Originality might send an associate to the library to search out a non-obvious theory to an intractable legal problem.
A zero-sum game is an endeavor in which “the net result is zero”. For every gain by one side, there is a counterbalancing loss by the other. A sports event is a zero-sum game, in that there must be winners and losers. A non-zero-sum game, in contrast, is an endeavor in which there is a net gain.
Negative emotions (i.e. anger, anxiety, and sadness) have evolved from zero-sum games, and that positive emotions have evolved from non-zero-sum games.
Historians argue that human civilization has reached its present state of social development by harnessing non-zero interactions, and that as humans continue to evolve, non-zero-sum games have become more numerous and elaborate, and have produced collective benefits to society.
Mutual profit can be achieved in zero-sum interactions if two problems are solved: “communication and trust”. If these conditions are obtained, stable, cooperative relationships emerge.
Much of the lawyer’s relationship to his client, the court and even fellow lawyers is premised on “established, norm-based commitments”. If these “core values of the profession can move in the direction of non-zero status”, the profession can also be benefited.
Positive emotions, such as joy, amusement and interest, are broadening; they build social and intellectual resources. By contrast, negative emotions narrow and restrict the social and cognitive environment.
The “adversary process”, which lies at the heart of the system of law, has long been viewed as a “classic zero-sum game”. In litigation, one side’s gain often moves in lockstep with the other side’s loss.
Lawyers are trained to be “aggressive and competitive” precisely because they “must win the litigation game”. This training, because it is fueled by negative emotions, can be a source of “lawyer demoralization”, even if it fulfills a “social function”.
One problem with the “adversarial paradigm” is that “the single-minded drive toward winning the competition will make young lawyers not only less useful citizens but also less good as lawyers, less sympathetic to other people’s troubles, and less valuable to their clients.”
When the practice of law is tied up with a large number of zero-sum games, it will produce predictable emotional consequences for the practitioner, who will be “anxious, angry and sad much of his professional life”.
The adversary model is “entrenched in the ethics of law”. The introduction of more non zero-sum situations, e.g., conciliation, mediation, and arbitration, decreases demoralization, but at the cost of our system of justice.
By understanding the values of the adversary system in terms of its zero-sum nature, we can assess alternatives that seek to “soften competition with cooperation”.
Modifications to our legal system must be justified both in terms of an individual’s well-being, and of our system of justice.
Social psychology has analyzed the adversary system from the standpoints of “fairness and satisfaction”. The adversarial system of justice leaves “more control in the parties (through their attorneys)”.
Since control has a salutary psychological effect, the adversary model is one expression of a “satisfactory political system”.
By placing control in the individual over the state, the adversary system reflects “deeper values of liberalism and even natural justice”.
In this way, the lawyer has a central role “as a public servant, a preserver of the values inherent in our political structure, even when he or she is seemingly only arguing for a client’s self-interest”.
The authors argue that “self-interest serves the public interest”.
The psychological question is “whether adversaries can be competitive without being pessimistic”.
The way adversariness is perceived by lawyers helps shape their character and encourages pessimistic behavior. Sometimes “competitiveness is unnecessarily combative”.
The lawyers’ code of ethics emphasizes “zealous” representation. But what does zealous representation add to competent representation?
Many have asked why the legal profession envisions litigation as war. The question is, can lawyers serve the adversary system without generating conflict on a personal level?
Civility need not weaken the lawyer’s commitment to the adversary system.
In fact, a growing number of law schools and law firms now recognize the importance of instilling civility and teaching team-building skills. Under this vision, it may be possible “to retain the virtues of adversariness while discarding some of its negative dimensions”.
The zero-sum effects of the adversary model, in terms of its “winner-take-all” mentality, usually occur where cases are tried to judgment—a small minority of cases. Where settlements occur, both sides frequently have made wise choices that allow them to claim victory.
Outside of litigation, non-zero expectations can play an even greater role. Most lawyers are not litigators; rather they are specialists in “normative ordering.” The notion of normative ordering suggests a role that fits the lawyer-statesman ideal. When lawyers assume these roles, cooperation challenges the virtue of competition.
While the authors accept the “social necessity for an adversary model”, with its zero-sum implications, they feel that the benefits of the adversary system can be expanded without zero-sum consequences. If litigation itself can be avoided, the client may still retain control over the outcome while increasing the probability of cooperative solutions.
The authors stated that choosing lawyers with reputations for cooperation can produce positive litigation outcomes. They see health and economic effects through cooperation because of its non-zero characteristics.
The combination of both effects has significant social promise. If the positive role of adversaries can be expanded, benefits would occur for society and the legal profession.
Finally, the authors noted that the zero-sum dimension was not the whole story in litigation. While the ends may often be zero-sum, the means can encompass non-zero dimensions.
As applied to the litigation context, iteration might help extend ideas of cooperation into the adversary process.
For example, “standstill agreements” between potential litigants are used to permit settlement discussions to proceed on a cooperative basis, without fear of having concessions used later in a courtroom.
Similarly, “mandatory mediation provisions” in contract disputes are designed to free up the parties to explore alternatives before litigation commences.
Law schools are both a source of the problem and a necessary part of the solution. The Socratic teaching method—employed especially in large, first-year classes—cultivates and encourages adversarial thinking by emphasizing zero-sum situations. The students’ adversarial skills are honed by withstanding questioning from skeptical interrogators.
In this respect, law school pedagogy differs from that of business schools, where cooperative projects and thinking are the rule in leading MBA programs. Moreover, competition for grades, among a group who self selects law for its pessimistic qualities, adds to the challenges.
There is a need for further study into the “relationships among teaching style, grading methods, and the pessimistic tendencies of law students”.
The pervasive disenchantment among lawyers and the concomitant attrition rate among law firms can be remedied not by increasing compensation or perks but by using more valuable and less tangible rewards.
This will require changes in law firm culture — greater emphasis on “positive-sum games and cooperation” — as well as reforms at three levels: individual, firm-wide, and institutional.
At the individual level, lawyers must first recognize that “pessimism is maladaptive outside of work”. Perhaps they then can learn to apply the techniques of “flexible optimism in their private lives”.
At the law firm level, those members with the most power to effect change should actively participate in “creating more decision latitude for junior associates”.
At the least, partners should “create mentoring relationships with junior associates”. They should also delegate responsibilities and allocate tasks to junior associates that better speak to their “signature strengths”, thereby providing more control and decision-making power at an earlier stage in their development.
At the institutional level, bar associations that “foster and promote civility” among their members are on the right track. Judges and counsel who “encourage settlement and direct cases toward mediation” deserve credit for dampening the zero-sum nature of practice.
The law schools also play an institutional role. They are the entry point to the profession and help shape the system.
By “assisting new lawyers to adapt to the demands of practice” they can become agents for positive change.
The goal is clear: create a “psychologically healthier profession while honoring the essential role of lawyers as client representatives”.
These need not be incompatible objectives.
Much attention has been paid recently to the disillusionment among lawyers, especially young associates’ “quality of life.” Many bright attorneys grow disillusioned and cynical, with diminishing career opportunities.
Unhappy associates fail to achieve their full potential at a cost to them, their firms, their clients, and even their families. Invariably many lawyers leave the law firm, and some the practice of law, prematurely, resulting in undesirable turnover, and a loss of talent to the profession.
The hypotheses of the authors suggested that much of the unhappiness of lawyers, which, by the way, is curable, stemmed from three causes:
(1) Lawyers are selected for their pessimism (or “prudence”) and this generalizes to the rest of their lives;
(2) Young associates hold jobs that are characterized by high pressure and low decision latitude, exactly the conditions that promote poor health and poor morale; and
(3) Law is to some extent a zero-sum game, and negative emotions flow from zero-sum games.
There is little doubt that “a dysfunctional legal profession will have a negative effect on the law itself”.
Since lawyers are members of a “public profession,” their dysfunction entails societal, as well as personal, costs. Indeed, the creation of law itself is in one sense bound up with the health of judges, lawyers, legislators, and academicians.
The authors theorized that the new field of “positive psychology” (which seeks to cultivate human strengths, rather than focus on human weaknesses), offers coping strategies to reduce unhappiness, and can be adapted successfully to the legal setting, in particular the large law firm.
One of the triggers for combating demoralization involves the avoidance of “zero-sum situations”. In law, such situations seem inevitable; they lie at the heart of our adversarial system of justice. If we accept that the “adversary model” embraces important social values, displacing it may not be in our interest. If so, some degree of lawyer unhappiness may be unavoidable if we are to achieve societal goals.
This raises the ironic possibility that “lawyers can be made happier only at public expense”. It also may be why lawyers have long been “known for their saturnine personalities.”
