Mandatory drugs testing – violating current drugs law?

This article as published in Kuensel for Saturday Legal Column Series

he current mandatory drug testing by various government agencies seem to contradict the provisions of Narcotic Drugs, Psychotropic Substance and Substance Abuse Act (NDPSSAA), 2015. The fundamental concern here is, whether the authorities of test taking agencies are within the ambit of Act. For example, Kuensel reported that, BNCA endorsed the (TCB)’s SOP for drug testing tourism service. The current law does not mention anywhere such power to BNCA. Contrarily, the Act is explicit on drug testing and
screening to protect drug dependents from victimization by the state or the society and to recognize drug dependency as merely a disease. American Society for Addiction Medicine defined drug dependence as “a treatable, chronic medical disease involving complex interactions among brain circuits, genetics, the environment, and an individual’s life experiences”. 

Thus, under  S. 85 (1)  Act, BNCA can designate  “an agency to conduct drug screening and testing of any person or substance” only if there is  credible information, that “ a person causes public nuisance or poses probable risk to the public and is under reasonable ground suspected to have consumed or consuming any substance controlled substances in  any public place”.  This means, current system of drug test is not in conformity with S. 85(1) of Act. Even, if the current system is within the ambit of this law, any positive results would invoke S. 152 of the Act where S. 152(1) and (2) requires that, a person tested positive unless they are prescribed by registered physician must be assessed by Treatment Assessment Panel (TAP). Depending on the outcome of the TAP Assessment, that person will have to either go for rehabilitation and treatment for a minimum of three months or one-month counseling for the first time and increase thereafter.  However, reports reveal that, testing agencies such as RCSC deprived the selected graduates from joining civil service, RSTA directly suspended driver’s licenses and warned them of permanent cancellation of driving license and even termination from jobs and TCB contemplating similar actions.

Further, the current test is merely a field test and is not free of errors and can give wrong results. Therefore, any decisions merely based on field or preliminary test may cause irreparable harm and injury to test takers. That is why, S. 89, 90 and 91 of the Act is inserted so that, the test takers can challenge and appeal the results of field tests.   With increasing number of agencies adopting drug testing measures, it may even violate fundamental rights guaranteed by our Constitution such as right to “equal access and opportunity to join the public service” (Art.7.8), to “practice any lawful trade, profession or vocation” (Art. 7.10) and right to non-discrimination based on status (Art. 7.15). Finally, S. 50 of the Act states, “A drug dependent person who successfully completed treatment or served sentence shall be given equal opportunities for jobs and other opportunities to help assimilate into the mainstream”. Such tests if not performed as per the law, the right to social re-integration and addiction as disease would be defeated. Therefore, agencies like BNCA must exercise their authorities within the boundaries of law, otherwise it will become ultra vires to the law and infringe on the parliamentary acts. The test taking agencies may have the best intentions and interests, but their authority to conduct such test remains questionable.   

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel.