The news, editorials and columns on the forthcoming 7 vacancies in the Philippine Supreme Court in 2009 have been hugging the Philippine dailies for the past week now. The Philippine Supreme Court being the last bulwark of democracy and freedom, in the midst of dictatorial tendencies of Philippine politicians and military and police generals, such publications are much deserved by the Philippine Supreme Court.
For purposes of legal research of thre visitors of this blog, may I reproduce below the editorial, dated November 10, 2008, of the prominent Philippine Daily Inquirer and the column, also dated November 10, 2008, of Philippine constitutiohnalist Fr. Joaquin Bernas, as well as my 2006 published speech and article on the matter of judicial appointments
Editorial : Gloria and the Supremes
Philippine Daily Inquirer
First Posted 00:12:00 11/10/2008
http://opinion.inquirer.net/inquireropinion/editorial/view/20081110-171221/Gloria-and-the-Supremes
MANILA, Philippines - In a departure from tradition, the Inquirer named an entire institution, the Supreme Court, as Filipino of the Year in 2001. The recognition, in large part, was for the extraordinary role the high court played, in the immediate aftermath of People Power II, to keep the ship of state on even keel. The Court, in a word, saved the Republic at a difficult, tumultuous time.
Will we come to hold the Supreme Court in the same high regard a year from now?
The unsettling question forces itself on us, now that the public has come to realize that in 2009 President Macapagal-Arroyo will have the opportunity to fill as many as seven vacancies in the Supreme Court. This is an enormous responsibility, and one which, perhaps in an earlier time, President Arroyo herself would have shrunk from.
In her Rizal Day 2002 speech renouncing the opportunity to run for President in her own right, and in several speeches afterwards, Ms Arroyo acknowledged that her participation in the events that led to Edsa II and that ended with her assumption of the presidency made her a politically divisive figure. There was, in the words of Jose de Venecia, then the Speaker of the House, too much poison in the air.
That divisiveness remains, because we are still suffering through the post-impeachment era. Indeed, the President has only become a more divisive and a vastly more unpopular figure since she was sworn into office, in her own right, in 2004. Even her decision to pardon deposed president Joseph Estrada last year, after he was convicted on plunder charges, failed to appease Estrada’s many supporters or consolidate her base.
But she continues to hold the reins of power, and next year she will appoint as many as seven new Supreme Court justices. Expect the levels of toxicity to shoot up.
Does this mean we can only expect partisan appointments, justices more loyal to the President than to the Constitution? Not necessarily. We must point out that her elevation of both Artemio Panganiban and Reynato Puno to the honor and office of Chief Justice of the Supreme Court was not exactly in her best, most partisan interest. We should also note that some of her own appointments, such as Antonio Carpio or even Adolfo Azcuna (whom we originally opposed) have voted time and again against the administration in critical cases. Even an appointee perceived in many quarters as possibly too beholden to the President, like Dante Tinga, has displayed a capacity to surprise the Palace. In the recent case involving the Memorandum of Agreement on ancestral domain, for instance, Tinga voted on procedural grounds (thus aligning with the Palace position) but wrote a vigorous opinion that, among other things, found the MOA categorically unconstitutional (thus undermining the Palace strategy).
The high court has also had a history of justices finding greatness in dissent, in turning against their appointing power and into history’s light. Claudio Teehankee Jr., to give only one famous example, was appointed to the Court by Ferdinand Marcos (was in fact and for over a year Marcos’ own secretary of justice)—but he came to symbolize the legal opposition to the Marcosian brand of constitutional authoritarianism.
Dissenters, however, are necessarily lonely voices; they very rarely convince the rest of the Court. And today’s secretary of justice, Raul Gonzalez, is the most partisan in memory; he has effectively politicized the administration of justice. Not least, President Arroyo has learned to make the nominally independent Judicial and Bar Council a virtual adjunct of her office. She has the power to ignore the JBC’s recommendations until her preferred choice appears on the list of recommendees, and it is a power she will not hesitate to use.
That means that the question of a justice’s loyalties is really a question of character. An appointee the public objects to can surprise even the most extreme critic; an appointee with sterling qualifications can disappoint with unbecoming timidity and lack of independence.
We in the Inquirer continue to believe that an appointment to the Supreme Court is an invitation to greatness; because a justice does not run for political office and is usually already an eminent and well-compensated member of the bar, appointees are accountable only to their conscience and the Constitution. Millions of Filipinos will be watching the Court closely, to praise the worthy and criticize those who fail. Count us among them.
Sounding Board
Choosing Supreme Court justices
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:15:00 11/10/2008
http://opinion.inquirer.net/inquireropinion/columns/view/20081110-171223/Choosing-Supreme-Court-justices
MANILA, Philippines - Lawrence Tribe put it very well when he said that “the answers we actually get when we ask questions [about constitutional issues] depend to some degree on who is answering them—including who is sitting on the Supreme Court at the time we ask.” And he quotes Justice Robert H. Jackson as saying, “We are not final because we are infallible, we are infallible because we are final.” But, of course, this is only until a later Court says it was not so final after all.
In recent months we have had decisions coming from the Supreme Court characterized by strong prevailing opinions and equally strong dissenting opinions. You can almost predict with precision which justices will take which side. The latest one, the one on the MOA-AD, could have gone either way depending on which side one swing vote would go. And people are speculating who the swing vote was and why.
Those who have been following the direction of US Supreme Court decisions cannot escape noticing how sharply divided they have also been. Crucial issues about abortion, state powers, school prayer, right to bear arms, war powers and others have been decided by a 5-4 vote with the outcome depending on which side Justice Anthony Kennedy votes. Although the votes divide along liberal or conservative positions, at bottom they can really be for or against the president’s ideological inclination.
Our Supreme Court has also had a history of being linked with the preferences of the incumbent president. It was most pronounced during the authoritarian years when the Supreme Court, not without good reason, was often referred to as the Marcos Court. (I remember the late Justice Cecilia Muñoz Palma coming to my office at the time when she was being considered for the Supreme Court. She asked me what I thought she should say because she was being asked whether she was loyal.) Thus it was that a good number of the provisions of the 1987 Constitution were precisely introduced to reverse decisions of the Marcos years.
My impression is that the influence of the president was not so pronounced during the Cory years and the Ramos years. I prefer not to say anything about the current Supreme Court.
In the coming year the retirement of seven justices will create an equal number of vacancies in the Supreme Court. Will the political preferences of the president have a role in the choice of new justices? I say political preferences for good reason. Our justices have not been known for dividing along ideological lines.
The division among US Supreme Court justices is usually along ideological preferences, and the search for new justices is dictated by ideological alignment for or against the president who might be liberal or conservative. Thus, Jeffrey Toobin’s recent fascinating book, “The Nine,” about the US Supreme Court, concludes: “So one factor—and one factor only—will determine the future of the Supreme Court: the outcome of presidential elections. Presidents pick justices to extend their legacies.” He adds: “We can expect nothing more and nothing less than the Court we deserve.”
Toobin’s conclusion could just as well be descriptive of our current Supreme Court. And there is no reason to believe that the Supreme Court of the coming year will be any different. The President will have the opportunity next year to choose seven men and women of her persuasion. Yes, seven! Perhaps even eight!
Under the 1935 Constitution the president’s choice of justices of the Supreme Court was limited by the need for confirmation by the Commission on Appointments.
Under the 1973 Constitution there was no check on the president’s appointing authority.
The 1987 Constitution did not revive the need for confirmation by the Commission on Appointments in the belief that confirmation by the Commission on Appointments had made the process too political in a pejorative sense. Hence was created the Judicial and Bar Council to act as a check on the appointing authority. Has this been an improvement?
The Judicial and Bar Council consists of the chief justice as ex officio chairman, the secretary of justice, a representative from Congress, together with a professor of law, a retired member of the Supreme Court, and a representative of the private sector as regular members. The regular members are appointed by the president with the consent of the Commission on Appointments. The President can appoint only from a list of at least three names; but she is free to reject all of them and ask for more names until the preferred name surfaces.
The fruit of the pudding is in the eating. You be the judge of the justices appointed under this system. Without a doubt, the preferences of the president are a factor in the choice of the nominees produced by the Judicial and Bar Council.
Of course, presidential preference is also a factor in the choice of US Supreme Court justices. But the major difference between the US process and the Philippine process of choosing is that in the United States the president’s preference is known ahead of time. It is the president who makes the initial nomination and the president’s nominee is subjected to a rigorous public hearing which can result in rejection, as in the case of Robert Bork. The expectation of a strong opposition can cause a nominee to withdraw, as happened in the recent case of Harriet Miers. Nothing like these can happen in the Judicial and Bar Council. In our system, the president’s communicated preference can be sandwiched and disguised by the JBC between two foils.
Serious talk about constitutional amendment after the 2010 elections is growing in strength. If we should have an amendatory process, I am certain that one of the provisions which will be subjected to examination is the manner of choosing Supreme Court justices and other appellate justices. Until this happens, we have to make the present system work.
REACTION PAPER OF ATTY. MANUEL J. LASERNA JR., PROFESSOR OF LAW, FAR EASTERN UNIVERSITY (FEU), DELIVERED DURING A FORUM SPONSORED BY THE KILOSBAYAN AT THE FEU UNIVERSITY CONFERENCE CENTER ON FEBRUARY 23, 2006 AT 2:00 PM ON THE SUBJECT OF THE SCREENING, SELECTION, AND APPOINTMENT OF JUDGES AND JUSTICES, HELD IN THE PRESENCE OF SUPREME COURT CHIEF JUSTICE ARTEMIO PANGANIBAN, FORMER SENATE PRESIDENT JOVITO SALONGA, AND FACULTY MEMBERS AND ADMINISTRATIVE OFFICIALS OF THE FAR EASTERN UNIVERSITY.
I. INTRODUCTION
Article VIII of the 1987 Constitution, entitled “Judicial Department”, governs the screening, selection and appointment of judges and justices, which is our topic in this forum, and other relevant matters concerning the Judiciary.
The principles that should guide the Judiciary in a modern democracy are independence, integrity, probity, competence, accountability, transparency, and good governance.
I dare say that in a time of serious political crisis, such as now, the most important principle that should guide the Judiciary is the principle of “institutional independence and autonomy”. An independent and autonomous Judiciary is the greatest stabilizer of a weak, unstable and unpredictable political community.
One may add the concept of “the legal empowerment” of the basic communities and the concept of “cost-effective access to quality justice” by the marginalized sectors, pursuant to the constitutional doctrine of “social justice” and the ecumenical doctrine of “the preferential option for the poor”, as additional working principles that should guide the Judiciary of a modern democracy.
The challenge that we face in this forum is to share our thoughts on how to improve the present system of screening, selecting and appointing judges and justices so that only the best, the brightest, the independent, the virtuous, the honorable, and the courageous are appointed to dispense and administer justice and to promote and defend of the rule of law in the country.
The vow of our new Chief Justice, Hon. Artemio Panganiban, as expressed in his recent pronouncements, is to lead a judiciary characterized by four (4) INs: Integrity, Independence, Industry, and Intelligence. He envisions a judiciary that is impervious to the plague of the four (4) “ships”: kinship, relationship, friendship, and fellowship. He has vowed to battle what he calls the four (4) ACID problems: access to justice by the poor, corruption, incompetence, and delay in the delivery of quality and cost-effective justice. He has a twin vision of a “reformed judiciary” and a “revitalized legal profession” which is directed towards two (2) loftier national goals: safeguarding liberty and nurturing prosperity.
His working philosophy and personal code of moral conduct, as manifested in his vows and goals as Chief Justice, speak excellently of his own parents, who had taught him, by example, the meaning of selflessness, service, virtue, and dignity, and of his own alma mater, the Far Eastern University, which, by the examples shown by his mentors in the Institute of Law, had developed his moral courage and power of critical and independent thinking to defend Truth, Freedom, and Justice.
II. JUDICIAL APPOINTMENTS UNDER THE CONSTITUTION
Let me cite the substance of relevant provisions of Article VIII of the 1987 Constitution insofar as they may be relevant to the subject matter of this forum.
Sec. 7, Par. 3, Article VIII of the Constitution provides that “a Member of the Judiciary must be a person of proven competence, integrity, probity, and independence”.
To reduce the adverse and corrupting effects of patronage and partisan politics in the appointment of judges and justices, Sec. 8, Article VIII of the Constitution has created the Judicial and Bar Council (JBC), principal function of the Council is to recommend appointees to the Judiciary. The Council is under the administrative supervision of the Supreme Court.
It is composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
The regular members of the Council are appointed by the President for a term of four years with the consent of the Commission on Appointments.
Sec. 9, Article VIII of the Constitution provides that the Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation by the Commission on Appointments.
Sec. 5 provides that the Supreme Court shall have the power to assign temporarily judges of lower courts to other stations as public interest may require; that such temporary assignment shall not exceed six months without the consent of the judge concerned; and that the Supreme Court shall appoint all officials and employees of the judiciary in accordance with the Civil Service Law.