The authors stated that their prescriptions have to account for “the connection between the goals of the legal system and the nature of its practitioners”. They believe that steps can be taken to improve the lives of lawyers.
Even assuming “lawyer pessimism has a social purpose”, recognition of that fact may well facilitate deeper understanding by lawyers of their role in society. Even “exercises in introspection can help to improve the quality of a lawyer’s life.”
Practitioners have increasingly acknowledged that “law is a profession in crisis”, and the crisis they speak of relates to the “widespread disenchantment among even the most talented lawyers.”
According to the authors, among practitioners responding to a 1992 poll, 52 percent described themselves as dissatisfied, and many are retiring early or leaving the profession altogether.
In many cases, “the problem is not financial”. Associates at top firms can earn (with bonuses) up to $200,000 per year in their first year of practice.
In the last decade, lawyers have surpassed doctors as the highest-paid professionals.
But financial recognition may just be “a symptom of the problem”. The recent pay increases at large law firms are themselves “partially caused by lawyer dissatisfaction”.
The euphemistic “retention bonuses” are awarded to ensure that young associates “extend their service beyond two or three years”. Combating this desire to leave early is among law firms’ highest priorities, since they can only “recoup their investment in new lawyers over a longer period of time”.
The authors stated that in addition to being disenchanted, lawyers are “in remarkably poor health.” They are at much greater risk than the general population for “depression, heart disease, alcoholism and illegal drug use”.
They cited Johns Hopkins University study which found statistically significant elevations of major depressive disorder (“MDD”) in only three of 104 occupations surveyed. When adjusted for socio-demographic factors, lawyers topped the list, suffering from MDD at a rate 3.6 times higher than employed persons generally.
The studies confirm the hypothesis that “lawyer unhappiness can lead to serious health and social problems that pose a threat to the legal profession.”
Unhappy lawyers not only burden their families. Given their role in a public profession they can also “injure their clients by failing to provide adequate representation”. Unhappiness and depression are intimately associated with “passivity and poor productivity at work”. Lawyers who violate their clients’ interests often become disciplinary problems.
But formal recognition usually comes late in lawyers’ careers, after “a long period of unrecognized and unaddressed problematic behavior”. By that point, inadequate representation may already have caused “irreparable injuries to clients and the legal system”. The potential problems must be addressed “before they rise to the level of disciplinary offenses”.
Some law students have selected law because of their “pessimistic personalities” and so they are “at risk of depression when they become lawyers”. Law schools are themselves a “potential breeding ground for lawyer demoralization”.
Research in positive psychology suggests three principal causes of the
demoralization prevailing among lawyers:
(a) Pessimism,
(b) Low decision latitude, and
(c) The “zero-sum game” nature of the job.
“Pessimism” is a term emerging from a reformulation of “learned helplessness theory”, a theory first systematically articulated by researchers studying animal behavior.
Pessimism is defined not in the colloquial sense: “seeing the glass as half full or half empty” but rather, as a pessimistic “explanatory style.”
This is the tendency to interpret the causes of negative events in stable, global and internal ways: “It’s going to last forever; it’s going to undermine everything; it’s my own fault.” Under this definition, the pessimist will view bad events as unchangeable.
The optimist, in contrast, sees setbacks as temporary.
Research has revealed, predictably, that “pessimism is maladaptive in most endeavors”.
Pessimistic sales agents make fewer sales attempts, are less productive and persistent, and quit more readily than optimistic agents. Pessimistic undergraduates get lower grades.
Pessimistic swimmers have more sub-standard swims. Pessimistic world leaders take fewer risks and act more passively during political conflicts than their optimistic counterparts.
But while pessimists tend to be losers on many fronts, there is one striking exception: “pessimists may fare better in law”. Research reveals a “surprising correlation between pessimism and success in law school”.
In a 1987 study of Virginia law students, it was revealed that law students whose attributional style defined them as “pessimistic” actually fared better than their optimistic peers. Specifically, the pessimists outperformed more optimistic students on traditional measures of achievement, such as grade-point average and law journal success.
These data suggest that what is labeled as pessimism is “not a detriment and may even be a virtue for lawyers”.
Pessimism encompasses certain “positive” dimensions; it contains what we call - in less pejorative terms - “prudence.” A prudent perspective, which requires caution, skepticism and “reality appreciation,” may be an asset for law or other skill-based professions.
