Eastern Broadcasting v Dans

29/06/2011 01:30:00

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-59329 July 19, 1985 EASTERN BROADCASTING CORPORATION (DYRE) petitioner, vs. THE HON. JOSE P. DANS, JR., MINISTER OF TRANSPORTATION & COMMUNICATIONS, THE HON. CEFERINO S. CARREON, COMMISSIONER, NATIONAL TELECOM., COMMISSION, ET AL., respondents. RESOLUTION GUTIERREZ, JR., J.: This petition was filed to compel the respondents to allow the reopening of Radio Station DYRE which had been summarily closed on grounds of national security. The petitioner contended that it was denied due process when it was closed on the mere allegation that the radio station was used to incite people to sedition. it alleged that no hearing was held and not a bit of proof was submitted to establish a factual basis for the closure. The petitioner was not informed beforehand why administrative action which closed the radio station was taken against it. No action was taken by the respondents to entertain a motion seeking the reconsideration of the closure action. The petitioner also raised the issue of freedom of speech. It appears from the records that the respondents' general charge of "inciting people to commit acts of sedition" arose from the petitioner's shift towards what it stated was the coverage of public events and the airing of programs geared towards public affairs. On March 25, 1985, before the Court could promulgate a decision squarely passing upon all the issues raised, the petitioner through its president, Mr. Rene G. Espina suddenly filed a motion to withdraw or dismiss the petition. The petitioner alleged:

1. Petitioner Eastern Broadcasting Corporation has already sold its radio broadcasting station in favor of Manuel B. Pastrana as well as its rights and interest in the radio station DYRE in Cebu including its right to operate and its equipment; 2. Respondent National Telecommunications Commission has expressed its willingness to grant to the said new owner Manuel B. Pastrana the requisite license and franchise to operate the said radio station and to approve the sale of the radio transmitter of said station DYRE; 3. In view of the foregoing, petitioner has no longer any interest in said case, and the new owner, Manuel B. Pastrana is likewise not interested in pursuing the case any further. The case, therefore, has become moot and academic. However, for the guidance of inferior courts and administrative tribunals exercising quasijudicial functions, the Court issues the following guidelines: (1) The cardinal primary requirements in administrative proceedings laid down by this Court in Ang Tibay v. Court of Industrial Relations (69 Phil. 635) should be followed before a broadcast station may be closed or its operations curtailed. 1 (2) It is necessary to reiterate that while there is no controlling and precise definition of due process, it furnishes an unavoidable standard to which government action must conform in order that any deprivation of life, liberty, or property, in each appropriate case, may be valid (Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849).

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test (Primicias v. Fugoso [80 Phil. 71], American Bible Society v. City of Manila [101 Phil. 386], Cabansag v. Fernandez [102 Phil. 152], Vera v. Arca [28 SCRA 351], Navarro v. Villegas [31 SCRA 931], Imbong v. Ferrer [35 SCRA 28], Badoy v. Commission on Elections [35 SCRA 285], People v. Ferrer [48 SCRA 382], and the Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc. [51 SCRA 189]. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing [125 SCRA 553]. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos, Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling.

The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. (7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. WHEREFORE, the case having become moot and academic, the petitioner's motion to withdraw or dismiss the petition is hereby GRANTED. SO ORDERED. Melencio-Herrera, Plana, Escolin Relova, Cuevas and Alampay, JJ., concur. Makasiar, Concepcion, Jr. and De la Fuente, JJ., concur in the result (the case having become moot and academic). Aquino, J., took no part. Separate Opinions FERNANDO, C.J., concurring:

