Government launches a project called "Healthy Communities".

Census officers,
together with representatives from the Department of Health, will visit various
communities in the country. Communities where a majority of the population are
below the poverty line will be prioritised. During these visits, basic census
questions need to be answered by members of the household (e.g. number of
people in the household, income, educational attainment, etc). DOH
representatives will conduct some medical tests, including a drug test and an HIV
test (with funds from a developed country supporting AIDS prevention work).
These tests are conducted to make sure that surveyed individuals are healthy and
drug-free. A public database is established to publish the names of people who
test positive for drugs. Government invites corporations to sponsor the drug
treatment of any individual whose name appears on the database. A. Discuss the
legality of this program. *

50 points

Your answer

If you think that this program is legal, discuss protections and safeguards that may
be established to ensure that human rights are protected.

25 points

Your answer

If you think that this program is not legal, discuss your proposed actions to
protect surveyed communities.

The program launched by the Government is illegal because it violates a

persons right to privacy. Article 3, Section 3 of the 1987 Constitution which
provides, The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise, as prescribed by law, secures a Filipinos, who has undergone drug or
HIV tests, right to privacy. Furthermore, the project is violative of a persons right
to privacy for the following reasons:

Firstly, for conducting a drug test on those communities and household

visited by the census officers and DOH representatives, Section 3 of R.A. 9165 or
the Comprehensive Dangerous Drugs Act of 2002 states that: 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 test results. Under the same provision, it enumerates the following
persons that shall be subjected to undergo drug testing, namely: 1) applicants for
drivers license; 2) applicants for firearms license and for permit to carry firearms
outside of residence; 3) students of secondary and tertiary schools; 4) officers and
employees of public and private offices; 5) officers and members of the military,
police and other law enforcement agencies; and 6) all persons charged before the
prosecutor's office with a criminal offense having an imposable penalty of
imprisonment of not less than six years and one day. In the case at bar, although
the said drug testing shall be done by the representatives of DOH, the purpose is
merely to conduct a survey which does not fall under any of the abovementioned
circumstances. It is a basic principle in statutory construction that a special law
will prevail over general law. In the case at bar, the project of the Government is
not even a general law, the project is merely just thata project. It does not have
the force and effect of a law. Thus, the census officers and DOH representatives
cannot conduct a drug test because it violates the mandate under Comprehensive
Dangerous Drugs Act of 2002.

Secondly, as regards the HIV test, Article III, Section 15 of R.A. 8504
otherwise known as the Philippine AIDS Prevention and Control Act of 1998,
provides that no compulsory HIV testing shall be allowed and that the State shall
merely encourage voluntary testing for individuals with a high risk of contracting
HIV. Provided, that a written informed consent must first be obtained. In the case
at bar, it was not stated in the facts that prior consents of the people in the
household were obtained by the census officers and DOH representatives before
conducting an HIV test. It is likewise illegal for the Government to publish the
names of the people who test positive for HIV as a means to invite corporations
to sponsor the treatment of any individual whose name appears on the database
as this is prohibited under Section 16 of the said law which states that: It shall be
unlawful to compel a person to undergo an HIV test as a precondition to the
provision of medical service or any other kind of service.

Thirdly, the Department of Health also recognizes the rights of the patients.
Under its mandate, it states that one of the rights of the patients is the right to
privacy and confidentiality. It states that the privacy of the patients must be
assured at all stages of his treatment and that the patient has the right to be free
from unwarranted public exposure, except in the following cases: a) when his
mental or physical condition is in controversy and the appropriate court, in its
discretion, order him to submit to a physical or mental examination by a
physician; b) when the public health and safety so demand; and c) when the
patient waives this right in writing. Also, the patient has the right to demand that
all information, communication and records pertaining to his care be treated as
confidential. Any health care provider or practitioner involved in the treatment of
a patient and all those who have legitimate access to the patient's record is not
authorized to divulge any information to a third party who has no concern with
the care and welfare of the patient without his consent, except: a) when
such disclosure will benefit public health and safety; b) when it is in the interest
of justice and upon the order of a competent court; and c) when the patients
waives in writing the confidential nature of such information; d) when it is
needed for continued medical treatment or advancement of medical science
subject to de-identification of patient and shared medical confidentiality for
those who have access to the information.

In the case at bar, the facts do not provide for any of the circumstances
abovementioned so that the said exceptions may apply. It is also a basic principle
that the constitutional rights of a person shall prevail and no law or regulation
shall be passed infringing the said rights. Only a compelling reason may justify the
invasion of right to privacy; although there is a good cause for the project
launched by the Government, this is not compelling reason. While It is true that
the Government is vested with police power, one of which is the power to
promote and preserve public health, it must still recognize certain limitations
especially if will bring greater detriments to security and privacy of persons
affected. It must be taken in mind that security and privacy are some of the
blessings of democracy. Thus, the State cannot publish the names of those who
test positive for drugs or HIV without violating not only the patients
constitutional right to privacy, but as well as the Comprehensive Dangerous Drugs
Act, Philippine AIDS Prevention and Control Act and the patients rights as
mandated under the Department of Health.

The possible action that may be taken to protect the surveyed communities
is to seek help from the National Privacy Commission, which is the independent
body created to monitor and ensure the compliance of data protection. Under
R.A. 10173 otherwise known as the Data Privacy Act of 2012, it states that
organizations (the census officers and representative from DOH in this case), who
deal with personal details, whereabouts, and preferences are duty bound to
observe and respect the data privacy rights of the person whose information is
collected, stored and processed. Accordingly, if the data subject feels that their
personal data has been misused, maliciously disclosed, or improperly disposed, or
if any of the rights discussed here have been violated, the data subject has a right
to file a complaint with the National Privacy Commission.The National Privacy
Commission, together with the community whose households were surveyed,
may file a prohibition seeking to refrain these census officers, together with the
representatives of the Department of Health from conducting medical tests,
specifically drug and HIV tests and publishing the names of people who test
positive for the purpose of looking for sponsorship for the treatment of the said
people because it violates the Filipinos constitutional right to privacy. The
National Privacy Commission is also mandated to issue cease and desist orders,
impose a temporary or permanent ban on the processing of personal information,
upon finding that the processing will be detrimental to national security and
public interest and to compel or petition any entity, government agency or
instrumentality to abide by its orders or take action on a matter affecting data
privacy. In the given case, the purpose of the Healthy Communities does not
prevail over the constitutional mandate of the Constitution that the right to
privacy shall only be violable upon lawful order of the court, or when public order
or safety requires otherwise, as prescribed by the law.