It is certainly a quality that is embraced in legal education. Prudence enables a good lawyer “to see snares and catastrophes” that might conceivably occur in any given transaction.
The “ability to anticipate a whole range of problems that non-lawyers do not see” is highly adaptive for the practicing lawyer. Indeed clients would be less effectively served if lawyers did not so behave, even though this ability to question occasionally leads to lawyers being labeled as “deal breakers or obstructionists”.
The qualities that make for “a good lawyer”, however, may not make for “a happy human being”. Pessimism is well-documented as “a major risk factor for unhappiness and depression”.
Lawyers cannot easily turn off their pessimism (i.e. prudence) when they leave the office. Lawyers who can see acutely how bad things might be for clients are also burdened with the tendency “to see how bad things might be for themselves”. Pessimists are more likely than optimists “to believe they will not make partner, that their profession is a racket, or that the economy is headed for disaster”. In this manner, pessimism that might be adaptive in the profession also “carries the risk of depression and anxiety in the lawyer’s personal life”.
The challenge is how to “remain prudent professionally” and yet “contain pessimistic tendencies in domains of life outside the office”.
A second psychological factor producing lawyer unhappiness is “low decision latitude”.
Decision latitude refers to the “number of choices one has or, as it turns out, one believes one has”. Workers in occupations that involve “little or no control” are at risk for depression and for poor physical health.
An important study of the “correlation of job conditions with depression and coronary disease” used two dimensions: (1) job demands and (2) decision latitude.
Beyond the “intense job demands of law practice”, low decision latitude is also a frequently cited problem. Associates often have “little voice or control over their work, only limited contact with their superiors, and virtually no client contact”. Instead, for at least the first few years of practice, many remain “cloistered and isolated in a library (or behind a computer screen), researching and drafting memos”.
In these high-pressure, low decision latitude positions, the associates are likely candidates for negative health effects, such as “higher rates of heart disease and for higher divorce rates”. These same associates are candidates for “early departure from law firms”. As such, they are often the object of “retention bonuses.” Not surprisingly, many young lawyers who do leave firms early choose “alternative legal careers”, such as legal aid or assistant district attorney, “where the pay is considerably lower but the decision latitude is considerably greater”.
There antidote for pessimism is optimism.
Optimism is the ability to dispute recurrent catastrophic thoughts effectively, and it can be learned.
“Flexible optimism” can be taught to both children and adults to enable them to determine how and in what situations one should use optimism and when to use pessimism.
The techniques of “learned optimism,” can teach lawyers to use optimism in their personal lives, yet maintain an adaptive pessimism in their professional lives.
Flexible optimism can be taught in a group setting such as law firms.
Learned optimism recommends that individuals employ a “disputing technique” to control their negative emotions.
In the disputing technique, the lawyer first learns to identify catastrophic thoughts she has, and the circumstances under which they occur. Then she learns to treat these thoughts as if they were uttered by a rival for her job, a third person whose mission is to make her life miserable. She then learns to “marshal evidence against the catastrophic thoughts”.
Credible disputing of pessimistic thinking is “self-maintaining because one feels better at the moment one does it”.
As to the high pressure-low decision latitude problem, there is a remedy as well. We accept that pressure is an inescapable aspect of law practice. But high pressure itself does not seem to be the problem; rather, it is the combination of high pressure and low decision latitude that causes negative health effects. By modifying this dimension, lawyers can become both more satisfied and more productive.
One solution is to tailor a lawyer’s day so there is considerably “more personal control over work”.
Antidotes to associate malaise include “more substantive training, mentoring, a voice in management, and earlier client contact”.
Research on the problem of decision latitude revealed that the “mere illusion of decision latitude has beneficial effects on morale”.
“Perceived control” can be just as effective an experimental condition as “actual control”. This means that “efforts to meet and communicate about problems” can have beneficial effects. Establishing a committee on associate morale, coupled with surveys and interviews of young associates, is one way to accomplish this result. But young lawyers are a highly skeptical group, and they are quick to challenge attempts at talk and no action.
A law firm can gain by learning more about associates’ strengths and employing that knowledge to help “shape the work environment”.
When a young lawyer enters a firm, he or she comes equipped not only with prudence and other lawyerly talents like high verbal intelligence, but with an additional set of unused signature strengths, such as “leadership, originality, fairness, enthusiasm, perseverance, and social intelligence”.