Sec. 6 provides that the Supreme Court shall have the administrative supervision over all courts and the personnel thereof. Sec. 12 provides that the Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.
III. SERIOUS CONCERNS
Based on my conversations with leaders of the Bar, officials and employees of the Judiciary, leaders of law and justice-oriented non-governmental organizations and people’s organizations, faculty members of law schools, and representatives of the pillars of the Criminal Justice System of the southern district of Metro Manila, in my capacity as the Founder and the incumbent Chairman of the Las Pinas City Bar Association (LPBA), Inc., as the incumbent Vice President of the Integrated Bar of the Philippines (IBP) – Pasay Paranaque Las Pinas Muntinlupa (PPLM) Chapter, and as a member of the law faculty of this University, the common concerns of the stakeholders of the justice system refer to the debilitating, corrupting and demeaning influence of patronage and partisan politics, both local and national, and the influence of blood and social relationships, alma-mater and fraternity links, and religious connections in the screening, selection, and appointment of trial judges.
As to the screening, selection and appointment of justices of the Court of Appeals, Sandiganbayan, Court of Tax Appeals, and Supreme Court, again, the most serious concern of the stakeholders of the justice system refers to the debilitating, corrupting and demeaning influence of partisan politics at the national level, a perception which is widely expounded in the mass media, which diminishes the image of independence, autonomy, incorruptibility, fairness and credibility of the justice system, and which creates internal demoralization within the Judiciary.
The Supreme Court itself, under the leadership of the past Chief Justice, Hon. Hilario Davide Jr., had recognized these concerns. It has, in fact, taken and continues to take major policy, institutional, infrastructural, administrative, and technological steps, under the 2000 judicial reform program called THE DAVIDE WATCH, aided by its international development partners and donors, to a noble vision:
“A judiciary that is independent, effective and efficient, and worthy of public trust and confidence; and a legal profession that provides quality, ethical, accessible and cost-effective legal service to our people and is willing and able to answer the call to public service”.
The Davide Watch and its component programs had the full support of the incumbent Chief Justice, Hon. Artemio Panganiban, who has committed to continue to implement the current Action Program For Judicial Reform (APJR) of the Supreme Court. The APJR deserves the full support of the Bar, the Bench, and the Filipino people, in general.
IV. PROPOSED AMENDMENTS
The provisions of the 1987 Constitution with respect to the screening, selection, and appointment of judges and justices must be amended, to give flesh and substance to the mission statement of The Davide Watch and The APJR:
To “insulate the selection process and appointments to the Judiciary from political patronage”; To “insure that only those of proven competence, integrity, probity and independence are appointed and remain in the Judiciary”; To “assert the fiscal autonomy of the Judiciary”; To “inform and educate the public about the judicial process”, And To “provide effective mechanisms for feedback from court personnel and the public”.
I respectfully propose the following amendments to Article VIII of the 1987 Constitution in relation to the selection and appointment of justices and judges:
1. That in case of vacancy in the position of the Chief Justice of the Supreme Court or the Presiding Justice of the Court of Appeals, Court of Tax Appeals, Sandiganbayan, and other special collegial appellate courts created by law, the most senior associate justice thereof shall automatically and immediately assume the position of Chief Justice or Presiding Justice of such Court, as the case may be, without need of recommendation by the Judicial and Bar Council, or appointment by the President, or confirmation by Congress;
2. That in case of vacancy in the position of Associate Justice of the Supreme Court, the Court of Appeals, the Sandiganbayan, and the Court of Tax Appeals, or a vacancy in the position of Presiding Judge of a first-level and second-level trial court and other special trial or appellate courts created by law, or in case of a lateral transfer of trial court judge to a sala of the same rank, the Supreme Court En Banc, not the President, shall fill the vacancy, within 90 days from the date of vacancy, from a list of three (3) nominees recommended by the Judicial and Bar Council, without need of confirmation by Congress;
3. That the Judicial and Bar Council shall be composed of a representative of the Integrated Bar of the Philippines, a retired member of the Court of Appeals or Sandiganbayan, a retired member of the Supreme Court, a representative of the national association of law schools, a representative of the national association of law professors, a representative of the national association of the judges of first-level trial courts, a representative of the national association of the judges of second-level trial courts, a representative of national association of law and justice-oriented non-governmental organizations, and a representative of the national association of law students, who shall be appointed by the Supreme Court En Banc, without need of
confirmation by Congress. The retired member of the Supreme Court shall be the Chairman of the Council. The members of the Council shall have a term of thee (3) years without re-appointment.
The usual and routine procedures of the Council and the Philippine Judicial Academy (PHILJA) should be maintained, e.g., medical examination, psychological tests, drug tests, public interviews, publication of the names of nominees, notices of the list of nominees to the concerned IBP Chapter, the local voluntary Bar association, and the national law and justice-oriented NGOs, mandatory pre-judicature course, written examination after the pre-judicature course, immersion period, orientation courses, background and lifestyle investigation, and others.
The Supreme Court should create a special investigative unit within its organizational structure that is the equivalent of an Internal Affairs Service empowered to conduct confidential triennial integrity and lifestyle check and investigation of all incumbent justices, judges and judicial personnel, in addition to the annual filing of statements of assets and liabilities.
V. CONCLUSION
In the ultimate sense, the integrity, probity, independence and competence of judicial officials and employees would depend on how zealous and vigilant the Filipinos are, as a united and mature national community, in promoting the rule of law, enhancing the administration of justice, and defending the Constitution from the greed, hate, and delusion of some of its misguided leaders and sectors.
Atty. Manuel J. Laserna Jr.
Professor of Law, FEU, since 1985
AB Journalism, 1979, UP Diliman
Bachelor of Laws, 1984, FEU, cum laude
(Cocofed Law Scholar)
3rd Place, 1984 Bar Exams, 90.95%
Master of Laws (cand.), UST GS, 2000 (FEU Fellow)
Chairman, Las Pinas City Bar Assn Inc.
Vice Pres., IBP PPLM Chapter
Monday, November 10, 2008
Saturday, November 8, 2008
Pluralism
In 2001, Prof. Dalia Tsuk of the University of Arizona wrote a paper entitled “THE NEW DEAL: ORIGINS OF AMERICAN LEGAL PLURALISM”, which I wish to summarize for purposes of legal research of the visitors of this blog.
Prof. Tsuk defines “pluralism” as “a commitment to devising a plural polity” and “ideology” as “the structure of ideas and beliefs—about right and wrong, about the meaning of democracy, about the goals of national policy—that influences an actor’s understanding of reality.”
She starts with the concept of “self-determination” by observing that “legal scholars and policymakers are today attempting to develop legal mechanisms that would accommodate the unique interests of particular groups, while also mediating and settling potential conflicts and tensions be¬tween individuals, groups, and peoples.”
The term “pluralism” is often associated with “process theories of democracy”, which seeks to create a conception of a “neutral political proc¬ess” in which different groups interact, com¬pete, or trade ends.
Theories of pluralism often recognized diversity not merely as an empirical fact, something that we must tolerate grudgingly or try to reduce, but as a “constitutive element of American democracy”. The extent to which laws and policies sought to accommo¬date and promote diverse group interests, beyond the sheer recogni¬tion of their existence, reflected a nation’s commitment to democratic values.
There are three models of pluralism: “socialist plural¬ism,” “systematic pluralism,” and “comparative pluralism.”
The author discussed the US federal Indian policy during the 1930s and 1940s, a period commonly labeled the “Indian New Deal.” The historical agent is Felix Solomon Cohen, who was the chief legal architect of federal Indian policy during the New Deal and who is also recognized today as one of the most important legal philosophers in the first half of the twentieth century.
Federal Indian policy at the turn of the twentieth century sought to break down tribal organization and force all Indians to assimilate, particularly through the distribution of communal lands to individ¬ual owners. The essence of the Indian New Deal was to stop allotment and assimilation by delegating to Indian tribes more authority over their economic, so¬cial, cultural, and political affairs.
Pluralism insists on the “plurality of things, as given in experience”, and on the “impossibility of a single law to traverse all the various domains of being”. A pluralist theory of knowledge insists on the “multiplicity (whether limited or infinite) of knowers in the world and various forms of knowledge or truth, none of which could claim epistemological primacy.” Plu¬ralism implies the existence of “a variety of competing ends, among which policymakers had to choose”.
Pluralism had much in common with pragmatism. Both ap¬proaches substitute empiricism, particularism, indeterminacy, and uncertainty for rationalism, universalism, determinacy, and cer¬tainty. Pragmatism emphasizes that the understanding of reality is mediated through experience. It was a theory of truth that sought to redefine reality according to experience. Pluralism focuses on the complex nature of reality. Not only is our conception of reality mediated through our individual experiences—as pragmatism suggested—but reality is also, for each one of us, one and many at the same time.
Pluralism’s focus on the “relationship between the one and the many” appealed to progressive thinkers. It offered a way out of the “tension between conservative individualism, on the one hand, and radical collectivism, on the other”.
Cultural pluralists seek legal mechanisms “that would accommodate the distinct heritages of diverse cultural groups”. Political pluralists strive “to empower distinct associations by recognizing their sovereignty, however limited”. Pluralism is “the midway between radical collectivism, on the one hand, and conservative individual¬ism, on the other”. Marching under the banner of “cultural self-determination” or that of “self-government,” advocates of pluralism pledge “a strong commitment to group autonomy”.
In the case of American Indians, the author stated that throughout the nineteenth and early twentieth centuries, Indian tribes were “at the outer boundaries of American society”. Until the mid-nineteenth century, white settlers sought mainly “to push Indian tribes westward and made no attempt to integrate the tribes into Anglo-American society”. Unlike other minority groups, Indian tribes were regarded as “distinct political communities” with limited sover¬eignty. Their efforts to maintain their tribal organization, however, often proved futile in the face of “military con¬quest, fraudulent or unfulfilled treaties, and the pressure of white settlement that forced them away from most of their lands”. Begin¬ning in the 1850s, Indians were “forced onto reservations”.
Beginning in the 1870s, government officials stressed the “need to assimilate all Indians into the mainstream of American life”. The General Allotment Act of 1887 (the Dawes Act), which articulated the “new policy of as¬similation”, targeted the tribes’ communal holding of property. The Act equated freedom with “individual possession of property”. It sought to force assimilation and the disintegration of tribal organization, particularly through the “distribution of commu¬nal lands to individual owners”. The Act was meant “to force Indians to cease their tribal ways, to be¬come individual farmers on small plots of lands, and thus to open the remainder of U.S. Indian reservations to non-Indian use.” The turn of the twentieth century thus witnessed the “reduction of many tribal governments from unalloyed internal sovereigns to virtual nonenti¬ties.”
A series of laws passed during the first decades of the century added insult to injury: they sought to enhance Indian assimilation, first by giving individual Indians their “pro rata share” of tribal funds and then by giving them “American” citizenship, e.g. the 1907 Lacey Act, the 1917 “Sells Declaration”, the 1919 Citizenship for World War I Veterans Act, the Snyder Act of 1921, the 1924 Indian Citizenship Act. To be citizens of the United States, Indians were pre¬sumably welcomed into the polity “but only as long as they relin¬quished their old ways.”
The author stated that the results were disastrous. The 1928 Meriam Report described “poverty, disease, suffering, and discontent” among Indians. Between 1887 and 1932 almost two-thirds of what remained of Indian lands were lost to white exploitation. Many Indians were theoretically in possession of considerable property, including land, but were, in reality, paupers. Few became successful farmers or ranchers, a fact that helped to deepen social and political divisions on the reservations. The distri¬bution of tribal lands also hastened the disintegration of many tribal governments or at least forced them to alter their traditional struc¬tures. Assimilation was never really even offered. The Indians were “given” citizenship but denied the rights of citizens, including the right to vote, access to local schools, and the right to serve on ju¬ries.
With the coming to power of the New Deal administration, federal Indian policy was ripe for change. Shortly after his appointment in the spring of 1933, John Collier—the new Commissioner of Indian Affairs—denounced land allotment as “a violation of tribal sovereignty and the vested rights that Indians had secured in previous treaties in return for much of their lands”. Collier pledged instead the moral and legal obligation of the government “to stop land allotment and to act upon the bilateral contractual relationship that it had created before 1871 with Indian tribes”.
Cohen suggested that the task of the new ad¬ministration was to stop the pressing of “capitalist individualism” on Indian tribes “through the allotment of tribal property to individual Indians and through the inculcation of the capitalist psychology,” and instead, to protect and encourage “a communal ceremony.”