I concur in the ponencia of Justice Gutierrez, Jr., notable for its reiteration of the clear and present danger principle as the standard of limitation on free speech and press, as decided by a unanimous court in J.B.L. Reyes v. Bagatsing. 1 As may be gleaned from the voting of the Justices, the majority favors the view that even if a case were moot and academic, a statement of the governing principle is appropriate in the resolution of dismissal for the guidance not only of the parties but of others similarly situated. There are three Justices, however, Makasiar, Concepcion, Jr. and de la Fuente, who would strictly adhere to the concept that the case being moot and academic, the appropriate disposition is that of simply dismissing the action. That is to abide by the teaching of orthodox learning. The Philippines, however, has deviated from such a strict view. Nor is this approach of recent vintage. As early as Alejandrino v. Quezon 2 decided in 1924, this Court, notwithstanding the absence of jurisdiction, expressed through Justice Malcolm what principle of law should govern. Similarly in Osmena, Jr. v. Pendatun, 3 notwithstanding well-founded doubts as to jurisdiction and a finding that the case should be dismissed for being moot and academic, this Court, through the then Justice, later Chief Justice Bengzon, passed upon the legal question raised. In that sense, the Philippines has followed an approach distinct from that of the United States, notwithstanding the influence of American Constitutional law on our legal system. Also let me state for the record that the original opinion prepared by Justice Gutierrez, Jr. could not have been released in April after the petitioner on March 25, 1985 "filed a motion to withdraw or dismiss the petition." After that date, some members of the Court wanted the matter discussed anew as to its appropriate disposition. That is the explanation why such an opinion was never sent to the Office of the Chief Justice. Nor is it to be forgotten that even if a decision signed by all the other members were thus submitted. the practice traditionally followed is for whoever is Chief Justice to take a few days for the expression of his views if minded to do so. TEEHANKEE, J., concurring:

Prefatory Statement: As stated in the resolution penned by Mr. Justice Gutierrez, the release in early April of this year of the Court's decision declaring null and void respondent commission's challenged summary order for closure of petitioner's radio station ("definitely attended by complete absence of any hearing before or after the closure itself") and granting the petition for issuance of a writ of mandatory injunction for the reopening of the station, was overtaken by petitioner's "suddenly filed" motion to withdraw or dismiss the petition. Initially, Mr. Justice Gutierrez was for applying the Salonga a formula and releasing nevertheless his sixteen-page extended opinion and decision on the merits. He was of the view, fully shared by me, b that "(T)he need for guiding principles on constitutionalism is particularly keen in critical times and in periods of transition. There is then a tendency to be impulsive in the exercise of power. The use of illegal shortcuts and the breakdown of traditional restraints and discipline, unfortunately, is most pronounced in troubled times. It becomes necessary for the Court to emphasize the importance of adherence to the mandates of the Constitution. The efforts, no matter how well meaning, to quell a rebellion or to stave off economic disaster cannot succeed if they transgress basic rights and, therefore, alienate our people." But since such approach did not gain the concurrence of the majority, he has replaced his original ponencia with the abbreviated Resolution (of a little over four pages) now released, which carries the required majority and issues guidelines "for the guidance of inferior courts and administrative tribunals exercising quasi-judicial functions."

While withdrawal of the petition for loss of interest on petitioner's part may be granted, still the Court should unequivocally set forth the guiding and controlling precepts or doctrines in pursuance of its symbolic function of educating bench and bar as in Salonga on the protection and preservation of basic constitutional rights. As stated in my separate concurring opinion, infra, public respondents' summary closure of petitioner's radio station failed to observe the special protection given to all forms of media by the due process and freedom of press and media clauses of the Constitution, as well as the basic clear and present danger test. As stated by the now Chief Justice in De la Camara vs. Enage,' c the fact that the case has become moot "should not preclude this Tribunal from setting forth in language clear and unmistakable ... for the guidance of lower court judges [and other public officers] the controlling and authoritative doctrines that should be observed," so that full respect may be accorded to basic constitutional rights. My separate concurring opinion which follows hereinafter was prepared and scheduled for promulgation on or about April 9, 1985 upon its return on said date to the ponente, Mr. Justice Gutierrez, for transmittal to the Office of the Chief Justice for the purpose. But this was overtaken by the filing of petitioner's motion for withdrawal or dismissal of the petition. Hence, my said concurring opinion should be read in such time context (in the same manner as in the 1974 martial law cases of Aquino, Jr. and Diokno vs. Enrile, 59 SCRA 183, 309, September 17, 1974, wherein the promulgation of the decision and separate opinions originally schedule for September 12, 1974 was deferred to the following week with the intervening release from detention of Senator Jose W Diokno). xxx xxx xxx