Law firms should discover the particular signature strengths of their associates. Exploiting them could make the difference between a demoralized associate and an energized, productive colleague.
A firm can produce higher morale by setting aside five to ten hours of the work week for “signature strength time,” (i.e., a non-routine assignment that uses the signature strengths). Over time, higher morale will translate into higher billing hours.
If an associate’s strengths include leadership he or she could be assigned to associate committee work; or if it is social intelligence, he or she could be exposed to clients at an earlier stage. Originality might send an associate to the library to search out a non-obvious theory to an intractable legal problem.
A zero-sum game is an endeavor in which “the net result is zero”. For every gain by one side, there is a counterbalancing loss by the other. A sports event is a zero-sum game, in that there must be winners and losers. A non-zero-sum game, in contrast, is an endeavor in which there is a net gain.
Negative emotions (i.e. anger, anxiety, and sadness) have evolved from zero-sum games, and that positive emotions have evolved from non-zero-sum games.
Historians argue that human civilization has reached its present state of social development by harnessing non-zero interactions, and that as humans continue to evolve, non-zero-sum games have become more numerous and elaborate, and have produced collective benefits to society.
Mutual profit can be achieved in zero-sum interactions if two problems are solved: “communication and trust”. If these conditions are obtained, stable, cooperative relationships emerge.
Much of the lawyer’s relationship to his client, the court and even fellow lawyers is premised on “established, norm-based commitments”. If these “core values of the profession can move in the direction of non-zero status”, the profession can also be benefited.
Positive emotions, such as joy, amusement and interest, are broadening; they build social and intellectual resources. By contrast, negative emotions narrow and restrict the social and cognitive environment.
The “adversary process”, which lies at the heart of the system of law, has long been viewed as a “classic zero-sum game”. In litigation, one side’s gain often moves in lockstep with the other side’s loss.
Lawyers are trained to be “aggressive and competitive” precisely because they “must win the litigation game”. This training, because it is fueled by negative emotions, can be a source of “lawyer demoralization”, even if it fulfills a “social function”.
One problem with the “adversarial paradigm” is that “the single-minded drive toward winning the competition will make young lawyers not only less useful citizens but also less good as lawyers, less sympathetic to other people’s troubles, and less valuable to their clients.”
When the practice of law is tied up with a large number of zero-sum games, it will produce predictable emotional consequences for the practitioner, who will be “anxious, angry and sad much of his professional life”.
The adversary model is “entrenched in the ethics of law”. The introduction of more non zero-sum situations, e.g., conciliation, mediation, and arbitration, decreases demoralization, but at the cost of our system of justice.
By understanding the values of the adversary system in terms of its zero-sum nature, we can assess alternatives that seek to “soften competition with cooperation”.
Modifications to our legal system must be justified both in terms of an individual’s well-being, and of our system of justice.
Social psychology has analyzed the adversary system from the standpoints of “fairness and satisfaction”. The adversarial system of justice leaves “more control in the parties (through their attorneys)”.
Since control has a salutary psychological effect, the adversary model is one expression of a “satisfactory political system”.
By placing control in the individual over the state, the adversary system reflects “deeper values of liberalism and even natural justice”.
In this way, the lawyer has a central role “as a public servant, a preserver of the values inherent in our political structure, even when he or she is seemingly only arguing for a client’s self-interest”.
The authors argue that “self-interest serves the public interest”.
The psychological question is “whether adversaries can be competitive without being pessimistic”.
The way adversariness is perceived by lawyers helps shape their character and encourages pessimistic behavior. Sometimes “competitiveness is unnecessarily combative”.
The lawyers’ code of ethics emphasizes “zealous” representation. But what does zealous representation add to competent representation?
Many have asked why the legal profession envisions litigation as war. The question is, can lawyers serve the adversary system without generating conflict on a personal level?
Civility need not weaken the lawyer’s commitment to the adversary system.
In fact, a growing number of law schools and law firms now recognize the importance of instilling civility and teaching team-building skills. Under this vision, it may be possible “to retain the virtues of adversariness while discarding some of its negative dimensions”.
The zero-sum effects of the adversary model, in terms of its “winner-take-all” mentality, usually occur where cases are tried to judgment—a small minority of cases. Where settlements occur, both sides frequently have made wise choices that allow them to claim victory.