Cohen be¬lieved that “with respect to Indian tribes, capitalism itself was op¬pressive”. He believed that “to leave Indian tribes to compete with business corpora¬tions in a supposedly noncoercive world, he asserted, was as encum¬bering as the control of their affairs by the bureaucracy”. Cohen argued: “We shall not add to the Indian’s freedom by accepting the shallow arguments of those who insist that the Indian will be free when he is given his own indi¬vidual property, [and] permitted to live under state laws and enjoy freedom of contract,” Cohen proclaimed… The termination of gov¬ernmental control would not inaugurate Indian free¬dom. It would only exchange the slavery of bureaucracy for the slav¬ery of poverty.”
What, then, was a solution that served Indian interests? Accord¬ing to Cohen, in order to protect the economic and political interests of Indian tribes, the Government had “to establish self-governing socialist communities on Indian reservations”. Cohen suggested that “through the mechanism of municipal and quasi-municipal charters issued by the Secretary of the Interior to Indian tribes and ratified by the Indians concerned,” Indian tribes would establish their self-government.
Cohen believed that the “incorporation” of Indian tribes would prevent future loss of Indian lands and allow the repurchase of res¬ervation lands already lost to non-Indians. He further maintained that the government should provide Indians with the credit facilities they needed to develop their own properties and should encourage communal holding of lands and other resources that could not be effi¬ciently used by individuals. Ultimately, the various political and economic powers, which were in 1934 invested in the Department of the Interior, were to be transferred to their true “owners”—the Indi¬ans. Through the establishment of “definite community ordinances” and community courts, as well as a special Federal Court of Indian Affairs, Cohen also expected an important shift toward legal stability and political advancement. When all that was secured, he pre¬dicted, the powers of the Government to govern tribal affairs could be entirely abolished. Genuine socialist communities would then flourish on Indian reservations.
Cohen’s program for reform “was informed by earlier theories of political pluralism, particularly Harold Laski’s, and by the legal realists’ view of law as an apology for political (social and economic) oppression”. He urged the “distribution of sovereignty to all associa¬tions, including labor unions, trade unions, industrial unions, con¬sumer organizations, farm organizations, semigovernmental corpora¬tions, and forms of associations that have not yet been invented.” Sovereignty was conditioned, however, upon a group’s “willingness to be democratically governed and, if possible, to adopt an economic structure premised on communal holding of property”. He envisioned “self-governing communities such as labor unions as the foundation of American democracy”.
The author stated that in 1937, Louis Jaffe argued that if groups were sovereign, they were also lawmaking entities and the state lost its absolute power as an exclusive producer of a singular system of national law. Cohen rejected it. As a socialist, he feared that “without centralized planning, free competition between corporations and labor unions would benefit the former at the expense of the lat¬ter”. Cohen’s approach was premised on a “strong commitment to governmental (socialist) planning”. He believed that “national plan¬ning was required not only to coordinate the plans of different self-governing associations, to balance production and consumption, and to distribute wealth and income, but also to protect fundamental in¬dividual rights.”
The establishment of modern governments, modeled after municipal and housing corporations and subject to the supervision of the Government, was the only alternative to assimilation. Cohen maintained that consulting the Indians was vital “to awaken sympathetic understanding among those most directly concerned with this policy.” Critical of earlier attempts to “impose capitalist individualism on Indian reservations”, Cohen failed to recognize that the structure he preferred “was a cultural product, too, and not necessarily suitable for the customs and tradi¬tions of Indian tribes”. Ironically, Cohen, who as an intellectual cele¬brated pluralism and as a Jewish American rejected assimilation. At any rate, he hoped to create “a single economic, if not also political, structure on Indian reservations”.
In general, the Government fell short of most of its political and economic aims. It stopped allotment, but since the transfer of lands from indi¬vidual to tribal ownership was voluntary, and as appropriations for land consolidation and purchases were restricted, I had a relatively limited degree of control over Indian eco¬nomic resources. Since a time limit was imposed, many Indians were rushed—maybe even coerced—into “a system of organization with which they were unfamiliar.” Others found their powers limited. Many felt that the Government had pressed the democratic philosophy not too far and that it had not pressed it far enough or skillfully enough.
One of the major drawbacks of the Government was its na¬ïveté with respect to Indian cultures, customs, and laws. Cohen, for one, came to the New Deal believing that racial and ethnic tensions would disappear once class conflict was resolved. His daily encoun¬ters with Indian tribes taught him oth¬erwise. As early as 1935, Cohen admitted that American law repre¬sented not only the force of the state utilized by a dominant capitalist class, but also the force of the state utilized for the hegemony of cul¬ture. He wrote that the multiple meanings of legal concepts were tools in the hands of powerful lawmaking agencies. They gave a con¬cept one meaning when applied to one interest group, and another when applied to a different group. Recognizing, with pluralists, the incompleteness of human knowledge, Cohen urged the under¬standing of legal reality and the definition of legal rules as re¬flecting interrelated particular and collective interests.
The recognition of a multiplicity of value systems raised impor¬tant questions about the resolution of conflicts that could transpire between such systems. Like earlier discussions of political pluralism, socialist plural¬ism was premised on a categorical de¬scription of conflict as “a struggle over limited economic resources: employers against employees, corporations against labor unions, producers against consumers, and Indians against non-Indians”. The solution was universal and “scientific”: redistribution. It seldom meant more than a repositioning of two sides to a conflict. It ne¬glected to notice that interests were embedded in distinct legal and political systems. Given the multiplicity of cultures, groups, and forms of knowledge, it was unfeasible to as¬sume that one could provide a universal solution for diverse con¬flicts. By the late 1930s, Cohen articu¬lated an ideal of systematic pluralism, or what he labeled systematic relativism, as a model for realizing diverse interests. It was, in Cohen’s view, a “principle of logical tolerance.”
Legal change required not only the un¬derstanding of legal reality as a variety of interrelated particular and collective experiences, but also the reconstitution of different legal systems as broader and more inclusive. If different philosophical sys¬tems could be increased in scope to maintain common content, then the distinction between the meaning given to abstract concepts within each of them was one of degree—of emotions and attitudes— not of kind.
Traditional morality, with its focus on individual life presupposes a metaphysical dogma, i.e., “the dogma that the individual is an ultimate unity and society an ultimate plurality.” So¬cial balance, particularly the redistribution of wealth, was “preor¬dained to be unjust”. Cohen’s alternative was a “socialized morality”. By admitting that adjustment and integration of diverse in¬terests were possible, socialized morality made the normative endorsement of cultural pluralism less threatening. Cohen believed that the possibility of “a social inte¬gration of conflicting interests” is substantiated by the “integration of conflicting interests in an individual life”.
The central point of Cohen’s socialized morality was the rejection of individualism because individualistic theories resisted pluralism. Cohen wanted to guarantee that law favored solutions that encouraged the “flourishing of diverse social ideas, be¬liefs, and values”. He wanted law to promote solutions that would sus¬tain the individual as a “modern social being in a pluralistic society”. Every law should be examined in light of its “ef¬fects on the enterprise of social integration”. His theory of systematic pluralism required a re-examination of “the legal relations that have served to bind to¬gether in common cause and common effort peoples of different races, different creeds, different social structures, and different ways of life”.
Cohen’s systematic pluralism was an attempt to articulate “a uni¬versal ideal (a common cause) that would include all particular sys¬tems of reference”. It accepted cultural pluralism, “but rejected separa¬tism, that is, the idea that different cultures were detached from each other”. It opposed the “forced assimilation of all cultural systems into one, but envisioned all systems becoming one”.
The heart of our democ¬ratic institutions is “an asserted right (of individuals and groups) to be immune from racial discrimination”. The “right to be immune from racial discrimination by governmental agencies” is an es¬sential part of the fabric of democratic government in the United States.
With the rise of totalitarianism in Europe, many liberals were moving toward “rights consciousness”. Cohen, who never disavowed his socialist convictions, adopted “a collective (or group), rather than an individualistic, conception of rights”. His systematic pluralism focused on the possibility that “any given value system could be ex¬panded to encompass other value systems”.
Human equality is grounded in the celebration of human differences. The state was not a neutral night-watchman but is charged with the “affirmative protection of group rights”.
Cohen focused on the expansion of systems and held that system¬atic pluralism was premised on the plausibility of “universal solu¬tions”. It admitted the particularity of different systems, but sug¬gested that “distinctions disappeared once all systems grew more in¬clusive, ultimately becoming one”.
Like his ideal of “systematic pluralism”, Cohen’s “comparative plu¬ralism” embraced the plurality of value systems, but rather than forc¬ing them into one encompassing mass, it focused on the possibility of “communication, dialogue, and translation between and among dis¬tinct systems”. Individuals should be allowed not only “to uncover the inarticulate value premises” of themselves and of others, but also “to understand the similarities and dissimi¬larities that exist between any two value perspectives,” and thus to become more tolerant of “cultural diversities.”
Later in his life, Cohen recognized that throughout American history, Indians were neither slaves nor vic¬tims; they were active agents, indeed sovereign peoples, with histo¬ries, traditions, and legal systems of their own, coexisting with the American system. They accepted the presence of non-Indians, they were capable of dealing with them, and they protected their own in¬terests. In Cohen’s opinion, the fact that Indians were able to deal with American settlers also suggested that dialogue and translation between different systems were possible—that comparative plural¬ism was feasible.
Interest group pluralism sought to evade the pluralist dilemma, that is, the need to determine the normative limits of a commitment to pluralism. On the one hand, to allow the state to exercise power over diverse groups risked imposing one’s own, concededly partial in¬terests and beliefs, in the name of a general, public good. On the other hand, the alternative of deferring to groups risked moral rela¬tivism, maybe even nihilism. Oliver Wendell Holmes challenged the description of law as a body of natural and neutral rules. Legal scholars have struggled with this dilemma. In the 1950s, interest group pluralism and the legal process school found refuge in creating conceptions of “neutral processes in which different groups supposedly interact, compete, and trade ends”. More recently, critical legal studies, the new institutional economics, and feminist legal theory have sought “to direct legal discourses toward substance and away from process”. The current resurgence of for¬malism keeps the debates alive.
Prof. Tsuk defines “pluralism” as “a commitment to devising a plural polity” and “ideology” as “the structure of ideas and beliefs—about right and wrong, about the meaning of democracy, about the goals of national policy—that influences an actor’s understanding of reality.”
She starts with the concept of “self-determination” by observing that “legal scholars and policymakers are today attempting to develop legal mechanisms that would accommodate the unique interests of particular groups, while also mediating and settling potential conflicts and tensions be¬tween individuals, groups, and peoples.”
The term “pluralism” is often associated with “process theories of democracy”, which seeks to create a conception of a “neutral political proc¬ess” in which different groups interact, com¬pete, or trade ends.
Theories of pluralism often recognized diversity not merely as an empirical fact, something that we must tolerate grudgingly or try to reduce, but as a “constitutive element of American democracy”. The extent to which laws and policies sought to accommo¬date and promote diverse group interests, beyond the sheer recogni¬tion of their existence, reflected a nation’s commitment to democratic values.
There are three models of pluralism: “socialist plural¬ism,” “systematic pluralism,” and “comparative pluralism.”
The author discussed the US federal Indian policy during the 1930s and 1940s, a period commonly labeled the “Indian New Deal.” The historical agent is Felix Solomon Cohen, who was the chief legal architect of federal Indian policy during the New Deal and who is also recognized today as one of the most important legal philosophers in the first half of the twentieth century.
Federal Indian policy at the turn of the twentieth century sought to break down tribal organization and force all Indians to assimilate, particularly through the distribution of communal lands to individ¬ual owners. The essence of the Indian New Deal was to stop allotment and assimilation by delegating to Indian tribes more authority over their economic, so¬cial, cultural, and political affairs.
Pluralism insists on the “plurality of things, as given in experience”, and on the “impossibility of a single law to traverse all the various domains of being”. A pluralist theory of knowledge insists on the “multiplicity (whether limited or infinite) of knowers in the world and various forms of knowledge or truth, none of which could claim epistemological primacy.” Plu¬ralism implies the existence of “a variety of competing ends, among which policymakers had to choose”.
Pluralism had much in common with pragmatism. Both ap¬proaches substitute empiricism, particularism, indeterminacy, and uncertainty for rationalism, universalism, determinacy, and cer¬tainty. Pragmatism emphasizes that the understanding of reality is mediated through experience. It was a theory of truth that sought to redefine reality according to experience. Pluralism focuses on the complex nature of reality. Not only is our conception of reality mediated through our individual experiences—as pragmatism suggested—but reality is also, for each one of us, one and many at the same time.
Pluralism’s focus on the “relationship between the one and the many” appealed to progressive thinkers. It offered a way out of the “tension between conservative individualism, on the one hand, and radical collectivism, on the other”.
Cultural pluralists seek legal mechanisms “that would accommodate the distinct heritages of diverse cultural groups”. Political pluralists strive “to empower distinct associations by recognizing their sovereignty, however limited”. Pluralism is “the midway between radical collectivism, on the one hand, and conservative individual¬ism, on the other”. Marching under the banner of “cultural self-determination” or that of “self-government,” advocates of pluralism pledge “a strong commitment to group autonomy”.