The main opinion reaffirms in language unmistakable that broadcast media (radio and television) while subject to government licensing (for allocation of the use of airwaves and frequencies) and regulation (considering their pervasive presence and instant impact) are equally protected by the preferred freedoms of speech and of the press and by the rudimentary requirements of due process against arbitrary deprivation of life, liberty and property; that the basic standard for restricting or punishing the exercise of these preferred freedoms is the clear and present danger test danger of a serious and imminent evil sought to be prevented; that the summary closure in October, 1980 of petitioner's radio station ("definitely attended by complete absence of any hearing before or after the closure itself ") violated its constitutional rights and must therefore be declared null and void, and consequently, the writ of mandatory injunction for the reopening of the station, as prayed for, must issue.

Congratulations are due the ponente Justice Hugo Gutierrez, Jr. who secured the Court's near-unanimous concurrence in the recent case of Salonga vs. Pano 1 which went back to the fundamentals and stressed, in discharge of the Court's "symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees" that "(I)nfinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists," that " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate;" that "freedom of expression is a 'preferred' right and therefore stands on a higher level than substantive economic or other liberties," that "this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments;" that there must be tolerance of political hyperbole since "debate on public issues should be uninhibited, robust, and wide open and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," that "the constitutional guarantees of free speech and free press do not permit a State to forbid or prescribe advocacy of the use of force or of law in violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action;" that "political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization" in the absence of proof that "such discussion was in furtherance of any plan to overthrow the government through illegal means;" that, "respondent court should have taken these factors into consideration

before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances;" and that "judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so."

The same ponente has now likewise obtained the Court's nearunanimous approval of the decision at bar, 2 which restates basic and established constitutional principles under the Rule of Law that public officials do not possess absolute power to summarily close down a broadcasting station nor to arbitrarily deny its application for renewal of license; that their broad and peremptory regulatory powers "must be exercised with punctilious regard for the due process clause" which in the words of the Chief Justice signifies "freedom from arbitrariness [and] is the embodiment of the sporting Idea of fair play; 3 that radio and television which "would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances" deserve the special protection of the preferred right of free press and speech; that comment on and criticism of public officials in the conduct of public affairs is not to be taken as "inciting to sedition or subversive acts" that to curb or to punish the exercise of such preferred right of comment and criticism there must exist the clear and present danger of a substantive and grave evil that the State has a clear right to prevent, and hence, there must be a clear showing to this effect of "the words used and when and how they were used;" that since the 1918 case of U.S. vs. Bustos, 4 the Court has taught that "the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abcesses of officialdom; " that the guarantee of free speech is a safety valve "allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion" which is grounded on "faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind" and "serves to avert force and explosions due to restrictions upon rational modes of communication;" 5 and that through the rights of free expression, free assembly and petition, "the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers" and that since "the threat of sanctions may deter the exercise [of these 'delicate and vulnerable ... and supremely precious freedoms'] almost as potently as the actual application of sanctions, they 'need breathing space to survive' permitting government regulation only 'with narrow specificity. 6

