G.R. No. 167798 J. Ynares-Santiago

EN BANC

G.R. No. 167798 --- Kilusang Mayo Uno, et al., Petitioners, versus The Director General, National Economic Development Authority, et al., Respondents.

G.R. No. 167930 --- Bayan Muna Representatives Satur C. Ocampo, et al., Petitioners, versus Eduardo Ermita, et al., Respondents.

Promulgated:

April 19, 2006

x ------------------------------------------------------------------------------------------------------- x

DISSENTING OPINION

YNARES-SANTIAGO, J.:

The ponencia dismissed the petitions and upheld the validity of Executive Order (E.O.) No. 420 ruling that E.O. No. 420 applies only to government agencies that issue ID cards as part of their functions; that E.O. No. 420 limits the data to be collected and recorded to only 14 specific items; that the issuance of E.O. No. 420 is well within the power of the President to promulgate.

With due respect, I do not agree with the ponente in saying that E.O. No. 420 is constitutional. On the contrary, E.O. No. 420 constitutes a usurpation of legislative functions by the executive branch of the government; infringes on the citizenry’s right to privacy; and completely disregards and violates the decision of this Court in Ople v. Torres.[1]

Encroachment on the law making powers of the legislature:

The Constitution allocated constitutional authority to each of the three co-equal branches of the government to ensure political independence of each branch and provided sufficient checks and balances against the hazards of concentrated power in the hands of any one branch. Thus, the Constitution explicitly provides that the legislature shall be vested in the Congress, the executive power shall be vested in the President, and judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

The doctrine of separation of powers does not however, absolutely prohibit delegation of legislative authority. The Constitution itself makes the delegation of legislative powers to the President.[2] Sections 23(2) and 28(2) of Article VI provide thus:

Sec. 23(2): In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

Sec. 28(2): The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

Respondents cite the Constitution, particularly Section 1, Article VII, as basis for the issuance of E.O. No. 420. The contention is untenable. Said provision merely declares that “the executive power shall be vested in the President of the Philippines.” It is generally defined as the power to enforce and administer laws. It is the power of carrying the laws into practical operation and enforcing their due observance.[3] It does not in any way permit a delegation of legislative power. Likewise, respondents cannot validly cite Sections 23(2) and 28(2) of Article VI as above quoted since they refer to a delegation of certain powers which may be exercised only in times of war or other national emergency or the imposition of certain taxes or duties within the framework of the national development program of the government. Certainly, E.O. No. 420 does not fall in either category.

Respondents also claim that the Administrative Code of 1987 also empowers the President to issue executive orders[4] and vests upon her residual powers;[5] that the President has the inherent right to formulate rules which officials of the executive branch of government shall abide.

Indeed, the Administrative Code of 1987 delegates to the President certain ordinance powers in the form of presidential issuances, which include executive orders, administrative orders, proclamations, memorandum orders, memorandum circulars, and general and special orders. These issuances have the force and effect of laws. Executive Orders are acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers.[6] Among the rules and regulations that may be issued by the President are those intended for the guidance of subordinate executive officials to promote a more efficient and cost effective administration of government department and agencies. To this genre of regulations E.O. No. 420 allegedly belongs.

The case of Walter E. Olsen & Co. v. Herstein[7] discusses at length executive orders, to wit:

x x x Executive Order No. 41 is nothing more or less than a command from a superior to an inferior. It creates no relation except between the official who issues it and the official who receives it. Such orders, whether executive or departmental, have for their object simply the efficient and economical administration of the affairs of the department to which or in which they are issued in accordance with the law governing the subject matter. They are administrative in their nature and do not pass beyond the limits of the department to which they are directed or in which they are published, and, therefore, create no rights in third persons. They are based on, and are the product of, a relationship in which power is their source and obedience their object. (Emphasis added)

To be valid, an administrative issuance, such as an executive order, must comply with the following requisites:

(1) Its promulgation must be authorized by the legislature;

(2) It must be promulgated in accordance with the prescribed procedure;

(3) It must be within the scope of the authority given by the legislature; and

(4) It must be reasonable.[8]

It cannot be argued that E.O. No. 420 is nothing more than the President’s exercise of the power of control over the executive branch of the government. While it is true that the President wields executive and administrative powers and participate in rule making through delegated legislative authority, however, Congress cannot abdicate its legislative powers and delegate them, unless the Constitution and the law so grant. Notwithstanding, the avowal by the respondents that E.O. No. 420 is merely an internal regulation to promote efficiency in government operations and greater convenience for those transacting business with the government, the unrestricted and unrestrained impact of a unified multi-purpose ID system divests itself of the pretensions of an internal management issuance. As the term denotes, the multipurpose ID card system can be utilized in any and all conceivable situations involving government or even private transactions as the whereas clause so states. Unlike existing government ID cards which are designed for specific and official transactions, the multipurpose ID is devoid of such specificity. The scope of its usage is staggering and all encompassing. With its ubiquitous application, its legal and practical repercussions will not be confined solely to the corridors of the executive departments but will overflow even beyond. Thus, E.O. No. 420, while ostensibly an internal regulation, runs counter to the letter and spirit of the doctrine that an executive order is nothing more or less than a command from a superior to an inferior; that it creates no relation except between the official who issues it and the official who receives it.

Another statutory basis invoked by respondents to justify E.O. No. 420 is Sec. 20, Chapter 7, Title I, Book III of the Administrative Code of 1987 which states:

Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law.

However, the residual power contemplated above can operate only within the context of a pre-existing law. It cannot stand independent of a valid legislative act. Thus, the legal character of E.O. No. 420 is much unlike that of E.O. No. 132 as illustrated in Larin v. Executive Secretary[9] where the Court upheld the challenged order since there exists statutory basis that the President is authorized to effect organizational changes including the creation of offices in the department or agency concerned. Further ratiocinating on the legality of E.O. 132, the Court held:

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

‘Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law.’ (italic ours)

This provision speaks of such other powers vested in the President under the law. What law then gives him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials. The validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that “all laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed or revoked. So far, there is yet no law amending or repealing said decrees.” [10]

Unlike the challenged order in Larin v. Executive Secretary, E.O. No. 420 is devoid of constitutional or statutory basis.

E.O. No. 420 vis-vis A.O. No. 308:

The case of Ople v. Torres[11] involves A.O. No. 308 which also provides for the adoption of a national computerized reference ID system to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities.

In Ople v. Torres, the Court struck down A.O. No. 308 for being unconstitutional. The Court rejected the argument that A.O. No. 308 merely implements the Administrative Code of 1987 since it establishes for the first time a National Computerized Identification Reference System, which requires a delicate adjustment of various contending state policies – the primacy of national security, the extent of privacy interest against dossier gathering by government, and the choice of policies, among others. It was held that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order.

The same is true with E.O. No. 420. Although couched differently, A.O. No. 308 and E.O. No. 420 are similar in their effects and intent.

A.O. No. 308 requires a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities to achieve the national ID system, while E.O. No. 420 requires all government agencies and instrumentalities to institute a unified multipurpose ID system.

At the forefront of the implementation of both ID systems is the entire government machinery. The government as an institution is the most dominant fixture in any civilized society. Its decisions virtually affect every facet in the life of every citizen. With all government instrumentalities required to adopt the proposed ID system, its reach and extent becomes practically inescapable since, as in the words of Ople v. Torres, “no citizen will refuse to get this identification card for no one can avoid dealing with government. It is thus clear as daylight that without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges.”[12]

The proposed ID systems incorporate a reference number, denominated as the Population Reference Number in A.O. No. 308 and as a “common reference number” in E.O. No. 420. This reference number, together with other data requirements and information, shall then be collected and stored in a centralized computer database, which is sought to establish a government-wide linkage among concerned agencies, or to reduce the cost for the maintenance of redundant database containing the same or related information. Like A.O. No. 308, the collated and stored data under E.O. No. 420 will be made readily accessible to any government agency or instrumentality which makes a request. The State is afforded an unbridled authority to retrieve or utilize stored data for whatever purpose it deems necessary. Although E.O. No. 420 spells out the general intent of the proposed ID system, which is to establish the identity of the person, it is difficult to decipher a more specific reason for its adoption. After all, an ID card, whatever form or design it takes, is essentially a tool for identification. The equivocal and vague objective of the proposed ID system is an invitation not only to its proper use but also to its misuse and abuse.

Even the safeguards delineated in E.O. No. 420 will not cure its fatal infirmities. Other than the motherhood assurances of confidentiality, or that the data stored will be used solely for establishing the identity of a person, or the proscription against violation of the right to privacy, there are no clear, specific and categorical guarantees that would dispel trepidations and suspicions of mistreatment and abuse. We can only repeat the apprehensions resoundingly expressed in Ople v. Torres:

We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal information about the individual. Even that hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall be handled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system.[13]

Prescinding from the above reasoning, the identification of the 14 items to be collected under E.O. No. 420 does not divest it of its illegality. It does not narrow down its application in the absence of well-defined parameters for its application.

Right to Privacy:

The right to privacy is the inalienable right of an individual to be let alone. As a legal precept, the privacy of an individual takes its bearing from common law which recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Although the great preponderance of American judicial authority have recognized the existence of the right of privacy, it was the publication in 1890 of Harvard Law Review[14] article entitled “The Right to Privacy” by Warren and Brandeis (later Justice Brandeis) which crystallized the right as an independent legal right and opened the doors for a more systematic formulation of the distinctive principles upon which it is based. That article synthesized at one stroke a whole new category of legal rights and initiated a new field of jurisprudence.[15]

The U.S. Constitution does not explicitly express the right to privacy, yet the U.S. Supreme Court has repeatedly recognized, albeit implicitly, such a right in its efforts to preserve the individual’s control over his personal image. The U.S. Supreme Court, in 1965, recognized that privacy is within the legal penumbra of the Bill of Rights, particularly in the First, Third, Fourth, Fifth and Ninth Amendments.[16]

In Griswold v. Connecticut,[17] the U.S. Supreme Court laid down the constitutional foundations of the right to privacy. The Court recognized the need to protect basic constitutional rights and applied the same against the states under the Due Process Clause, mandating a stricter scrutiny for laws that interfere with “fundamental personal rights” than for those regulating economic relations. One such fundamental personal right, the right to privacy, was deemed to have penumbras, formed by emanations from those guarantees that help give life and substance reasoning that the First, Third, Fourth, Fifth and Ninth Amendments of the American Constitution imply “zones of privacy” that form the basis for the general privacy right affirmed in Griswold v. Connecticut.

The U.S. Supreme Court is yet to fully expand the right to privacy to the level of an independent doctrine covering personal information, although the Federal High Court implicitly acknowledged the existence of the right to information in Whalen v. Roe.[18] In that case, the State of New York passed a law requiring physicians to identify patients obtaining prescription drugs enumerated in the Controlled Substance Act of 1972, drugs with medical application but with potential for abuse. The names and addresses of the patients were required to be recorded in a centralized computer file of New York State’s Department of Health. The issue presented before the U.S. Supreme Court was whether the State of New York could keep a centralized computer record of the names and addresses of all persons who obtained certain drugs pursuant to a doctor’s prescription.

The U.S. Supreme Court upheld the constitutionality of the above statute since it complied with certain safeguards to the right to privacy, namely: 1) while a person’s interest in avoiding disclosure of personal matters is an aspect of the right to privacy, the law did not give a grievous threat to establish a constitutional violation; 2) the statute was necessary to assist in the enforcement of the law designed to minimize the misuse of dangerous drugs; 3) the patient-identification requirement was a product of an orderly and rational legislative decision made upon recommendation by a commission, which held hearings on this matter; 4) the law was narrowly drawn and contained several safeguards against indiscriminate disclosure; 5) the law laid down the procedure for the gathering, storage, and retrieval of the information; 6) it enumerated who were authorized to access the data; and 7) it prohibited public disclosure of the data by imposing penalties for its violation.

In a related case, Justice Department v. Reporters Committee for Freedom of the Press,[19] dealt with a request for "rap sheets" compiled by the FBI. The information was gathered from public records across the country and stored in a computer database. In that case, the U.S. Supreme Court upheld withholding the information and articulated a “practical obscurity” doctrine (a judicial acceptance of “forgive and forget”) in which the Court assumed that computers exacerbate the threat to personal privacy by eliminating the natural elements of time and distance among “scattered bits of information” that once afforded individuals the ability to distance themselves from past mistakes and start their lives anew. It further concluded that compilations of personal information taken from generally accessible public records enjoyed a rejuvenated privacy interest when stored in government computers and that disclosure of certain categories of public information held in computers always constituted an undue privacy threat and could routinely be deemed an unwarranted privacy threat and be withheld without a case-by-case analysis. Exemptions 6 & 7 of the Freedom of Information Act (FOIA) had been interpreted by courts as requiring a balancing of competing interests, whereby the courts considered the privacy interests at stake against the public benefit from disclosure. The Court held a seemingly narrow view of the public interest served by disclosure, focusing only on information that had an obvious bearing on the agency’s performance of its statutory duties. In other words, although the government collects vast amounts of information on virtually every facet of society, the public is entitled to have access only to information pertaining to governmental functions.