In the case of American Indians, the author stated that throughout the nineteenth and early twentieth centuries, Indian tribes were “at the outer boundaries of American society”. Until the mid-nineteenth century, white settlers sought mainly “to push Indian tribes westward and made no attempt to integrate the tribes into Anglo-American society”. Unlike other minority groups, Indian tribes were regarded as “distinct political communities” with limited sover¬eignty. Their efforts to maintain their tribal organization, however, often proved futile in the face of “military con¬quest, fraudulent or unfulfilled treaties, and the pressure of white settlement that forced them away from most of their lands”. Begin¬ning in the 1850s, Indians were “forced onto reservations”.
Beginning in the 1870s, government officials stressed the “need to assimilate all Indians into the mainstream of American life”. The General Allotment Act of 1887 (the Dawes Act), which articulated the “new policy of as¬similation”, targeted the tribes’ communal holding of property. The Act equated freedom with “individual possession of property”. It sought to force assimilation and the disintegration of tribal organization, particularly through the “distribution of commu¬nal lands to individual owners”. The Act was meant “to force Indians to cease their tribal ways, to be¬come individual farmers on small plots of lands, and thus to open the remainder of U.S. Indian reservations to non-Indian use.” The turn of the twentieth century thus witnessed the “reduction of many tribal governments from unalloyed internal sovereigns to virtual nonenti¬ties.”
A series of laws passed during the first decades of the century added insult to injury: they sought to enhance Indian assimilation, first by giving individual Indians their “pro rata share” of tribal funds and then by giving them “American” citizenship, e.g. the 1907 Lacey Act, the 1917 “Sells Declaration”, the 1919 Citizenship for World War I Veterans Act, the Snyder Act of 1921, the 1924 Indian Citizenship Act. To be citizens of the United States, Indians were pre¬sumably welcomed into the polity “but only as long as they relin¬quished their old ways.”
The author stated that the results were disastrous. The 1928 Meriam Report described “poverty, disease, suffering, and discontent” among Indians. Between 1887 and 1932 almost two-thirds of what remained of Indian lands were lost to white exploitation. Many Indians were theoretically in possession of considerable property, including land, but were, in reality, paupers. Few became successful farmers or ranchers, a fact that helped to deepen social and political divisions on the reservations. The distri¬bution of tribal lands also hastened the disintegration of many tribal governments or at least forced them to alter their traditional struc¬tures. Assimilation was never really even offered. The Indians were “given” citizenship but denied the rights of citizens, including the right to vote, access to local schools, and the right to serve on ju¬ries.
With the coming to power of the New Deal administration, federal Indian policy was ripe for change. Shortly after his appointment in the spring of 1933, John Collier—the new Commissioner of Indian Affairs—denounced land allotment as “a violation of tribal sovereignty and the vested rights that Indians had secured in previous treaties in return for much of their lands”. Collier pledged instead the moral and legal obligation of the government “to stop land allotment and to act upon the bilateral contractual relationship that it had created before 1871 with Indian tribes”.
Cohen suggested that the task of the new ad¬ministration was to stop the pressing of “capitalist individualism” on Indian tribes “through the allotment of tribal property to individual Indians and through the inculcation of the capitalist psychology,” and instead, to protect and encourage “a communal ceremony.”
Cohen be¬lieved that “with respect to Indian tribes, capitalism itself was op¬pressive”. He believed that “to leave Indian tribes to compete with business corpora¬tions in a supposedly noncoercive world, he asserted, was as encum¬bering as the control of their affairs by the bureaucracy”. Cohen argued: “We shall not add to the Indian’s freedom by accepting the shallow arguments of those who insist that the Indian will be free when he is given his own indi¬vidual property, [and] permitted to live under state laws and enjoy freedom of contract,” Cohen proclaimed… The termination of gov¬ernmental control would not inaugurate Indian free¬dom. It would only exchange the slavery of bureaucracy for the slav¬ery of poverty.”
What, then, was a solution that served Indian interests? Accord¬ing to Cohen, in order to protect the economic and political interests of Indian tribes, the Government had “to establish self-governing socialist communities on Indian reservations”. Cohen suggested that “through the mechanism of municipal and quasi-municipal charters issued by the Secretary of the Interior to Indian tribes and ratified by the Indians concerned,” Indian tribes would establish their self-government.
Cohen believed that the “incorporation” of Indian tribes would prevent future loss of Indian lands and allow the repurchase of res¬ervation lands already lost to non-Indians. He further maintained that the government should provide Indians with the credit facilities they needed to develop their own properties and should encourage communal holding of lands and other resources that could not be effi¬ciently used by individuals. Ultimately, the various political and economic powers, which were in 1934 invested in the Department of the Interior, were to be transferred to their true “owners”—the Indi¬ans. Through the establishment of “definite community ordinances” and community courts, as well as a special Federal Court of Indian Affairs, Cohen also expected an important shift toward legal stability and political advancement. When all that was secured, he pre¬dicted, the powers of the Government to govern tribal affairs could be entirely abolished. Genuine socialist communities would then flourish on Indian reservations.
Cohen’s program for reform “was informed by earlier theories of political pluralism, particularly Harold Laski’s, and by the legal realists’ view of law as an apology for political (social and economic) oppression”. He urged the “distribution of sovereignty to all associa¬tions, including labor unions, trade unions, industrial unions, con¬sumer organizations, farm organizations, semigovernmental corpora¬tions, and forms of associations that have not yet been invented.” Sovereignty was conditioned, however, upon a group’s “willingness to be democratically governed and, if possible, to adopt an economic structure premised on communal holding of property”. He envisioned “self-governing communities such as labor unions as the foundation of American democracy”.
The author stated that in 1937, Louis Jaffe argued that if groups were sovereign, they were also lawmaking entities and the state lost its absolute power as an exclusive producer of a singular system of national law. Cohen rejected it. As a socialist, he feared that “without centralized planning, free competition between corporations and labor unions would benefit the former at the expense of the lat¬ter”. Cohen’s approach was premised on a “strong commitment to governmental (socialist) planning”. He believed that “national plan¬ning was required not only to coordinate the plans of different self-governing associations, to balance production and consumption, and to distribute wealth and income, but also to protect fundamental in¬dividual rights.”
The establishment of modern governments, modeled after municipal and housing corporations and subject to the supervision of the Government, was the only alternative to assimilation. Cohen maintained that consulting the Indians was vital “to awaken sympathetic understanding among those most directly concerned with this policy.” Critical of earlier attempts to “impose capitalist individualism on Indian reservations”, Cohen failed to recognize that the structure he preferred “was a cultural product, too, and not necessarily suitable for the customs and tradi¬tions of Indian tribes”. Ironically, Cohen, who as an intellectual cele¬brated pluralism and as a Jewish American rejected assimilation. At any rate, he hoped to create “a single economic, if not also political, structure on Indian reservations”.
In general, the Government fell short of most of its political and economic aims. It stopped allotment, but since the transfer of lands from indi¬vidual to tribal ownership was voluntary, and as appropriations for land consolidation and purchases were restricted, I had a relatively limited degree of control over Indian eco¬nomic resources. Since a time limit was imposed, many Indians were rushed—maybe even coerced—into “a system of organization with which they were unfamiliar.” Others found their powers limited. Many felt that the Government had pressed the democratic philosophy not too far and that it had not pressed it far enough or skillfully enough.
One of the major drawbacks of the Government was its na¬ïveté with respect to Indian cultures, customs, and laws. Cohen, for one, came to the New Deal believing that racial and ethnic tensions would disappear once class conflict was resolved. His daily encoun¬ters with Indian tribes taught him oth¬erwise. As early as 1935, Cohen admitted that American law repre¬sented not only the force of the state utilized by a dominant capitalist class, but also the force of the state utilized for the hegemony of cul¬ture. He wrote that the multiple meanings of legal concepts were tools in the hands of powerful lawmaking agencies. They gave a con¬cept one meaning when applied to one interest group, and another when applied to a different group. Recognizing, with pluralists, the incompleteness of human knowledge, Cohen urged the under¬standing of legal reality and the definition of legal rules as re¬flecting interrelated particular and collective interests.
The recognition of a multiplicity of value systems raised impor¬tant questions about the resolution of conflicts that could transpire between such systems. Like earlier discussions of political pluralism, socialist plural¬ism was premised on a categorical de¬scription of conflict as “a struggle over limited economic resources: employers against employees, corporations against labor unions, producers against consumers, and Indians against non-Indians”. The solution was universal and “scientific”: redistribution. It seldom meant more than a repositioning of two sides to a conflict. It ne¬glected to notice that interests were embedded in distinct legal and political systems. Given the multiplicity of cultures, groups, and forms of knowledge, it was unfeasible to as¬sume that one could provide a universal solution for diverse con¬flicts. By the late 1930s, Cohen articu¬lated an ideal of systematic pluralism, or what he labeled systematic relativism, as a model for realizing diverse interests. It was, in Cohen’s view, a “principle of logical tolerance.”
Legal change required not only the un¬derstanding of legal reality as a variety of interrelated particular and collective experiences, but also the reconstitution of different legal systems as broader and more inclusive. If different philosophical sys¬tems could be increased in scope to maintain common content, then the distinction between the meaning given to abstract concepts within each of them was one of degree—of emotions and attitudes— not of kind.
Traditional morality, with its focus on individual life presupposes a metaphysical dogma, i.e., “the dogma that the individual is an ultimate unity and society an ultimate plurality.” So¬cial balance, particularly the redistribution of wealth, was “preor¬dained to be unjust”. Cohen’s alternative was a “socialized morality”. By admitting that adjustment and integration of diverse in¬terests were possible, socialized morality made the normative endorsement of cultural pluralism less threatening. Cohen believed that the possibility of “a social inte¬gration of conflicting interests” is substantiated by the “integration of conflicting interests in an individual life”.
The central point of Cohen’s socialized morality was the rejection of individualism because individualistic theories resisted pluralism. Cohen wanted to guarantee that law favored solutions that encouraged the “flourishing of diverse social ideas, be¬liefs, and values”. He wanted law to promote solutions that would sus¬tain the individual as a “modern social being in a pluralistic society”. Every law should be examined in light of its “ef¬fects on the enterprise of social integration”. His theory of systematic pluralism required a re-examination of “the legal relations that have served to bind to¬gether in common cause and common effort peoples of different races, different creeds, different social structures, and different ways of life”.
Cohen’s systematic pluralism was an attempt to articulate “a uni¬versal ideal (a common cause) that would include all particular sys¬tems of reference”. It accepted cultural pluralism, “but rejected separa¬tism, that is, the idea that different cultures were detached from each other”. It opposed the “forced assimilation of all cultural systems into one, but envisioned all systems becoming one”.
The heart of our democ¬ratic institutions is “an asserted right (of individuals and groups) to be immune from racial discrimination”. The “right to be immune from racial discrimination by governmental agencies” is an es¬sential part of the fabric of democratic government in the United States.
With the rise of totalitarianism in Europe, many liberals were moving toward “rights consciousness”. Cohen, who never disavowed his socialist convictions, adopted “a collective (or group), rather than an individualistic, conception of rights”. His systematic pluralism focused on the possibility that “any given value system could be ex¬panded to encompass other value systems”.
Human equality is grounded in the celebration of human differences. The state was not a neutral night-watchman but is charged with the “affirmative protection of group rights”.
Cohen focused on the expansion of systems and held that system¬atic pluralism was premised on the plausibility of “universal solu¬tions”. It admitted the particularity of different systems, but sug¬gested that “distinctions disappeared once all systems grew more in¬clusive, ultimately becoming one”.
Like his ideal of “systematic pluralism”, Cohen’s “comparative plu¬ralism” embraced the plurality of value systems, but rather than forc¬ing them into one encompassing mass, it focused on the possibility of “communication, dialogue, and translation between and among dis¬tinct systems”. Individuals should be allowed not only “to uncover the inarticulate value premises” of themselves and of others, but also “to understand the similarities and dissimi¬larities that exist between any two value perspectives,” and thus to become more tolerant of “cultural diversities.”
Later in his life, Cohen recognized that throughout American history, Indians were neither slaves nor vic¬tims; they were active agents, indeed sovereign peoples, with histo¬ries, traditions, and legal systems of their own, coexisting with the American system. They accepted the presence of non-Indians, they were capable of dealing with them, and they protected their own in¬terests. In Cohen’s opinion, the fact that Indians were able to deal with American settlers also suggested that dialogue and translation between different systems were possible—that comparative plural¬ism was feasible.