The late Justice Jose Abad Santos, martyr of the Japanese occupation, left us over half a century ago the legacy of his dissent against what he deemed were unjustified "invasions on the part of the government and its employees of the sanctities of a man's home and the privacies of life" in People vs. Rubio 7 that the "commendable zeal (of internal revenue agents) if allowed to override constitutional limitations would become 'obnoxious to fundamental principles of liberty.' And if we are to be saved from the sad experiences of some countries which have constitutions only in name, we must insist that governmental authority be exercised within constitutional limits; for, after all, what matters is not so much what the people write in their constitutions as the spirit in which they observe their provisions." In the same vein, the late Chief Justice Ricardo Paras in the landmark case of Primicias vs. Fugoso 8 enjoined all to abide by the teaching of the 1907 sedition case of U. S. vs. Apurado 9 that instances of "disorderly conduct by individual members of a crowd [be not seized] as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities," for "if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor." Indeed, as I stressed in my dissenting opinion in the recent case of German vs. Barangan, 10 to require the citizen at every step to assert his rights and to go to court is to render illusory his rights. All concerned, the governors as well as the governed, must observe what they have written in their constitution in their very spirit and intent, so that as written by Justice Makasiar in the PBM case 11 "the Bill of Rights [might not turn out to be] a useless attempt to limit the power of government and cease to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs political, economic or otherwise."

The Court's decision makes short shrift of respondents' procedural arguments that non-renewal of petitioner's license has made the petition "moot and academic" (brushed aside as "an afterthought or substitute for the respondents' original position that the closure was due to national security") and that mandamus would not lie to compel the reopening of the radio station brought about by their inaction on petitioner's timely application for renewal of the license. It serves notice that in the exercise of the judicial power vested in it by the Constitution, it will issue the equitable writs of certiorari and mandamus to do substantial justice and restore the status quo. In this case, the summary closure of petitioner's radio station in 1980 having been declared null and void and no valid ground for non-renewal of its license having been shown, it is as if the said license has been duly extended up to the end of the current term or year. It is expected that respondents will forthwith return the crystal of the transmitter and place no further obstacle to the prompt reopening of the radio station so that petitioner may pick up the broken pieces and rightfully resume its operations (after almost five years of closure) in accordance with the judgment at bar. ABAD SANTOS, J., concurring: The petitioner has filed a motion to withdraw its petition for the reasons stated in its motion. The Court has granted the motion but this circumstance should not deter the Court from educating those who wield power which if exercised arbitrarily will make a mockery of the Bill of Rights. The closure of the petitioner's radio station on grounds of national security without elaboration of the grounds and without hearing deserves to be condemned in no uncertain terms for it is manifest that due process was not observed. If there is an Idea which should be impressed in the minds of those who wield power it is that power must be used in a reasonable manner. Arbitrariness must be eschewed. The main opinion, that of Justice Teehankee and the case of Ang Tibay vs. Court of Industrial Relations, 69 Phil. 635 [1940], should be made required reading materials for public officials who huff and puff with power making themselves not merely obnoxious but dangerous as well. Separate Opinions FERNANDO, C.J., concurring:

I concur in the ponencia of Justice Gutierrez, Jr., notable for its reiteration of the clear and present danger principle as the standard of limitation on free speech and press, as decided by a unanimous court in J.B.L. Reyes v. Bagatsing. 1 As may be gleaned from the voting of the Justices, the majority favors the view that even if a case were moot and academic, a statement of the governing principle is appropriate in the resolution of dismissal for the guidance not only of the parties but of others similarly situated. There are three Justices, however, Makasiar, Concepcion, Jr. and de la Fuente, who would strictly adhere to the concept that the case being moot and academic, the appropriate disposition is that of simply dismissing the action. That is to abide by the teaching of orthodox learning. The Philippines, however, has deviated from such a strict view. Nor is this approach of recent vintage. As early as Alejandrino v. Quezon 2 decided in 1924, this Court, notwithstanding the absence of jurisdiction, expressed through Justice Malcolm what principle of law should govern. Similarly in Osmena, Jr. v. Pendatun, 3 notwithstanding well-founded doubts as to jurisdiction and a finding that the case should be dismissed for being moot and academic, this Court, through the then Justice, later Chief Justice Bengzon, passed upon the legal question raised. In that sense, the Philippines has followed an approach distinct from that of the United States, notwithstanding the influence of American Constitutional law on our legal system. Also let me state for the record that the original opinion prepared by Justice Gutierrez, Jr. could not have been released in April after the petitioner on March 25, 1985 "filed a motion to withdraw or dismiss the petition." After that date, some members of the Court wanted the matter discussed anew as to its appropriate disposition. That is the explanation why such an opinion was never sent to the Office of the Chief Justice. Nor is it to be forgotten that even if a decision signed by all the other members were thus submitted. the practice traditionally followed is for whoever is Chief Justice to take a few days for the expression of his views if minded to do so. TEEHANKEE, J., concurring:

Prefatory Statement: As stated in the resolution penned by Mr. Justice Gutierrez, the release in early April of this year of the Court's decision declaring null and void respondent commission's challenged summary order for closure of petitioner's radio station ("definitely attended by complete absence of any hearing before or after the closure itself") and granting the petition for issuance of a writ of mandatory injunction for the reopening of the station, was overtaken by petitioner's "suddenly filed" motion to withdraw or dismiss the petition. Initially, Mr. Justice Gutierrez was for applying the Salonga a formula and releasing nevertheless his sixteen-page extended opinion and decision on the merits. He was of the view, fully shared by me, b that "(T)he need for guiding principles on constitutionalism is particularly keen in critical times and in periods of transition. There is then a tendency to be impulsive in the exercise of power. The use of illegal shortcuts and the breakdown of traditional restraints and discipline, unfortunately, is most pronounced in troubled times. It becomes necessary for the Court to emphasize the importance of adherence to the mandates of the Constitution. The efforts, no matter how well meaning, to quell a rebellion or to stave off economic disaster cannot succeed if they transgress basic rights and, therefore, alienate our people." But since such approach did not gain the concurrence of the majority, he has replaced his original ponencia with the abbreviated Resolution (of a little over four pages) now released, which carries the required majority and issues guidelines "for the guidance of inferior courts and administrative tribunals exercising quasi-judicial functions."

While withdrawal of the petition for loss of interest on petitioner's part may be granted, still the Court should unequivocally set forth the guiding and controlling precepts or doctrines in pursuance of its symbolic function of educating bench and bar as in Salonga on the protection and preservation of basic constitutional rights. As stated in my separate concurring opinion, infra, public respondents' summary closure of petitioner's radio station failed to observe the special protection given to all forms of media by the due process and freedom of press and media clauses of the Constitution, as well as the basic clear and present danger test. As stated by the now Chief Justice in De la Camara vs. Enage,' c the fact that the case has become moot "should not preclude this Tribunal from setting forth in language clear and unmistakable ... for the guidance of lower court judges [and other public officers] the controlling and authoritative doctrines that should be observed," so that full respect may be accorded to basic constitutional rights. My separate concurring opinion which follows hereinafter was prepared and scheduled for promulgation on or about April 9, 1985 upon its return on said date to the ponente, Mr. Justice Gutierrez, for transmittal to the Office of the Chief Justice for the purpose. But this was overtaken by the filing of petitioner's motion for withdrawal or dismissal of the petition. Hence, my said concurring opinion should be read in such time context (in the same manner as in the 1974 martial law cases of Aquino, Jr. and Diokno vs. Enrile, 59 SCRA 183, 309, September 17, 1974, wherein the promulgation of the decision and separate opinions originally schedule for September 12, 1974 was deferred to the following week with the intervening release from detention of Senator Jose W Diokno). xxx xxx xxx

The main opinion reaffirms in language unmistakable that broadcast media (radio and television) while subject to government licensing (for allocation of the use of airwaves and frequencies) and regulation (considering their pervasive presence and instant impact) are equally protected by the preferred freedoms of speech and of the press and by the rudimentary requirements of due process against arbitrary deprivation of life, liberty and property; that the basic standard for restricting or punishing the exercise of these preferred freedoms is the clear and present danger test danger of a serious and imminent evil sought to be prevented; that the summary closure in October, 1980 of petitioner's radio station ("definitely attended by complete absence of any hearing before or after the closure itself ") violated its constitutional rights and must therefore be declared null and void, and consequently, the writ of mandatory injunction for the reopening of the station, as prayed for, must issue.