Philippine jurisprudence on the right to privacy, not to mention informational privacy, is at its infancy. There are very few occasions that Philippine courts are given the opportunity to resolve and expound on issues relating to the right to privacy as a constitutional guarantee. One reason given by Justice Jorge R. Coquia, in his treatise[20] on the matter is that the Philippine Constitution expressly guarantees only the privacy of communication and jurisprudence.[21]

With the exception of Ople v. Torres, the more notable case is Morfe v. Mutuc[22] where the Court first recognized the constitutional right to privacy as laid down in Griswold v. Connecticut. The case of Ramirez v. Court of Appeals[23] arose from petitioner’s act of secretly tape recording an event in direct violation of Republic Act (R.A.) No. 4200 or the Anti-Wiretapping Act. Therein, the court clarified that even a person privy to a communication who records his private conversation with another without the knowledge of the latter will qualify as a violator under Section 1 of R.A. No. 4200.

The basic attribute of an effective right to informational privacy is the individual’s ability to control the flow of information concerning or describing him, which however must be overbalanced by legitimate public concerns. To deprive an individual of his power to control or determine whom to share information of his personal details would deny him of his right to his own personhood. For the essence of the constitutional right to informational privacy goes to the very heart of a person’s individuality, a sphere as exclusive and as personal to an individual which the state has no right to intrude without any legitimate public concern.

As the erosion of personal privacy by computer technology and advanced information systems accelerate, the individual’s ability to control its use has diminished. Sharing of data among government agencies and private and public organizations are not uncommon. Aside from the chilling prospect that one’s profile is being formed from the gathering of data from various sources, there is also the unsettling thought that these data may be inaccurate, outdated or worse, misused. There is therefore a pressing need to define the parameters on the use of electronic files or information, to be properly initiated by a legislative act and not formulated in a mere executive order masquerading as an internal regulation, as in the case of E.O. No. 420.

Even granting that E.O. No. 420 constitutes a valid exercise of executive power, it must still be struck down because it falls short of the guarantees laid down in Whalen v. Roe and Ople v. Torres. There is no specific and foolproof provision against the invasion of the right to privacy, particularly, those dealing with indiscriminate disclosure, the procedure for the gathering, storage, and retrieval of the information, an enumeration of the persons who may be authorized to access the data; and the sanctions to be imposed against unauthorized use and disclosure. Although it was mentioned in Section 3 of E.O. No. 420 that the data to be collected will be limited to the enumeration therein, yet it failed to provide the yardstick on how to handle the subsequent and additional data that will be accumulated when the ID is used for future governmental and private transactions.

Thus, we reiterate the caveat enunciated in Ople v. Torres that “the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. It merely requires that the law be narrowly focused and a compelling interest justifies such intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be subjected by this Court to strict scrutiny.”[24]

In fine, E.O. No. 420 is unconstitutional for lack of constitutional and statutory basis; its subject matter is not appropriate subject of an executive order; and it violates the constitutionally guaranteed right to privacy.

ACCORDINGLY, I vote to GRANT the petitions.

CONSUELO YNARES-SANTIAGO

Associate Justice

[2] Agpalo, Ruben E., Philippine Administrative Law, 2004 Edition, p. 149.

[4] Section 2, Chapter 2, Title I, Book III, Administrative Code of 1987.

[8] Hon. Executive Secretary v. Southwing Heavy Industries, Inc., G.R. Nos. 164171, 164172 & 168741, February 20, 2006.

[16] Griswold v. Connecticut, 381 U.S. 479, 14 L Ed. 2d 510 (1965).

[19] 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989).

[20] Annotation: The National Computerized Identification Reference System as Violation of the Right to Privacy, 293 SCRA 201, 215.

[23] G.R. No. 93833, September 28, 1995, 248 SCRA 590.