Interest group pluralism sought to evade the pluralist dilemma, that is, the need to determine the normative limits of a commitment to pluralism. On the one hand, to allow the state to exercise power over diverse groups risked imposing one’s own, concededly partial in¬terests and beliefs, in the name of a general, public good. On the other hand, the alternative of deferring to groups risked moral rela¬tivism, maybe even nihilism. Oliver Wendell Holmes challenged the description of law as a body of natural and neutral rules. Legal scholars have struggled with this dilemma. In the 1950s, interest group pluralism and the legal process school found refuge in creating conceptions of “neutral processes in which different groups supposedly interact, compete, and trade ends”. More recently, critical legal studies, the new institutional economics, and feminist legal theory have sought “to direct legal discourses toward substance and away from process”. The current resurgence of for¬malism keeps the debates alive.
Friday, November 7, 2008
Delay
In the very recent case of ATTY. RAUL H. SESBREÑO vs. JUDGE IRENEO L. GAKO, JR., EN BANC, A.M. No. RTJ-08-2144, (Formerly OCA IPI No. 06-2417-RTJ, November 3, 2008, the Philippine Supreme Court reiterated the disciplinary consequences of delays caused by the inefficiency and laziness of trial judges.
It imposed a fine on respondent Judge IRENEO L. GAKO, JR. in the amount of P30,000.00 for undue delay in rendering a decision/resolution and violation of Court directives, the said amount to be deducted from his withheld retirement benefits.
The Philippine Constitution mandates all lower courts to decide or resolve cases or matters within three (3) months from their date of submission.
Rules 1.02 of Canon 1 and 3.05 of Canon 3 of the Code of Judicial Conduct direct judges to administer justice impartially and without delay and to dispose of the court’s business promptly and decide cases within the required periods.
SC Administrative Circular No. 13-87 provides:
3. Judges shall observe scrupulously the periods prescribed by Article VIII, Section 15 of the Constitution for the adjudication and resolution of all cases or matters submitted in their courts. Thus, all cases or matters must be decided or resolved within twelve months from date of submission by all lower collegiate courts while all other lower courts are given a period of three months to do so. x x x.
Furthermore, SC Administrative Circular No. 1-88 states:
6.1 All Presiding Judges must endeavor to act promptly on all motions and interlocutory matters pending before their courts. x x x.
The respondent judge failed to act on a Motion for Reconsideration within three (3) months from the time said motion was submitted for resolution. His claim that the motion was not filed by the proper party is not a valid excuse to simply ignore said motion. Instead, he should have accordingly formally disposed of such motion. While it is true that respondent judge issued an Order voluntarily inhibiting himself from handling the case, it does not appear on record that the Executive Judge was furnished with a copy of the said order for appropriate action. Respondent judge cannot also justify his inaction by his inhibition since if it was really his intention to refrain from handling the case, he should not have acted on the subsequent Motion for Clarification/Reconsideration filed by the heirs of Patrocino Borromeo Herrera.
All told, the unreasonable delay of the respondent judge in resolving the motion submitted for his resolution clearly constituted a violation of complainant’s constitutional right to a speedy disposition of his case. Having failed to resolve the Motion for Reconsideration within the prescribed period of time, respondent judge is liable for undue delay in resolving a decision or order which is considered a less serious offense.
Regarding the charge of incompetency, it should be stressed that the duties and responsibilities of a judge are not strictly confined to judicial functions. He is also an administrator who must organize his court with a view to prompt and convenient dispatch of its business. As administrative officer of the Court, respondent judge should have required his clerk of court or any other court personnel to secure all the records of the case and keep the same intact although some of the volumes thereof would not be used in deciding the case. A judge is duty-bound to motivate his subordinates for the effective performance of the functions and duties of his office. In fact, the imperative and sacred duty of each and everyone in the court is to maintain its good name and standing as a temple of justice. Hence, any conduct, act or omission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary, shall be condemned and cannot be countenanced.
The respondent judge should also be held liable for failure to obey directives from the Office of the Court Administrator. As borne by the records, the two directives of the OCA, namely the 1st Indorsement dated January 19, 2006 and the 1st Tracer dated March 30, 2006, were received by respondent judge on February 9, 2006 and April 17, 2006, respectively. Still, he contumaciously refused to submit his comment. It was only upon the issuance by this Court of a Resolution dated January 24, 2007 directing him to show cause why he should not be administratively dealt with for refusing to submit his comment that respondent judge finally complied.
The Court found the explanation of respondent judge that he suffered a mild stroke to be insufficient to exonerate him, although it may mitigate his liability. While he may have been suffering from some ailment, he failed to show that it totally incapacitated him from complying with the lawful orders of the OCA. The failure of respondent judge to comply with the OCA’s directives to file comment to the letter-complaint against him manifested his indifference to the lawful directives of the Court.
A resolution of the Supreme Court requiring comment on an administrative complaint against officials and employees of the judiciary should not be construed as a mere request from the Court. Nor should it be complied with partially, inadequately or selectively. Respondents in administrative complaints should comment on all accusations or allegations against them in the administrative complaints because it is their duty to preserve the integrity of the judiciary. Moreover, the Court should not and will not tolerate future indifference of respondents to administrative complaints and to resolutions requiring comment on such administrative complaints.
A judge’s delay in rendering a decision or order and (2) failure to comply with this Court’s rules, directives and circulars constitute less serious offenses under Rule 140, Section 9 of the Rules of Court:
SEC. 9. Less Serious Charges. – Less serious charges include:
1. Undue delay in rendering a decision or order, or in transmitting the records of a case;
xxx xxx xxx
4. Violation of Supreme Court rules, directives and circulars;
Section 11(B) of said Rule 140 provides the following sanctions for less serious offenses:
SEC. 11. Sanctions.
B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed:
1. Suspension from office without salary and other benefits for not less than one (1) month nor more than three (3) months; or
2. A fine of more than P10,000.00 but not exceeding P20,000.00.
It imposed a fine on respondent Judge IRENEO L. GAKO, JR. in the amount of P30,000.00 for undue delay in rendering a decision/resolution and violation of Court directives, the said amount to be deducted from his withheld retirement benefits.
The Philippine Constitution mandates all lower courts to decide or resolve cases or matters within three (3) months from their date of submission.
Rules 1.02 of Canon 1 and 3.05 of Canon 3 of the Code of Judicial Conduct direct judges to administer justice impartially and without delay and to dispose of the court’s business promptly and decide cases within the required periods.
SC Administrative Circular No. 13-87 provides:
3. Judges shall observe scrupulously the periods prescribed by Article VIII, Section 15 of the Constitution for the adjudication and resolution of all cases or matters submitted in their courts. Thus, all cases or matters must be decided or resolved within twelve months from date of submission by all lower collegiate courts while all other lower courts are given a period of three months to do so. x x x.
Furthermore, SC Administrative Circular No. 1-88 states:
6.1 All Presiding Judges must endeavor to act promptly on all motions and interlocutory matters pending before their courts. x x x.
The respondent judge failed to act on a Motion for Reconsideration within three (3) months from the time said motion was submitted for resolution. His claim that the motion was not filed by the proper party is not a valid excuse to simply ignore said motion. Instead, he should have accordingly formally disposed of such motion. While it is true that respondent judge issued an Order voluntarily inhibiting himself from handling the case, it does not appear on record that the Executive Judge was furnished with a copy of the said order for appropriate action. Respondent judge cannot also justify his inaction by his inhibition since if it was really his intention to refrain from handling the case, he should not have acted on the subsequent Motion for Clarification/Reconsideration filed by the heirs of Patrocino Borromeo Herrera.
All told, the unreasonable delay of the respondent judge in resolving the motion submitted for his resolution clearly constituted a violation of complainant’s constitutional right to a speedy disposition of his case. Having failed to resolve the Motion for Reconsideration within the prescribed period of time, respondent judge is liable for undue delay in resolving a decision or order which is considered a less serious offense.
Regarding the charge of incompetency, it should be stressed that the duties and responsibilities of a judge are not strictly confined to judicial functions. He is also an administrator who must organize his court with a view to prompt and convenient dispatch of its business. As administrative officer of the Court, respondent judge should have required his clerk of court or any other court personnel to secure all the records of the case and keep the same intact although some of the volumes thereof would not be used in deciding the case. A judge is duty-bound to motivate his subordinates for the effective performance of the functions and duties of his office. In fact, the imperative and sacred duty of each and everyone in the court is to maintain its good name and standing as a temple of justice. Hence, any conduct, act or omission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary, shall be condemned and cannot be countenanced.
The respondent judge should also be held liable for failure to obey directives from the Office of the Court Administrator. As borne by the records, the two directives of the OCA, namely the 1st Indorsement dated January 19, 2006 and the 1st Tracer dated March 30, 2006, were received by respondent judge on February 9, 2006 and April 17, 2006, respectively. Still, he contumaciously refused to submit his comment. It was only upon the issuance by this Court of a Resolution dated January 24, 2007 directing him to show cause why he should not be administratively dealt with for refusing to submit his comment that respondent judge finally complied.
The Court found the explanation of respondent judge that he suffered a mild stroke to be insufficient to exonerate him, although it may mitigate his liability. While he may have been suffering from some ailment, he failed to show that it totally incapacitated him from complying with the lawful orders of the OCA. The failure of respondent judge to comply with the OCA’s directives to file comment to the letter-complaint against him manifested his indifference to the lawful directives of the Court.
A resolution of the Supreme Court requiring comment on an administrative complaint against officials and employees of the judiciary should not be construed as a mere request from the Court. Nor should it be complied with partially, inadequately or selectively. Respondents in administrative complaints should comment on all accusations or allegations against them in the administrative complaints because it is their duty to preserve the integrity of the judiciary. Moreover, the Court should not and will not tolerate future indifference of respondents to administrative complaints and to resolutions requiring comment on such administrative complaints.
A judge’s delay in rendering a decision or order and (2) failure to comply with this Court’s rules, directives and circulars constitute less serious offenses under Rule 140, Section 9 of the Rules of Court:
SEC. 9. Less Serious Charges. – Less serious charges include:
1. Undue delay in rendering a decision or order, or in transmitting the records of a case;
xxx xxx xxx
4. Violation of Supreme Court rules, directives and circulars;
Section 11(B) of said Rule 140 provides the following sanctions for less serious offenses:
SEC. 11. Sanctions.
B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed:
1. Suspension from office without salary and other benefits for not less than one (1) month nor more than three (3) months; or
2. A fine of more than P10,000.00 but not exceeding P20,000.00.
Lawyer speech
I chanced upon Prof. Erwin Chemerinskly’s lecture given some years back on the recurring constitutional and ethical issues involving “lawyer speech under the First Amendment”. He proposes a liberal view of lawyer speech. I wish to summarize and discuss its salient points, for purposes of legal research of the visitors of this blog.
In most high profile cases, judges have imposed gag orders on the attorneys and parties precluding them from speaking with the press. Additionally, new rules have been adopted restricting lawyer speech. For instance, California has adopted a rule which prohibits attorneys from making statements that have a “substantial likelihood of materially prejudicing an adjudicatory proceeding.” At the same time, attorneys often find themselves the subject of disciplinary action for their speech critical of judges. In 1998, the US District Court in California proposed that attorneys should be subject to discipline for any false statement impugning a judge.
These restrictions came at a time when there was an increased demand for attorneys to talk to the press. The lessons the media learned from the O.J. Simpson case were that trials made great television and that there was a large audience for high publicity cases. As the media increasingly followed high profile cases, there was ever greater pressure on lawyers to talk with the press. Judges and bar disciplinary authorities were responding by cracking down and trying to limit lawyer speech.
Prof. Chemerinskly’s concluded that “lawyers should be prohibited only from making statements that they know to be false or that are made with reckless disregard of the truth.” He stated that “false speech serves little First Amendment purpose and there is no reason to constitutionally protect expression that is uttered with knowledge that it is false”. He added: “Otherwise, however, all attorney speech about pending cases should be unregulated, both by rules of professional conduct and by court orders.”
He argued that lawyer speech was desirable. Lawyers have First Amendment rights and requiring attorneys to relinquish them as a condition of membership in the bar should be viewed as an unconstitutional condition. A lawyer’s duty to “zealously represent a client” often is best served by the attorney speaking to the press. “Attorney speech about pending cases can advance the interests of the client and the justice system”, he stared. He added that “attorney speech about pending cases and about courts should be regarded as political speech protected by the core of the First Amendment. Restrictions should be tolerated only if strict scrutiny is met.”
There are questions as to whether the “clear and present danger test” or some less protective approach should be followed. It seems that no one has advocated that attorneys be subject to discipline “only if it is proven, with clear and convincing evidence, which an attorney made a statement knowing it to be false or with reckless disregard of the truth.” Prof. Chemerinskly’s claims that it is the best standard “because it is the most protective of speech, it is not vague or overbroad, it serves the goal of preventing the speech most likely to cause harm, and it has the virtue of a large body of case law defining it.”
Judges understandably want to control the cases before them and wish that all else would go away. Gag orders give them at the least the sense of more control. But all of this ignores the First Amendment and the strong presumption that more speech is better, that rarely is the public interest served by government-enforced silence, and that the best remedy usually is more speech not less, he argues.