Congratulations are due the ponente Justice Hugo Gutierrez, Jr. who secured the Court's near-unanimous concurrence in the recent case of Salonga vs. Pano 1 which went back to the fundamentals and stressed, in discharge of the Court's "symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees" that "(I)nfinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists," that " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate;" that "freedom of expression is a 'preferred' right and therefore stands on a higher level than substantive economic or other liberties," that "this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments;" that there must be tolerance of political hyperbole since "debate on public issues should be uninhibited, robust, and wide open and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," that "the constitutional guarantees of free speech and free press do not permit a State to forbid or prescribe advocacy of the use of force or of law in violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action;" that "political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization" in the absence of proof that "such discussion was in furtherance of any plan to overthrow the government through illegal means;" that, "respondent court should have taken these factors into consideration

before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances;" and that "judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so."

The same ponente has now likewise obtained the Court's nearunanimous approval of the decision at bar, 2 which restates basic and established constitutional principles under the Rule of Law that public officials do not possess absolute power to summarily close down a broadcasting station nor to arbitrarily deny its application for renewal of license; that their broad and peremptory regulatory powers "must be exercised with punctilious regard for the due process clause" which in the words of the Chief Justice signifies "freedom from arbitrariness [and] is the embodiment of the sporting Idea of fair play; 3 that radio and television which "would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances" deserve the special protection of the preferred right of free press and speech; that comment on and criticism of public officials in the conduct of public affairs is not to be taken as "inciting to sedition or subversive acts" that to curb or to punish the exercise of such preferred right of comment and criticism there must exist the clear and present danger of a substantive and grave evil that the State has a clear right to prevent, and hence, there must be a clear showing to this effect of "the words used and when and how they were used;" that since the 1918 case of U.S. vs. Bustos, 4 the Court has taught that "the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abcesses of officialdom; " that the guarantee of free speech is a safety valve "allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion" which is grounded on "faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind" and "serves to avert force and explosions due to restrictions upon rational modes of communication; " 5 and that through the rights of free expression, free assembly and petition, "the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers" and that since "the threat of sanctions may deter the exercise [of these 'delicate and vulnerable ... and supremely precious freedoms'] almost as potently as the actual application of sanctions, they 'need breathing space to survive' permitting government regulation only 'with narrow specificity. 6

The late Justice Jose Abad Santos, martyr of the Japanese occupation, left us over half a century ago the legacy of his dissent against what he deemed were unjustified "invasions on the part of the government and its employees of the sanctities of a man's home and the privacies of life" in People vs. Rubio 7 that the "commendable zeal (of internal revenue agents) if allowed to override constitutional limitations would become 'obnoxious to fundamental principles of liberty.' And if we are to be saved from the sad experiences of some countries which have constitutions only in name, we must insist that governmental authority be exercised within constitutional limits; for, after all, what matters is not so much what the people write in their constitutions as the spirit in which they observe their provisions." In the same vein, the late Chief Justice Ricardo Paras in the landmark case of Primicias vs. Fugoso 8 enjoined all to abide by the teaching of the 1907 sedition case of U. S. vs. Apurado 9 that instances of "disorderly conduct by individual members of a crowd [be not seized] as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities," for "if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor." Indeed, as I stressed in my dissenting opinion in the recent case of German vs. Barangan, 10 to require the citizen at every step to assert his rights and to go to court is to render illusory his rights. All concerned, the governors as well as the governed, must observe what they have written in their constitution in their very spirit and intent, so that as written by Justice Makasiar in the PBM case 11 "the Bill of Rights [might not turn out to be] a useless attempt to limit the power of government and cease to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs political, economic or otherwise."