Outside of litigation, non-zero expectations can play an even greater role. Most lawyers are not litigators; rather they are specialists in “normative ordering.” The notion of normative ordering suggests a role that fits the lawyer-statesman ideal. When lawyers assume these roles, cooperation challenges the virtue of competition.
While the authors accept the “social necessity for an adversary model”, with its zero-sum implications, they feel that the benefits of the adversary system can be expanded without zero-sum consequences. If litigation itself can be avoided, the client may still retain control over the outcome while increasing the probability of cooperative solutions.
The authors stated that choosing lawyers with reputations for cooperation can produce positive litigation outcomes. They see health and economic effects through cooperation because of its non-zero characteristics.
The combination of both effects has significant social promise. If the positive role of adversaries can be expanded, benefits would occur for society and the legal profession.
Finally, the authors noted that the zero-sum dimension was not the whole story in litigation. While the ends may often be zero-sum, the means can encompass non-zero dimensions.
As applied to the litigation context, iteration might help extend ideas of cooperation into the adversary process.
For example, “standstill agreements” between potential litigants are used to permit settlement discussions to proceed on a cooperative basis, without fear of having concessions used later in a courtroom.
Similarly, “mandatory mediation provisions” in contract disputes are designed to free up the parties to explore alternatives before litigation commences.
Law schools are both a source of the problem and a necessary part of the solution. The Socratic teaching method—employed especially in large, first-year classes—cultivates and encourages adversarial thinking by emphasizing zero-sum situations. The students’ adversarial skills are honed by withstanding questioning from skeptical interrogators.
In this respect, law school pedagogy differs from that of business schools, where cooperative projects and thinking are the rule in leading MBA programs. Moreover, competition for grades, among a group who self selects law for its pessimistic qualities, adds to the challenges.
There is a need for further study into the “relationships among teaching style, grading methods, and the pessimistic tendencies of law students”.
The pervasive disenchantment among lawyers and the concomitant attrition rate among law firms can be remedied not by increasing compensation or perks but by using more valuable and less tangible rewards.
This will require changes in law firm culture — greater emphasis on “positive-sum games and cooperation” — as well as reforms at three levels: individual, firm-wide, and institutional.
At the individual level, lawyers must first recognize that “pessimism is maladaptive outside of work”. Perhaps they then can learn to apply the techniques of “flexible optimism in their private lives”.
At the law firm level, those members with the most power to effect change should actively participate in “creating more decision latitude for junior associates”.
At the least, partners should “create mentoring relationships with junior associates”. They should also delegate responsibilities and allocate tasks to junior associates that better speak to their “signature strengths”, thereby providing more control and decision-making power at an earlier stage in their development.
At the institutional level, bar associations that “foster and promote civility” among their members are on the right track. Judges and counsel who “encourage settlement and direct cases toward mediation” deserve credit for dampening the zero-sum nature of practice.
The law schools also play an institutional role. They are the entry point to the profession and help shape the system.
By “assisting new lawyers to adapt to the demands of practice” they can become agents for positive change.
The goal is clear: create a “psychologically healthier profession while honoring the essential role of lawyers as client representatives”.
These need not be incompatible objectives.
Pro bono
May I summarize important points about the pro bono publico service guidelines of the American Bar Association (ABA).
This is one professional duty that must be required of all Filipino lawyers.
Under the ABA guidelines, a US lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.
In fulfilling this responsibility, the lawyer should provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to persons of limited means or charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.
He should provide any additional services through delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate; delivery of legal services at a substantially reduced fee to persons of limited means; or participation in activities for improving the law, the legal system or the legal profession.
A lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
The official ABA commentaries on the above rules are summarized below. Thus:
[1] Every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.
All lawyers are urged to provide a minimum of 50 hours of pro bono services annually.
States, however, may decide to choose a higher or lower number of hours of annual service (which may be expressed as a percentage of a lawyer's professional time) depending upon local needs and local conditions.
It is recognized that in some years a lawyer may render greater or fewer hours than the annual standard specified, but during the course of his or her legal career, each lawyer should render on average per year, the number of hours set forth in the Rules.
Services can be performed in civil matters or in criminal or quasi-criminal matters for which there is no government obligation to provide funds for legal representation, such as post-conviction death penalty appeal cases.
[2] The Rules recognize the critical need for legal services that exists among persons of limited means by providing that a substantial majority of the legal services rendered annually to the disadvantaged be furnished without fee or expectation of fee.