The American rule is that “political speech–speech about government and government officials–is protected by the very core of the First Amendment.” Debate on public issues should “be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Government may restrict speech about government and government officials “only if strict scrutiny is met.”
Courts are a part of the government; therefore, court proceedings are government action. Therefore, attorney speech about what is pending or occurring in a court is political speech. Any speech about a judge or a judge’s rulings fits squarely within the First Amendment.
In addition, strict scrutiny is appropriate because regulations, whether as rules of professional conduct or as gag orders, are “content-based restrictions on speech.” Model Rule 3.6 is explicitly content-based. It provides:
“A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”
The exceptions are: a lawyer may state a claim, offense, or defense involved; information contained in a public record; an investigation is in progress; and a warning of danger concerning the behavior of the person involved. Speech is allowed under the rule if its content fits within the exceptions, otherwise it is prohibited.
The court orders on attorneys limiting speech in particular cases are content-based because their application depends entirely on the topic of the speech. The US rule is that “content-based regulations are presumptively invalid and must meet strict scrutiny, while content-neutral regulation only need meet intermediate scrutiny.”
The rules of professional conduct regulating attorney speech and gag orders on lawyers should be allowed only if strict scrutiny is met. Gag orders should also merit strict scrutiny because they are a “prior restraint on speech.” The US Supreme Court has held that “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.”
Prior restraints are regarded as particularly undesirable because they prevent speech from ever occurring. Prof. Chemerinskly’s argued: “A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.”
The common public perception is that attorney speech about pending cases serves little, if any, useful purpose and that it likely is just a reflection of the lawyer’s desire to use the case for personal fame and profit. Some people declare that lawyers need not say anything to the press to represent their clients effectively.
Prof. Chemerinskly’s disagrees and contends that there are times that effective representation of a client requires statements to the press. First, countering adverse publicity in the media often may require statements to the media. A lawyer cannot take the chance that media publicity has no impact and should counter adverse publicity concerning his or her client.
The First Amendment can tolerate restrictions of speech only if the harm of the expression is proven, while the attorney should always speak out and counter potentially harmful publicity unless the harm is clearly trivial, he added. If there is no gag order and one side is speaking to the press, the other should be able to counter.
The opposition to the above argument is that the better approach would be to silence both sides, as judges have done in most of the high profile cases. But this violates the First Amendment unless strict scrutiny is met. Moreover, it does not solve the problem because gagging attorneys does not prevent publicity that might be adverse to one side or the other. Leaks of information are frequent in high profile cases. Such leaks are virtually impossible to stop.
Even if no attorney or participant in the case ever spoke to the media, there would still be intense coverage of high profile cases. Such media publicity can be adverse to one side or the other and may include false, damaging information. Unless the adverse speech can be answered, there is danger of the public having a false and unfair impression. In such circumstances, attorneys can and should speak out on behalf of their clients, Prof. Chemerinskly’s argues.
Similarly, at times attorneys must speak out to protect their clients’ reputations. He argues that a client who is never prosecuted, or who is prosecuted and acquitted, may have been ill-served by a lawyer who allowed public speculation about his guilt to go unchallenged.
Attorney speech to the media may help to gather crucial evidence. Police and prosecutors may want to speak to the press to gain public assistance in locating witnesses and other evidence. Defense lawyers also often benefit from the public coming forward in response to media publicity.
Attorney statements to the media might help encourage settlement. If an attorney or a surrogate point out weaknesses in the other side’s case, settlement might become more likely. The press provides leverage in cases that are publicly embarrassing to the opposition. By convincing the defense that the matter will be on the front page many more times, a plaintiff’s lawyer can raise a case’s settlement value’ and hasten its conclusion. There is an important public benefit to such private gains. The Supreme Court has emphasized the great benefit to the legal system of settlements and the avoidance of trials.
Clients have interests that transcend a particular case. They seek to use the legal system to reform the law. A plaintiff may bring a lawsuit to challenge an abusive practice. Publicity can be crucial in bringing the abuses to light. More generally, a client may want to use the media attention to educate the public about an issue.
Such public discussion of important social issues has obvious benefits. Attorney speech can foster and direct the dialogue. The legal system often is and should be used to reform society, and publicity can help further the client’s cause and the public’s interest.
At times, attorneys should speak out to generate media interest in their cases with the hope that the public scrutiny will cause judges to be more careful and fair. Some lawyers organize publicity campaigns because they believe that in a divided city, their clients would face unfair prejudice in the courtroom without such a ‘public defense.’” Sometimes the campaigns pay off and significantly influence the trial judges by making them extremely conscious of public scrutiny and of being and appearing to be fair and even-handed, thus, helping ensure that the defendants would receive their fair share of discretionary rulings.
Attorney speech often serves to advance the interests of the client and the interests of society. It is part of the duty of zealous representation.
The question that arises is: Since attorneys are officers of the court, should they be entitled to less free speech protection than others in society.
Some feel that gag orders are particularly justified when applied to lawyers and court personnel because officers of the court have a fiduciary responsibility not to prejudice fair trials and because they have special access to information and a professional responsibility not to thwart a fair judicial process. They argue that collaboration between counsel and the press as to information affecting the fairness of criminal trials is not only subject to regulation but is highly censurable and worthy of disciplinary measures.
There are US Supreme Court rulings holding that restrictions on lawyers should receive less than strict scrutiny. As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will rebound to the detriment of the accused or that will obstruct the fair administration of justice. The State has a substantial interest in preventing officers of the court, such as lawyers, from imposing the adverse effects of pretrial publicity on the judicial system and on the litigants. Attorneys can be subjected to discipline for criticizing judges because the Constitution does not give attorneys the same freedom as participants in a political debate.
Those who oppose such a view argue that the descriptive statement that attorneys are officers of the court does not justify the normative conclusion that a lesser standard of constitutional review should be used in reviewing restrictions on attorney speech. Even accepting the characterization that lawyers are officers of the court, that says nothing about the duties which are attendant to this role. The descriptive role of attorneys in a judicial system does not resolve the normative constitutional question as to when prior restraints on speech should be allowed. The unique position of lawyers, if anything, justifies more protection for their speech.
To the extent the press and public rely upon attorneys for information because attorneys are well-informed, this may prove the value to the public of speech by members of the bar. If the dangers of their speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent.
Attorneys’ duties to the court always must be assessed in the context of the lawyers’ duties to their clients. An attorney’s clients may be best served by their attorney speaking to the media. Unless there is proof that the court will be harmed by such attorney speech, the duty to clients deserves priority. The argument that attorneys deserve less protection of speech because they are officers of the court rests on the assumption that lawyers’ speech is in some way damaging to the judiciary. That assumption is unsupported. The damage to the legal system from attorney speech remains asserted but never proven.
Applying a lower level of scrutiny to restrictions of attorneys’ speech would be an unconstitutional condition on bar membership. Lawyers would be forced to relinquish First Amendment rights in exchange for their ticket to practice law. The “unconstitutional condition doctrine” is the principle that the government cannot condition a benefit on the requirement that a person forego a constitutional right. The central idea is that the “government may not deny a benefit to a person because he exercises a constitutional right.”
Conditioning a benefit on a requirement that individuals give up their First Amendment rights obviously pressures individuals to forego constitutionally protected speech. The condition “will have the effect of coercing the claimants to refrain from the proscribed speech. The unconstitutional condition doctrine prevents the government from penalizing those who exercise their constitutional rights by withholding a benefit that otherwise would be available.
Applying a lower level of scrutiny to content-based restrictions on attorney speech, as compared with the standard applied to content-based restraints on everyone else’s speech, would create an unconstitutional condition on the practice of law. Attorneys would be required to relinquish their speech rights in exchange for the ability to practice law.
The vast majority of states have adopted some form of the American Bar Association’s Model Rules of Professional Conduct. Rule 3.6(a) provides that “a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
The current US standard is that although attorney speech about pending cases is protected by the First Amendment, it can be punished if it poses a “substantial likelihood of materially prejudicing an adjudicatory proceeding”. A lawyer cannot argue that he should be subjected to discipline only if there is a “clear and present danger” to the fair administration of justice or that the “substantial likelihood” test does not sufficiently protect speech.
The current US jurisprudence is that attorneys are officers of the Court and thus are more subject to regulation of their speech than others. Their speech could pose a greater risk to the fair administration of justice. Because lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative. ‘Substantial likelihood of material prejudice’ standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials.
As to the other key form of restrictions on attorney speech, i.e., court orders preventing attorneys in a pending case from speaking publicly about it, it seems the US Supreme Court has not yet addressed the constitutionality of gag orders on lawyers and parties. In past cases, it considered the constitutionality of prior restraints on the press to protect a fair trial.
The belief is that there are many alternatives to gag orders on the press, including, changing venue, postponing the trial to allow public attention to subside, searching questioning of prospective jurors to screen out those with fixed opinions as to guilt or innocence, clear instructions to the jury as to what may be considered in reaching a verdict, sequestration of jurors, and orders limiting speech by attorneys.
Lower courts in USA have adopted different standards for when gag orders on lawyers and parties are constitutionally permissible. Some courts have said that such gag orders are allowed so long as they seem reasonably related to achieving a fair trial. They feel that proscription of certain extrajudicial communications by prospective witnesses is necessary in order to protect the rights of the defendants to a fair trial based solely on admissible evidence.
There is reasonable likelihood that due to the prejudicial news prior to trial the defendants would be denied a fair trial. The tremendous publicity attending a trial, the potentially inflammatory and highly prejudicial statements that could reasonably be expected from the parties, and the relative ineffectiveness of the considered alternatives, dictated the strong measure of suppressing speech of potential witnesses to ensure a fair trial.
The “reasonable likelihood standard” provides that a gag order on trial participants is constitutional if there is a reasonable likelihood of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial. It is a standard much lower that the clear and present danger test. Many lower courts in USA feel that the reasonable likelihood standard was appropriate in order to ensure a fair trial.
However, there are rare rulings which articulate “strict scrutiny” as the appropriate test for gag orders on trial participants because gag orders are seen as a prior restraint upon freedom of speech and expression. A gag order seals the lips of all parties concerned from discussing in any manner whatsoever the cases with members of the news media or the public. A gag order impairs the First Amendment right of the press to gather information. To justify imposition of a prior restraint, statements must pose a “clear and present danger”, or a “serious or imminent threat” to a protected competing interest and must be “narrowly drawn” and cannot be upheld if “reasonable alternatives” are available having a lesser impact on First Amendment freedoms.
A restrictive order involving a prior restraint upon First Amendment freedoms is “presumptively void” and may be upheld only on the basis of a clear showing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial. For such a prior restraint to be valid, the speech must pose a serious and imminent threat of a specific nature, the remedy for which can be narrowly tailored in an injunctive order. There must be a finding that less burdensome alternatives of voir dire, sequestration, or change of venue will not suffice to protect a fair trial.
For a gag order to be constitutional, it must meet three tests. First, the limitations on attorney speech should be “no broader than necessary” to protect the integrity of the judicial system and the defendant’s right to a fair trial. Second, the trial court must explore whether “other available remedies” would effectively mitigate the prejudicial publicity. Third, the trial court must give “proper notice” to all parties restrained and give each party the opportunity to be heard.
But some lower courts have rejected the argument that a gag order on trial participants should be regarded as prior restraints, because it does not involve a restriction on the dissemination of information by the press. It only limits the gathering of information by limiting the ability of the press to receive statements from lawyers.
The crucial flaw in this conclusion is that it focuses solely on the institutional press and ignores that gag orders directed at lawyers and parties are a prior restraint on their speech.
Several courts have enforced gag orders on lawyers via criminal contempt proceedings.
The law is unsettled as to when gag orders on trial participants are constitutional. This uncertainty is likely to remain until the US Supreme Court addresses the issue and articulates a standard.
The key question is whether these restrictions on lawyer speech meet “strict scrutiny”. Under strict scrutiny, the burden is on the government to prove that its action is necessary to achieve a compelling purpose.
The justification for the regulation on attorney speech is the need to ensure fair trials. There is no doubt that there is a compelling government interest in providing fair trials in both criminal and civil cases. In criminal cases, the Sixth Amendment, of course, guarantees defendants a right to a fair trial with an impartial jury. Moreover, due process requirements apply in both criminal and civil cases.
However, strict scrutiny cannot be met because restrictions on lawyer speech are not necessary to provide a fair trial. First, there is not sufficient evidence to prove that attorney speech jeopardizes fair trials so as to justify either the rules of professional conduct or gag orders. It is extremely unlikely that it ever can be shown that lawyer statements will pose a serious risk to a fair trial. There is little evidence that pretrial publicity actually jeopardizes fair trials and even less that attorney speech endangers fair judicial proceedings.
