[OPINION] The problem with PNP’s drug test ‘dare’ for barangay candidates

While packaging it like responding to the “dare” would be voluntary, he also put candidates on the spot: “Kung wala naman silang 'tinatago, why not undergo a voluntary drug test? 'Yun nga 'yung sinasabi namin na kailangan pa ba na lumabas pa 'yang listahan na 'yan bago sila maakusahan ng ganyan?” (If they have nothing to hide, why not undergo a voluntary drug test? That's what we've been saying: why wait for their names to end up in lists like that and be accused)

The move for the mandatory drug testing of candidates for an elective public office is not new. In fact, Republic Act 9165 or the Comprehensive Dangerous Drugs Act of 2002, as passed by Congress, contained this provision: 

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. 

Senate President Aquilino “Koko” Pimentel III, then running for re-election in the May 2004 elections, filed a petition before the Supreme Court. He sought to nullify Section 36 (g) of RA 9165 for being unconstitutional as it adds a layer of qualification for candidates for senators on top of those provided for in the 1987 Constitution. 

The Supreme Court ruled in favor of Senator Pimentel, striking Sec. 36 (g) of RA 9165 as unconstitutional. It ruled that Congress, in adopting Section 36 (g), had overstepped its power because it expanded the list of qualifications for senatorial candidates. In other words, a mere law passed by Congress cannot alter, enlarge, or expand the qualification standards set by the Constitution. 

While it is obviously moot to discuss the correctness of the ruling now, there are points that are interesting to examine.

Note that while Section 36 (g) covers “all candidates for public office whether appointed or elected both in the national or local government,”not all of the qualifications of elective and appointive offices are provided for in the Constitution. The Constitution only provides for the qualifications of the President, Vice President, members of the Senate, House of Representatives, the Supreme Court, and the rest of the constitutional offices.

The qualifications of the rest of elective and appointive positions in government are provided for by law or administrative issuances. For example, Republic Act 7160 (RA 7160) or the Local Government Code of 1991, and not the Constitution, provides the qualifications for elective and appointive local government officials.

So while, Pimentel is correct as regards the conflict between the Constitution and Section 36 (g) of RA 9165, there is no such conflict as regards candidates for local government positions. In other words, when it comes to local candidates, the Supreme Court technically has no legal basis to strike the mandatory drug test requirement. Instead of striking it down entirely, the Supreme Court could have simply exempted those holding constitutional or national offices, like the senators, from the requirement of Sec. 36 (g) of RA 9165 and let the provision apply to other elective and appointive government officials.

Regardless of this theoretical lapse, the Pimentel case has become final and Section 36 (g) of RA 9165 is now irreversibly dead. As they say, a Supreme Court decision is final not because it is correct, but it is correct because it is final. This means that, currently, there is no law that requires mandatory drug testing of candidates. There is no basis for either the Comelec or PNP to require it. 

However, if President Rodrigo Duterte and his allies are serious about making drug testing mandatory among elective and appointive officials of local governments and non-constitutional offices, there is enough basis to re-enact Sec. 36 (g) of RA 9165 to cover them or to amend the pertinent qualifications in RA 7160 to include it.

Now, without any legal basis to require drug testing of candidates, is PNP chief Albayalde nonetheless allowed to make a public dare for them to voluntarily undergo a drug test?

The entire PNP, including its leadership, needs to be reminded that under Section 2 (4), Article IX-B, of the 1987 Constitution, “no officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.” The same prohibition is reflected in the Administrative Code of 1987.

The same way that PDEA's release of the barangay drug list could constitute an election offense, so could the PNP's active pushing of this “dare” for candidates to take drug tests.

This is not a simple dare as the PNP wants it to appear, but one obviously designed to put undue pressure on candidates to undergo drug testing even when they are not required by law. Albayalde himself implied that those who would not undergo drug testing would be suspected as drug users (“may itinatago”), coupled with a threat that they will otherwise be included in the “list,” referring to the name-and-shame campaign of PDEA and the DILG. 

This may seem harmless under normal circumstances, but holistically taking the present anti-drug climate and the fact that the utterance was made few days before elections, Albayalde’s words can easily be taken by the public as an endorsement of those who will heed his dare and turn out clean, or a negative endorsement of those who would test positive. This is enough to bring his “dare” within the broad legal definition of “election campaign” or “partisan political activity” in Section 79 (b) of the Omnibus Election Code, which defines it as any act “designed to promote the election or defeat of a particular candidate or candidates to a public office.” 

Constituting as “partisan political activity,” Albayalde’s “dare”falls within Section 261 (i) of the Omnibus Election Code, which defines intervention of public officers and employees as an election offense punishable with an imprisonment of at least one year but not more than 6 years. It provides:

Section 261. Prohibited Acts. - The following shall be guilty of an election offense:

xxx 

(i) Intervention of public officers and employees. - …[A]ny police force...who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

Section 261 (i) specifically mentions “police force” for emphasis, in due consideration of their considerable influence on the public and their key role in keeping the elections peaceful, honest, and orderly, which therefore requires their unquestioned neutrality. 

For PNP to verbalize its hostility, bias, or its disapproval of candidates with perceived links to the drug trade affects this neutrality or at least the public’s perception of the organization's neutrality. This is precisely the situation that Section 261 (i) seeks to prevent and intends to deter by making any form of intervention, direct or indirect, a punishable crime. 

It is made clearer by the last part of Section 261 (i), where the law provides that the roles of the PNP, as peace officers, are limited to voting and preserving public order on election day. Thus, even if Albayalde mentions no names, he puts undue pressure on a specific class of candidates to do something that stands to affect their chances of winning or losing the election. This is punishable intervention. Rappler.com 

Emil Marañon III is an election lawyer. He served as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He graduated from the SOAS, University of London, where he studied Human Rights, Conflict, and Justice as a Chevening scholar.