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My Lecture Notes On RA 9165 PDF
My Lecture Notes On RA 9165 PDF
9165
BY:
Executive Judge PABLO CABILLAN FORMARAN III
This law was enacted on June 7, 2002, and was published in two
newspapers of general circulation (namely, the Manila Times and
Manila Standard) on June 19, 2002 and in the Official Gazette (Vol. 98
No. 32 page 4325) on August 12, 2002. It became effective fifteen
(15) days from their publication.2
6 Section 3(f), ibid. “Confirmatory Test” is an analytical test using a device, tool
or equipment with a different chemical or physical principle that is more specific
which will validate and confirm the result of the screening test.
7 The penalty is life imprisonment to death and a fine ranging from P500
Thousand to P10 Million.
My Lecture Notes on R.A No. 9165 Page 5
local government. But in the same case, the Supreme Court declared
as constitutional paragraphs c and d of Section 36 of Republic Act No.
9165, which pertain to random drug testing of students of secondary
and tertiary schools, whether public or private, and the officers and
employees of public and private offices, whether domestic or
overseas. This case is significant because persons charged before
the prosecutor’s office with a criminal offense with an imposable
penalty of imprisonment of not less than six (6) years and one (1)
day could no longer be required to undergo a mandatory drug test.
What was the reason proffered by the Supreme Court? First, let us
know the principal issues of the case, and they are as follows:
(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?
“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
My Lecture Notes on R.A No. 9165 Page 7
xxx
xxx
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.
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.
First, "[a] person apprehended or arrested" cannot literally mean any person
apprehended or arrested for any crime. The phrase must be read in context and
understood in consonance with R.A. 9165. Section 15 comprehends persons arrested
or apprehended for unlawful acts listed under Article II of the law.
Hence, a drug test can be made upon persons who are apprehended or arrested for,
among others, the "importation," "sale, trading, administration, dispensation, delivery,
distribution and transportation", "manufacture" and "possession" of dangerous drugs
and/or controlled precursors and essential chemicals; possession thereof "during
parties, social gatherings or meetings"; being "employees and visitors of a den, dive
or resort"; "maintenance of a den, dive or resort"; "illegal chemical diversion of
controlled precursors and essential chemicals" ; "manufacture or delivery" or
"possession" of equipment, instrument, apparatus, and other paraphernalia for
dangerous drugs and/or controlled precursors and essential chemicals; possession of
dangerous drugs "during parties, social gatherings or meetings" ; "unnecessary" or
"unlawful" prescription thereof; "cultivation or culture of plants classified as dangerous
drugs or are sources thereof"; and "maintenance and keeping of original records of
transactions on dangerous drugs and/or controlled precursors and essential
chemicals." To make the provision applicable to all persons arrested or apprehended
for any crime not listed under Article II is tantamount to unduly expanding its meaning.
Note that accused appellant here was arrested in the alleged act of extortion.
Who is a Pusher?
14 Section 3 (m), ibid. “Dispense” refers to any act of giving away, selling or
distributing medicine or any dangerous drug with or without the use of
prescription.
18 People vs. Bertha Presas y Tolentino, G.R. No. 182525, March 2, 2011.
of the illegal drug subject of the sale. The manner by which the
initial contact was made, whether or not through an informant,
the offer to purchase the drug, the payment of the "buy-bust"
money, and the delivery of the illegal drug, whether to the
informant alone or the police officer, must be the subject of
strict scrutiny by courts to insure that law-abiding citizens are
not unlawfully induced to commit an offense. Criminals must be
caught but not at all cost. At the same time, however, examining
the conduct of the police should not disable courts into ignoring
the accused's predisposition to commit the crime. If there is
overwhelming evidence of habitual delinquency, recidivism or
plain criminal proclivity, then this must also be considered.
Courts should look at all factors to determine the predisposition
of an accused to commit an offense in so far as they are relevant
to determine the validity of the defense of inducement.”
In People v. Lua Chu and Uy Se Tieng, the Court laid down the
distinction between entrapment and instigation, to wit:
Who is a Protector/Coddler?
23 Section 3(e), ibid. “Clandestine Laboratory” refers to any facility used for
the illegal manufacture of any dangerous drug and/or controlled precursor and
essential chemical.
25 Section 3 (q), ibid. “Financier” refers to any person who pays for, raises or
supplies money for, or underwrites any of the illegal activities under this Act.
the chain and are eventually the ones offered in evidence – should be
done (1) in the presence of the apprehended violator (2)
immediately upon confiscation, is a step which initiates the
process of protecting innocent persons from dubious and concocted
searches, and of protecting as well the apprehending officers
from harassment suits based on planting of evidence under
Section 29 and on allegations of robbery or theft.
1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof. [Emphasis ours]
(a) The apprehending officer/team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically inventory
and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof: x x x Provided, further that non-
compliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by
the apprehending officer/team, shall not render void and invalid such seizures
of and custody over said items. [Emphasis supplied]
Although this regulation took effect on October 18, 2002 (or after
the commission of the crime charged), it is nonetheless useful in
illustrating how the process of preserving the integrity of the chain of
custody of the seized drugs is ensured and maintained. That the police
failed to approximate these safeguards and the prosecution failed to
prove the identity of the specimen allegedly seized and the specimen
submitted as evidence during the trial is evident from SPO2 Sevilla
himself who testified as follows:
FISCAL GIBSON ARAULA:
A: It is in my possession.
Q: Now you said that you brought the accused to the Police Station,
what happened to the Police Station?
Q: Before you turn over that plastic sachet Mr. Witness, what
did you put there?
xxxx
Q: By the way Mr. Witness after you turned over to the investigator
the plastic sachet, did you happen to know where the
investigator brought the plastic sachet?
Significantly, this was the only testimony in the case that touched
on the chain of custody of the seized evidence. It failed to disclose the
identities of the desk officer and the investigator to whom the custody of
the drugs was given, and how the latter handled these materials. No
reference was ever made to the person who submitted the seized
specimen to the PNP Crime Laboratory for examination. Likewise, no
one testified on how the specimen was handled after the chemical
analysis by the forensic chemist. While we are aware that the RTC's
Order of August 6, 2003 dispensed with the testimony of the forensic
chemist because of the stipulations of the parties, we view the
stipulation to be confined to the handling of the specimen at the forensic
My Lecture Notes on R.A No. 9165 P a g e 19
The PDEA shall take charge and have custody of all dangerous
drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered,
for proper disposition. (Section 21)
29 Section 3(r), ibid. “Illegal Trafficking” refers to the illegal cultivation, culture,
delivery, administration, dispensation, manufacture, sale, trading, transportation,
distribution, importation, exportation and possession of any dangerous drug
and/or controlled precursor and essential chemical.