Only the occasional case presents a danger of prejudice from pretrial publicity. Empirical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it and base their verdict upon the evidence presented in court.
There is very little hard evidence that demonstrates that juries are prejudiced by trial publicity. Most studies that have examined the prejudicial effect of trial publicity on juries have been quite inconclusive. Scientific research has not revealed a strong connection between trial publicity of any sort and jury prejudice.
The experience of recent high profile cases belies the conclusion that extensive publicity makes an acquittal more difficult for the defense. In many recent cases that received extensive publicity, defendants were acquitted despite predictions that juries would be prejudiced against the defense by the media coverage. The cases might be seen as an indicator that juries decide based on what occurs at trial and not what is reported in the press. Prof. Chemerinskly’s argues that publicity is not likely to endanger a fair trial.
The potential harm from a gag order’s temporary limit on trial participants’ free speech rights is much less serious than the immediate injury resulting from the denial of a criminal defendant’s right to a fair trial, which may lead to an unwarranted deprivation of the defendant’s liberty or even his or her death.
Prof. Chemerinskly’s concludes that the media has always been in the courtroom, and lawyers have long realized that their clients’ interests are often served by publicity. The 1990s have seen an unprecedented degree of media attention to the courts, and, not surprisingly, the response has been unparalleled efforts to control lawyer speech. Current restrictions on lawyer speech, both through rules of professional conduct and gag orders, are unconstitutional. A better approach would be to limit lawyers only from making statements about pending cases that “they know to be false or that are made with reckless disregard for the truth.”
In most high profile cases, judges have imposed gag orders on the attorneys and parties precluding them from speaking with the press. Additionally, new rules have been adopted restricting lawyer speech. For instance, California has adopted a rule which prohibits attorneys from making statements that have a “substantial likelihood of materially prejudicing an adjudicatory proceeding.” At the same time, attorneys often find themselves the subject of disciplinary action for their speech critical of judges. In 1998, the US District Court in California proposed that attorneys should be subject to discipline for any false statement impugning a judge.
These restrictions came at a time when there was an increased demand for attorneys to talk to the press. The lessons the media learned from the O.J. Simpson case were that trials made great television and that there was a large audience for high publicity cases. As the media increasingly followed high profile cases, there was ever greater pressure on lawyers to talk with the press. Judges and bar disciplinary authorities were responding by cracking down and trying to limit lawyer speech.
Prof. Chemerinskly’s concluded that “lawyers should be prohibited only from making statements that they know to be false or that are made with reckless disregard of the truth.” He stated that “false speech serves little First Amendment purpose and there is no reason to constitutionally protect expression that is uttered with knowledge that it is false”. He added: “Otherwise, however, all attorney speech about pending cases should be unregulated, both by rules of professional conduct and by court orders.”
He argued that lawyer speech was desirable. Lawyers have First Amendment rights and requiring attorneys to relinquish them as a condition of membership in the bar should be viewed as an unconstitutional condition. A lawyer’s duty to “zealously represent a client” often is best served by the attorney speaking to the press. “Attorney speech about pending cases can advance the interests of the client and the justice system”, he stared. He added that “attorney speech about pending cases and about courts should be regarded as political speech protected by the core of the First Amendment. Restrictions should be tolerated only if strict scrutiny is met.”
There are questions as to whether the “clear and present danger test” or some less protective approach should be followed. It seems that no one has advocated that attorneys be subject to discipline “only if it is proven, with clear and convincing evidence, which an attorney made a statement knowing it to be false or with reckless disregard of the truth.” Prof. Chemerinskly’s claims that it is the best standard “because it is the most protective of speech, it is not vague or overbroad, it serves the goal of preventing the speech most likely to cause harm, and it has the virtue of a large body of case law defining it.”
Judges understandably want to control the cases before them and wish that all else would go away. Gag orders give them at the least the sense of more control. But all of this ignores the First Amendment and the strong presumption that more speech is better, that rarely is the public interest served by government-enforced silence, and that the best remedy usually is more speech not less, he argues.
The American rule is that “political speech–speech about government and government officials–is protected by the very core of the First Amendment.” Debate on public issues should “be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Government may restrict speech about government and government officials “only if strict scrutiny is met.”
Courts are a part of the government; therefore, court proceedings are government action. Therefore, attorney speech about what is pending or occurring in a court is political speech. Any speech about a judge or a judge’s rulings fits squarely within the First Amendment.
In addition, strict scrutiny is appropriate because regulations, whether as rules of professional conduct or as gag orders, are “content-based restrictions on speech.” Model Rule 3.6 is explicitly content-based. It provides:
“A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”
The exceptions are: a lawyer may state a claim, offense, or defense involved; information contained in a public record; an investigation is in progress; and a warning of danger concerning the behavior of the person involved. Speech is allowed under the rule if its content fits within the exceptions, otherwise it is prohibited.
The court orders on attorneys limiting speech in particular cases are content-based because their application depends entirely on the topic of the speech. The US rule is that “content-based regulations are presumptively invalid and must meet strict scrutiny, while content-neutral regulation only need meet intermediate scrutiny.”
The rules of professional conduct regulating attorney speech and gag orders on lawyers should be allowed only if strict scrutiny is met. Gag orders should also merit strict scrutiny because they are a “prior restraint on speech.” The US Supreme Court has held that “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.”
Prior restraints are regarded as particularly undesirable because they prevent speech from ever occurring. Prof. Chemerinskly’s argued: “A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.”
The common public perception is that attorney speech about pending cases serves little, if any, useful purpose and that it likely is just a reflection of the lawyer’s desire to use the case for personal fame and profit. Some people declare that lawyers need not say anything to the press to represent their clients effectively.
Prof. Chemerinskly’s disagrees and contends that there are times that effective representation of a client requires statements to the press. First, countering adverse publicity in the media often may require statements to the media. A lawyer cannot take the chance that media publicity has no impact and should counter adverse publicity concerning his or her client.
The First Amendment can tolerate restrictions of speech only if the harm of the expression is proven, while the attorney should always speak out and counter potentially harmful publicity unless the harm is clearly trivial, he added. If there is no gag order and one side is speaking to the press, the other should be able to counter.
The opposition to the above argument is that the better approach would be to silence both sides, as judges have done in most of the high profile cases. But this violates the First Amendment unless strict scrutiny is met. Moreover, it does not solve the problem because gagging attorneys does not prevent publicity that might be adverse to one side or the other. Leaks of information are frequent in high profile cases. Such leaks are virtually impossible to stop.
Even if no attorney or participant in the case ever spoke to the media, there would still be intense coverage of high profile cases. Such media publicity can be adverse to one side or the other and may include false, damaging information. Unless the adverse speech can be answered, there is danger of the public having a false and unfair impression. In such circumstances, attorneys can and should speak out on behalf of their clients, Prof. Chemerinskly’s argues.
Similarly, at times attorneys must speak out to protect their clients’ reputations. He argues that a client who is never prosecuted, or who is prosecuted and acquitted, may have been ill-served by a lawyer who allowed public speculation about his guilt to go unchallenged.
Attorney speech to the media may help to gather crucial evidence. Police and prosecutors may want to speak to the press to gain public assistance in locating witnesses and other evidence. Defense lawyers also often benefit from the public coming forward in response to media publicity.
Attorney statements to the media might help encourage settlement. If an attorney or a surrogate point out weaknesses in the other side’s case, settlement might become more likely. The press provides leverage in cases that are publicly embarrassing to the opposition. By convincing the defense that the matter will be on the front page many more times, a plaintiff’s lawyer can raise a case’s settlement value’ and hasten its conclusion. There is an important public benefit to such private gains. The Supreme Court has emphasized the great benefit to the legal system of settlements and the avoidance of trials.
Clients have interests that transcend a particular case. They seek to use the legal system to reform the law. A plaintiff may bring a lawsuit to challenge an abusive practice. Publicity can be crucial in bringing the abuses to light. More generally, a client may want to use the media attention to educate the public about an issue.
Such public discussion of important social issues has obvious benefits. Attorney speech can foster and direct the dialogue. The legal system often is and should be used to reform society, and publicity can help further the client’s cause and the public’s interest.
At times, attorneys should speak out to generate media interest in their cases with the hope that the public scrutiny will cause judges to be more careful and fair. Some lawyers organize publicity campaigns because they believe that in a divided city, their clients would face unfair prejudice in the courtroom without such a ‘public defense.’” Sometimes the campaigns pay off and significantly influence the trial judges by making them extremely conscious of public scrutiny and of being and appearing to be fair and even-handed, thus, helping ensure that the defendants would receive their fair share of discretionary rulings.
Attorney speech often serves to advance the interests of the client and the interests of society. It is part of the duty of zealous representation.
The question that arises is: Since attorneys are officers of the court, should they be entitled to less free speech protection than others in society.
Some feel that gag orders are particularly justified when applied to lawyers and court personnel because officers of the court have a fiduciary responsibility not to prejudice fair trials and because they have special access to information and a professional responsibility not to thwart a fair judicial process. They argue that collaboration between counsel and the press as to information affecting the fairness of criminal trials is not only subject to regulation but is highly censurable and worthy of disciplinary measures.
There are US Supreme Court rulings holding that restrictions on lawyers should receive less than strict scrutiny. As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will rebound to the detriment of the accused or that will obstruct the fair administration of justice. The State has a substantial interest in preventing officers of the court, such as lawyers, from imposing the adverse effects of pretrial publicity on the judicial system and on the litigants. Attorneys can be subjected to discipline for criticizing judges because the Constitution does not give attorneys the same freedom as participants in a political debate.
Those who oppose such a view argue that the descriptive statement that attorneys are officers of the court does not justify the normative conclusion that a lesser standard of constitutional review should be used in reviewing restrictions on attorney speech. Even accepting the characterization that lawyers are officers of the court, that says nothing about the duties which are attendant to this role. The descriptive role of attorneys in a judicial system does not resolve the normative constitutional question as to when prior restraints on speech should be allowed. The unique position of lawyers, if anything, justifies more protection for their speech.
To the extent the press and public rely upon attorneys for information because attorneys are well-informed, this may prove the value to the public of speech by members of the bar. If the dangers of their speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent.
Attorneys’ duties to the court always must be assessed in the context of the lawyers’ duties to their clients. An attorney’s clients may be best served by their attorney speaking to the media. Unless there is proof that the court will be harmed by such attorney speech, the duty to clients deserves priority. The argument that attorneys deserve less protection of speech because they are officers of the court rests on the assumption that lawyers’ speech is in some way damaging to the judiciary. That assumption is unsupported. The damage to the legal system from attorney speech remains asserted but never proven.
Applying a lower level of scrutiny to restrictions of attorneys’ speech would be an unconstitutional condition on bar membership. Lawyers would be forced to relinquish First Amendment rights in exchange for their ticket to practice law. The “unconstitutional condition doctrine” is the principle that the government cannot condition a benefit on the requirement that a person forego a constitutional right. The central idea is that the “government may not deny a benefit to a person because he exercises a constitutional right.”
Conditioning a benefit on a requirement that individuals give up their First Amendment rights obviously pressures individuals to forego constitutionally protected speech. The condition “will have the effect of coercing the claimants to refrain from the proscribed speech. The unconstitutional condition doctrine prevents the government from penalizing those who exercise their constitutional rights by withholding a benefit that otherwise would be available.
Applying a lower level of scrutiny to content-based restrictions on attorney speech, as compared with the standard applied to content-based restraints on everyone else’s speech, would create an unconstitutional condition on the practice of law. Attorneys would be required to relinquish their speech rights in exchange for the ability to practice law.
The vast majority of states have adopted some form of the American Bar Association’s Model Rules of Professional Conduct. Rule 3.6(a) provides that “a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
The current US standard is that although attorney speech about pending cases is protected by the First Amendment, it can be punished if it poses a “substantial likelihood of materially prejudicing an adjudicatory proceeding”. A lawyer cannot argue that he should be subjected to discipline only if there is a “clear and present danger” to the fair administration of justice or that the “substantial likelihood” test does not sufficiently protect speech.
The current US jurisprudence is that attorneys are officers of the Court and thus are more subject to regulation of their speech than others. Their speech could pose a greater risk to the fair administration of justice. Because lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative. ‘Substantial likelihood of material prejudice’ standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials.
As to the other key form of restrictions on attorney speech, i.e., court orders preventing attorneys in a pending case from speaking publicly about it, it seems the US Supreme Court has not yet addressed the constitutionality of gag orders on lawyers and parties. In past cases, it considered the constitutionality of prior restraints on the press to protect a fair trial.
The belief is that there are many alternatives to gag orders on the press, including, changing venue, postponing the trial to allow public attention to subside, searching questioning of prospective jurors to screen out those with fixed opinions as to guilt or innocence, clear instructions to the jury as to what may be considered in reaching a verdict, sequestration of jurors, and orders limiting speech by attorneys.