The Court's decision makes short shrift of respondents' procedural arguments that non-renewal of petitioner's license has made the petition "moot and academic" (brushed aside as "an afterthought or substitute for the respondents' original position that the closure was due to national security") and that mandamus would not lie to compel the reopening of the radio station brought about by their inaction on petitioner's timely application for renewal of the license. It serves notice that in the exercise of the judicial power vested in it by the Constitution, it will issue the equitable writs of certiorari and mandamus to do substantial justice and restore the status quo. In this case, the summary closure of petitioner's radio station in 1980 having been declared null and void and no valid ground for non-renewal of its license having been shown, it is as if the said license has been duly extended up to the end of the current term or year. It is expected that respondents will forthwith return the crystal of the transmitter and place no further obstacle to the prompt reopening of the radio station so that petitioner may pick up the broken pieces and rightfully resume its operations (after almost five years of closure) in accordance with the judgment at bar. ABAD SANTOS, J., concurring: The petitioner has filed a motion to withdraw its petition for the reasons stated in its motion. The Court has granted the motion but this circumstance should not deter the Court from educating those who wield power which if exercised arbitrarily will make a mockery of the Bill of Rights. The closure of the petitioner's radio station on grounds of national security without elaboration of the grounds and without hearing deserves to be condemned in no uncertain terms for it is manifest that due process was not observed. If there is an Idea which should be impressed in the minds of those who wield power it is that power must be used in a reasonable manner. Arbitrariness must be eschewed. The main opinion, that of Justice Teehankee and the case of Ang Tibay vs. Court of Industrial Relations, 69 Phil. 635 [1940], should be made required reading materials for public officials who huff and puff with power making themselves not merely obnoxious but dangerous as well. Footnotes

1 The requirements are: (1) the right to a hearing, which includes the right to present one's case and submit evidence in support thereof; (2) the tribunal must consider the evidence presented; (3) the decision must have something to support itself; (4) the evidence must be substantial. Substantial evidence means such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion; (5) the decision must be based on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) the tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate; (7) the board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. FERNANDO, C.J. 1 G.R.No.65366, November 9,1983,125 SCRA 553. 2 46 Phil. 83. 3 109 Phil. 863 (1960). TEEHANKEE, J. a In Salonga vs. Patio, G.R. No. 59524, February 18, 1985, while the prosecutors had secured the dismissal by the trial court of the questioned criminal charges against petitioner Jovito Salonga before our decision ordering such dismissal could be promulgated, the Court nevertheless issued the decision ruling squarely on the merits "cognizant of the need to educate prosecutors and judges that they must be zealously concerned for the rights of the accused before a criminal prosecution is initiated." b See my separate opinions in Caliete, G.R. No. 63776, promulgated August 16, 1984, and Sarmiento, G.R. No. 62119, promulgated August 27, 1984, where on the issue of the effect of a decision of acquittal upon a PCO I dissented from the perfunctory majority resolution dismissing the case as moot because the acquitted defendants were finally released several agonizing months after their acquittal, on the ground that such "decisive and fundamental issue of public interest and importance affecting the very liberties of the people . . . demands to be resolved, rather than emasculated with a dismissal of the case as moot, for the guidance of public respondents and all concerned. "

RE: Live TV Coverage 29/06/2011 01:30:00

EN BANC [A.M. No. 01-4-03-SC. June 29, 2001] RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA, SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors. DECISION VITUG, J.: The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind of access to the proceedings. On 13 March 2001, the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), an association representing duly franchised and authorized television and radio networks throughout the country, sent a letter [1 requesting this Court to allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full transparency in the proceedings of an unprecedented case in our history." [2 The request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo. On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant petition, [3 submitting the following exegesis: "3. s or a matter over which the entire citizenry has the right to know, be informed and made aware of. " 4. There is no gainsaying that the constitutional right of the people to be informed on matters of public concern, as in the instant cases, can best be recognized, served and satisfied by allowing the live radio and television coverage of the concomitant court proceedings.