“Legal services” consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means.
The variety of these activities should facilitate participation by government lawyers, even when restrictions exist on their engaging in the outside practice of law.
[3] Persons eligible for legal services are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless, cannot afford counsel.
Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women's centers and food pantries that serve those of limited means.
The term "governmental organizations" includes, but is not limited to, public protection programs and sections of governmental or public sector agencies.
[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential.
Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under the Rules.
Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.
[5] While it is possible for a lawyer to fulfill the annual responsibility to perform pro bono services exclusively through these activities, to the extent that any hours of service remained unfulfilled, the remaining commitment can be met in a variety of ways.
Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers and judges from performing the pro bono services, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing other authorized services outlined.
[6] The Rules include the provision of certain types of legal services to those whose incomes and financial resources place them above limited means. It also permits the pro bono lawyer to accept a substantially reduced fee for services.
Examples of these types of issues include First Amendment claims and environmental protection claims.
Additionally, a wide range of organizations may be represented, including social service, medical research, cultural and religious groups.
[7] The Rules cover instances in which lawyers agree to and receive a modest fee for furnishing legal services to persons of limited means.
Participation in judicare programs and acceptance of court appointments in which the fee is substantially below a lawyer's usual rate are encouraged.
[8] The Rules recognize the value of lawyers engaging in activities that improve the law, the legal system or the legal profession.
Serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, a mediator or an arbitrator and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph.
[9] Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services.
At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means.
Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activities.
[10] Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide those services.
Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible.
[11] The responsibility set forth in the Rules is not intended to be enforced through disciplinary process.
This is one professional duty that must be required of all Filipino lawyers.
Under the ABA guidelines, a US lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.
In fulfilling this responsibility, the lawyer should provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to persons of limited means or charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.
He should provide any additional services through delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate; delivery of legal services at a substantially reduced fee to persons of limited means; or participation in activities for improving the law, the legal system or the legal profession.
A lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
The official ABA commentaries on the above rules are summarized below. Thus:
[1] Every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.
All lawyers are urged to provide a minimum of 50 hours of pro bono services annually.
States, however, may decide to choose a higher or lower number of hours of annual service (which may be expressed as a percentage of a lawyer's professional time) depending upon local needs and local conditions.
It is recognized that in some years a lawyer may render greater or fewer hours than the annual standard specified, but during the course of his or her legal career, each lawyer should render on average per year, the number of hours set forth in the Rules.
Services can be performed in civil matters or in criminal or quasi-criminal matters for which there is no government obligation to provide funds for legal representation, such as post-conviction death penalty appeal cases.
[2] The Rules recognize the critical need for legal services that exists among persons of limited means by providing that a substantial majority of the legal services rendered annually to the disadvantaged be furnished without fee or expectation of fee.
“Legal services” consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means.
The variety of these activities should facilitate participation by government lawyers, even when restrictions exist on their engaging in the outside practice of law.
[3] Persons eligible for legal services are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless, cannot afford counsel.
Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women's centers and food pantries that serve those of limited means.
The term "governmental organizations" includes, but is not limited to, public protection programs and sections of governmental or public sector agencies.
[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential.
Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under the Rules.
Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.
[5] While it is possible for a lawyer to fulfill the annual responsibility to perform pro bono services exclusively through these activities, to the extent that any hours of service remained unfulfilled, the remaining commitment can be met in a variety of ways.
Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers and judges from performing the pro bono services, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing other authorized services outlined.
[6] The Rules include the provision of certain types of legal services to those whose incomes and financial resources place them above limited means. It also permits the pro bono lawyer to accept a substantially reduced fee for services.
Examples of these types of issues include First Amendment claims and environmental protection claims.
Additionally, a wide range of organizations may be represented, including social service, medical research, cultural and religious groups.
[7] The Rules cover instances in which lawyers agree to and receive a modest fee for furnishing legal services to persons of limited means.
Participation in judicare programs and acceptance of court appointments in which the fee is substantially below a lawyer's usual rate are encouraged.
[8] The Rules recognize the value of lawyers engaging in activities that improve the law, the legal system or the legal profession.
Serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, a mediator or an arbitrator and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph.
[9] Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services.
At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means.
Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activities.
[10] Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide those services.
Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible.
[11] The responsibility set forth in the Rules is not intended to be enforced through disciplinary process.
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