Has Tokhang conquered our education systems?
THE Commission on Higher Education (CHEd) recently approved CMO 64 s. 2017 which provides for the policies, guidelines and procedures on drug testing of students in higher education institutions. The Department of Education (DepEd) has also issued DO 40 s. 2017. Both have met heavy criticism from the public, especially from human rights groups and even legislators, Rep. Sarah Elago of Kabataan party-list and Rep. Tony Tinio of A.C.T.
Has Tokhang really conquered our education systems?
No. If it has, then I would be the first to lead protests against this.
Prior to the approval of CMO 64, CHEd originally tried to issue a CMO to make drug testing mandatory for all students and also to make it one of the requirements for college admission in all educational institutions. I vehemently opposed this during public consultations because it has no leg to stand on. RA 9165, or the Comprehensive Dangerous Drugs Act of 2002, only requires mandatory random drug testing in all secondary and tertiary schools. Under the law, while it is mandatory for all schools to implement this drug testing policy, the actual conduct of the drug testing of students must be random .
SC: tests should be random, suspicionless
In Social Justice Society v. Dangerous Drugs Board in 2008, the Supreme Court in upholding the constitutionality of RA 9165 in fact clarified that the test should be random , suspicionless, and should not be used for apprehension and prosecution of students like criminals.
And because of my opposition, the CHEd sought the opinion of the Department of Justice, which insisted that the government through the CHEd has the power to impose a mandatory drug testing of all students in both public and non-public higher education institutions. But despite the insistence of the DOJ lawyers, the existing law and jurisprudence simply weighed heavily against the DOJ opinion. And kudos to the CHEd-Office of Student Development and Services (CHEd-OSDS) that studied carefully the position of the private HEIs and eventually endorsed the substantial changes to the originally proposed CMO to the commission en banc which has now approved CMO 64 s. 2017 in its current form.
Under CMO 64, the government through the CHEd does not implement a mandatory drug testing of all students. It merely reiterates the mandatory random drug testing policy of the government as provided for under RA 9165 and the past issuances of the Dangerous Drugs Board in the conduct of drug testing in all schools. Mandatory random drug testing as provided in RA 9165 simply means that it is mandatory for all schools to implement a drug testing policy, but the actual drug test on students is conducted randomly.
Academic freedom of HEIs
But CMO 64 also does not preclude mandatory drug testing of students in the private higher education institutions. This is rightfully so because the source of this policy-making authority of private HEIs is not CHEd, but the constitutionally guaranteed academic freedom of all institutions of higher learning. For instance, it is the usual practice in several private HEIs to implement mandatory drug testing of its student athletes and those who represent the school in extra-curricular activities; or even in curricular programs such as mandatory drug testing of criminology students.
There are a variety of reasons that can be articulated to justify mandatory drug testing in the private HEIs in its exercise of academic freedom, which may be: addressing student discipline and behavior; preventing substances that can impair student performance; student security and safety in the locality; and assuring that students in extra-curricular activities are effective role models e.g. student athletes. This is the beauty of academic freedom, the HEIs cannot be used or forced to buy into the government’s singular motive for mandatory drug testing which is war on illegal drugs.
CHEd’s originally proposed policy has now evolved from a state-sponsored mandatory drug testing of all students to one that is random as provided by law through CMO 64. Most importantly, CMO 64 recognizes the academic freedom of HEIs to implement their own mandatory drug testing policy, and provides for regulations to prevent abuses in its exercise. These include requirements on consultation of fees and the policy, reasonable conduct of the testing, choice of clinic to administer the tests, and the confidentiality of results.
Now that CHEd has implicitly admitted it is without authority to implement a state-sponsored mandatory drug testing of all students, the public is actually protected from tokhang, a government measure against drug users and peddlers where civil liberties are not respected. This is not to say that the mandatory drug testing if implemented in the private HEIs is guaranteed to be free of any abuse of students. But while this is not so, students who may be subjected to abuse in the private HEIs have so many recourses available to them which are not otherwise available if it were state-sponsored or government-mandated. One of which is the freedom of choice, where a student can always walk away from a private HEI if policy becomes unreasonable. But the private HEIs’ authority is nothing compared to the government’s plenary power especially when it has at its disposal the conduct of drug tests and their results. There is simply no escaping from a government that pursues an alleged drug user or peddler, much like Kian being given a gun and ordered to run for his life before he was mercilessly murdered by police operatives.
As for basic education, DepEd Order No. 40, series of 2017 merely reiterates the mandate for schools to conduct random drug testing of students in both public and private secondary educational institutions.
In a larger perspective, students should be subject to the primary authority of higher educational institutions and secondary educational institutions and their parents, and not of government law enforcement agencies and instrumentalities. In basic education, schools stand in loco parentis as regards their minor students. Because let’s face it, in the era of war against drugs, lesser state or police action always gives the public a sigh of relief. At this time, when the war on drugs is promoted to the public as a justification for the police to set aside human rights and civil liberties, mandatory state action, or state-sponsored mandatory drug testing of all students should be barred entry into our educational systems.
The author is the corporate secretary and legal counsel of The Manila Times, and the managing partner of Estrada & Aquino Law, Co. He is also the legal counsel of the Coordinating Council of Private Educational Associations (COCOPEA).