Lower courts in USA have adopted different standards for when gag orders on lawyers and parties are constitutionally permissible. Some courts have said that such gag orders are allowed so long as they seem reasonably related to achieving a fair trial. They feel that proscription of certain extrajudicial communications by prospective witnesses is necessary in order to protect the rights of the defendants to a fair trial based solely on admissible evidence.
There is reasonable likelihood that due to the prejudicial news prior to trial the defendants would be denied a fair trial. The tremendous publicity attending a trial, the potentially inflammatory and highly prejudicial statements that could reasonably be expected from the parties, and the relative ineffectiveness of the considered alternatives, dictated the strong measure of suppressing speech of potential witnesses to ensure a fair trial.
The “reasonable likelihood standard” provides that a gag order on trial participants is constitutional if there is a reasonable likelihood of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial. It is a standard much lower that the clear and present danger test. Many lower courts in USA feel that the reasonable likelihood standard was appropriate in order to ensure a fair trial.
However, there are rare rulings which articulate “strict scrutiny” as the appropriate test for gag orders on trial participants because gag orders are seen as a prior restraint upon freedom of speech and expression. A gag order seals the lips of all parties concerned from discussing in any manner whatsoever the cases with members of the news media or the public. A gag order impairs the First Amendment right of the press to gather information. To justify imposition of a prior restraint, statements must pose a “clear and present danger”, or a “serious or imminent threat” to a protected competing interest and must be “narrowly drawn” and cannot be upheld if “reasonable alternatives” are available having a lesser impact on First Amendment freedoms.
A restrictive order involving a prior restraint upon First Amendment freedoms is “presumptively void” and may be upheld only on the basis of a clear showing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial. For such a prior restraint to be valid, the speech must pose a serious and imminent threat of a specific nature, the remedy for which can be narrowly tailored in an injunctive order. There must be a finding that less burdensome alternatives of voir dire, sequestration, or change of venue will not suffice to protect a fair trial.
For a gag order to be constitutional, it must meet three tests. First, the limitations on attorney speech should be “no broader than necessary” to protect the integrity of the judicial system and the defendant’s right to a fair trial. Second, the trial court must explore whether “other available remedies” would effectively mitigate the prejudicial publicity. Third, the trial court must give “proper notice” to all parties restrained and give each party the opportunity to be heard.
But some lower courts have rejected the argument that a gag order on trial participants should be regarded as prior restraints, because it does not involve a restriction on the dissemination of information by the press. It only limits the gathering of information by limiting the ability of the press to receive statements from lawyers.
The crucial flaw in this conclusion is that it focuses solely on the institutional press and ignores that gag orders directed at lawyers and parties are a prior restraint on their speech.
Several courts have enforced gag orders on lawyers via criminal contempt proceedings.
The law is unsettled as to when gag orders on trial participants are constitutional. This uncertainty is likely to remain until the US Supreme Court addresses the issue and articulates a standard.
The key question is whether these restrictions on lawyer speech meet “strict scrutiny”. Under strict scrutiny, the burden is on the government to prove that its action is necessary to achieve a compelling purpose.
The justification for the regulation on attorney speech is the need to ensure fair trials. There is no doubt that there is a compelling government interest in providing fair trials in both criminal and civil cases. In criminal cases, the Sixth Amendment, of course, guarantees defendants a right to a fair trial with an impartial jury. Moreover, due process requirements apply in both criminal and civil cases.
However, strict scrutiny cannot be met because restrictions on lawyer speech are not necessary to provide a fair trial. First, there is not sufficient evidence to prove that attorney speech jeopardizes fair trials so as to justify either the rules of professional conduct or gag orders. It is extremely unlikely that it ever can be shown that lawyer statements will pose a serious risk to a fair trial. There is little evidence that pretrial publicity actually jeopardizes fair trials and even less that attorney speech endangers fair judicial proceedings.
Only the occasional case presents a danger of prejudice from pretrial publicity. Empirical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it and base their verdict upon the evidence presented in court.
There is very little hard evidence that demonstrates that juries are prejudiced by trial publicity. Most studies that have examined the prejudicial effect of trial publicity on juries have been quite inconclusive. Scientific research has not revealed a strong connection between trial publicity of any sort and jury prejudice.
The experience of recent high profile cases belies the conclusion that extensive publicity makes an acquittal more difficult for the defense. In many recent cases that received extensive publicity, defendants were acquitted despite predictions that juries would be prejudiced against the defense by the media coverage. The cases might be seen as an indicator that juries decide based on what occurs at trial and not what is reported in the press. Prof. Chemerinskly’s argues that publicity is not likely to endanger a fair trial.
The potential harm from a gag order’s temporary limit on trial participants’ free speech rights is much less serious than the immediate injury resulting from the denial of a criminal defendant’s right to a fair trial, which may lead to an unwarranted deprivation of the defendant’s liberty or even his or her death.
Prof. Chemerinskly’s concludes that the media has always been in the courtroom, and lawyers have long realized that their clients’ interests are often served by publicity. The 1990s have seen an unprecedented degree of media attention to the courts, and, not surprisingly, the response has been unparalleled efforts to control lawyer speech. Current restrictions on lawyer speech, both through rules of professional conduct and gag orders, are unconstitutional. A better approach would be to limit lawyers only from making statements about pending cases that “they know to be false or that are made with reckless disregard for the truth.”
Thursday, November 6, 2008
Drug tests; constitutionality issues.
I am reproducing below the full text of the very recent en banc decision of the Philippine Supreme Court in the case that I have filed questioning the constitutionality of "suspicionless, random and mandatory drug tests" as provided in Sec. 36 of RA 9165 (Dangerous Drugs Act of 2002).
The Court partially granted my petition.
The other petitioners were the Social Justice Society and Sen. A. Pimentel.
The case title is: "ATTY. MANUEL J. LASERNA, JR. vs. Dangerous Drugs Board, et. al.",G.R. No. 158633, Nov. 3, 2008, and companion cases: "SOCIAL JUSTICE SOCIETY (SJS) vs. DDB, et. al.", G.R. No. 157870, Nov. 3, 2008; "Sen. AQUILINO Q. PIMENTEL, JR. vs. Commission on Election, et. al.", G.R. No. 161658, Nov. 3, 2008.
Justice Presbitero Velasco wrote the opinion and the Court en banc concurred.
D E C I S I O N
VELASCO, JR., J.:
In these kindred petitions, the constitutionality of Section 36 of Republic
Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with certain offenses, among other personalities, is put in issue.
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing.—Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing:
x x x x
(c) 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 the parents, undergo a random drug testing x x x;
(d) 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, x x x 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;
x x x x
(f) 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 (1) day shall undergo a mandatory drug test;
(g) 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.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)
On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing.—x x x
x x x x
(g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:]
SECTION 1. Coverage.—All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x.
SEC. 4. Preparation and publication of names of candidates.—Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x
SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.—No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May 10, 2004 elections, filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:
SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.
According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person’s constitutional right against unreasonable searches is also breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.
It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute sought to be reviewed. But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it. To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.
The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest. There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution.
Pimentel’s contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. 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. In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.
Congress’ inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise:
Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.
Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation. The substantive constitutional limitations are chiefly found in the Bill of Rights and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. 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.
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that “[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test.” Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not 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.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug-testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.
While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.
It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process “the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs.” This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of “an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects.” The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.—A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x.
x x x x
Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program.—A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions:
x x x x
School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Sec. 2, Art. III of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education), both fairly pertinent US Supreme Court-decided cases involving the constitutionality of governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school’s athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school’s drug testing policy violated, inter alia, the Fourth Amendment of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student’s privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth and 14th Amendments and declared the random drug-testing policy constitutional.
In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non-athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the basis of the school’s custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage.
In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.
The Court can take judicial notice 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. To borrow from Vernonia, “[d]eterring drug use by our Nation’s schoolchildren is as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs”; the necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty. Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that “subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,” has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution. Petitioner Laserna’s lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration:
The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen’s constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.
The essence of privacy is the right to be left alone. In context, the right to privacy means the right to be free from unwarranted exploitation of one’s person or from intrusion into one’s private activities in such a way as to cause humiliation to a person’s ordinary sensibilities. And while there has been general agreement as to the basic function of the guarantee against unwarranted search, “translation of the abstract prohibition against ‘unreasonable searches and seizures’ into workable broad guidelines for the decision of particular cases is a difficult task,” to borrow from C. Camara v. Municipal Court. Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state’s exercise of police power.
As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, “reasonableness” is the touchstone of the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual’s privacy interest against the promotion of some compelling state interest. In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employees––and students for that matter––under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as “swift and informal disciplinary procedures,” the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question.
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search “narrowly drawn” or “narrowly focused”?
The poser should be answered in the affirmative. For one, Sec. 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. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to “random drug test as contained in the company’s work rules and regulations x x x for purposes of reducing the risk in the work place.”
For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee’s privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody. In addition, the IRR issued by the DOH provides that access to the drug results shall be on the “need to know” basis; that the “drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results.” Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees’ privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test. To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor’s dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.
Petitioner SJS’ next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company’s work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in the constitutional landscape. In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.
We find the situation entirely different in the case of persons charged before the public prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day imprisonment. 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. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.
SO ORDERED.
The Court partially granted my petition.
The other petitioners were the Social Justice Society and Sen. A. Pimentel.
The case title is: "ATTY. MANUEL J. LASERNA, JR. vs. Dangerous Drugs Board, et. al.",G.R. No. 158633, Nov. 3, 2008, and companion cases: "SOCIAL JUSTICE SOCIETY (SJS) vs. DDB, et. al.", G.R. No. 157870, Nov. 3, 2008; "Sen. AQUILINO Q. PIMENTEL, JR. vs. Commission on Election, et. al.", G.R. No. 161658, Nov. 3, 2008.
Justice Presbitero Velasco wrote the opinion and the Court en banc concurred.
D E C I S I O N
VELASCO, JR., J.:
In these kindred petitions, the constitutionality of Section 36 of Republic
Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with certain offenses, among other personalities, is put in issue.
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing.—Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing:
x x x x
(c) 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 the parents, undergo a random drug testing x x x;
(d) 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, x x x 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;
x x x x
(f) 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 (1) day shall undergo a mandatory drug test;
(g) 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.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)
On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing.—x x x
x x x x
(g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:]
SECTION 1. Coverage.—All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x.
SEC. 4. Preparation and publication of names of candidates.—Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x
SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.—No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May 10, 2004 elections, filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:
SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.
According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person’s constitutional right against unreasonable searches is also breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.
It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute sought to be reviewed. But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it. To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.
The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest. There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution.
Pimentel’s contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. 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. In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.
Congress’ inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise:
Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.
Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation. The substantive constitutional limitations are chiefly found in the Bill of Rights and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. 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.
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that “[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test.” Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not 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.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug-testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.
While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.
It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process “the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs.” This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of “an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects.” The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.—A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x.
x x x x
Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program.—A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions:
x x x x
School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Sec. 2, Art. III of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education), both fairly pertinent US Supreme Court-decided cases involving the constitutionality of governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school’s athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school’s drug testing policy violated, inter alia, the Fourth Amendment of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student’s privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth and 14th Amendments and declared the random drug-testing policy constitutional.
In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non-athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the basis of the school’s custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage.
In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.
The Court can take judicial notice 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. To borrow from Vernonia, “[d]eterring drug use by our Nation’s schoolchildren is as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs”; the necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty. Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that “subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,” has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution. Petitioner Laserna’s lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration:
The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen’s constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.
The essence of privacy is the right to be left alone. In context, the right to privacy means the right to be free from unwarranted exploitation of one’s person or from intrusion into one’s private activities in such a way as to cause humiliation to a person’s ordinary sensibilities. And while there has been general agreement as to the basic function of the guarantee against unwarranted search, “translation of the abstract prohibition against ‘unreasonable searches and seizures’ into workable broad guidelines for the decision of particular cases is a difficult task,” to borrow from C. Camara v. Municipal Court. Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state’s exercise of police power.
As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, “reasonableness” is the touchstone of the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual’s privacy interest against the promotion of some compelling state interest. In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employees––and students for that matter––under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as “swift and informal disciplinary procedures,” the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question.
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search “narrowly drawn” or “narrowly focused”?
The poser should be answered in the affirmative. For one, Sec. 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. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to “random drug test as contained in the company’s work rules and regulations x x x for purposes of reducing the risk in the work place.”
For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee’s privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody. In addition, the IRR issued by the DOH provides that access to the drug results shall be on the “need to know” basis; that the “drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results.” Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees’ privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test. To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor’s dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.
Petitioner SJS’ next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company’s work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in the constitutional landscape. In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.
We find the situation entirely different in the case of persons charged before the public prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day imprisonment. 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. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.
SO ORDERED.
Subscribe to:
Posts (Atom)