"5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring the desired transparency in the administration of justice in order to disabuse the minds of the supporters of the past regime of any and all unfounded notions, or ill-perceived attempts on the part of the present dispensation, to 'railroad' the instant criminal cases against the Former President Joseph Ejercito Estrada."[4 Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting the nation. In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then President Corazon C. Aquino. The resolution read: "The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the courtroom. Similarly, Philippine courts have not had the opportunity to rule on the question squarely. While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of the United States prohibit the presence of television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the taking of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated. "Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom. "In Estes vs. Texas, the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the due process rights of a criminal defendant. Voting 5-4, the Court through 'Mr. Justice Clark, identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated:

"'Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences which might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychologjcal reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. 'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.' "Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the courtroom, a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet of reporters and photographers each time he enters or leaves the courtroom. "Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. "Accordingly, in order to protect the parties right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHIBIT live radio and television coverage of court proceedings. Video footages of court hearings for news purposes shall be limited and restricted as above indicated."

Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important instrument in the quest for truth. [5 Recent history exemplifies media's invigorating presence, and its contribution to society is quite impressive. The Court, just recently, has taken judicial notice of the enormous effect of media in stirring public sentience during the impeachment trial, a partly judicial and partly political exercise, indeed the most-watched program in the boob-tubes during those times, that would soon culminate in EDSA II. ------The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. [6 When these rights race against one another, jurisprudence [7 tells us that the right of the accused must be preferred to win. With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence, [8 and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions. Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings nor made an object of public's attention [9 and where the conclusions reached are induced not by any outside force or influence [10 but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded.

Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind and resolute endurance, but it must also be conceded that "television can work profound changes in the behavior of the people it focuses on." [11 Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it. [12 It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion. [13 To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance of the mind so indispensable to the calm and deliberate dispensation of justice can create. [ 14 The effect of television may escape the ordinary means of proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we know it now. [15 An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings. [16

The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media's exalted power to provide the most accurate and comprehensive means of conveying the proceedings to the public and in acquainting the public with the judicial process in action; nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to due process [17 which must never be allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, "while a maximum freedom must be allowed the press in carrying out the important function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process." [18 This Court, in the instance [19 already mentioned, citing Estes vs. Texas, [20 the United States Supreme Court holding the television coverage of judicial proceedings as an inherent denial of due process rights of an accused, also identified the following as being likely prejudices: "1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial judge announces that a case will be televised it becomes a cause celebre. The whole community, x x x becomes interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. x x x "2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth. "3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. x x x

4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental - if not physical-harassment, resembling a police line-up or the third degree. The inevitable close-up of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him - sometimes the difference between life and death dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice." In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have mischievous potentialities for intruding upon the detached atmosphere that should always surround the judicial process. [21 The Integrated Bar of the Philippines, in its Resolution of 16 April 2001, expressed its own concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto themselves the task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers. It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of cases before trial courts brought about by petitions seeking a declaration of mistrial on account of undue publicity and assailing a court a quo's action either allowing or disallowing live media coverage of the court proceedings because of supposed abuse of discretion on the part of the judge.

En passant , the minority would view the ponencia as having modified the case law on the matter. Just to the contrary, the Court effectively reiterated its standing resolution of 23 October 1991. Until 1991, the Court had yet to establish the case law on the matter, and when it did in its 23 rd October resolution, it confirmed, in disallowing live television and radio coverage of court proceedings, that "the records of the Constitutional Commission (were) bereft of discussion regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (theretofore) had the opportunity to rule on the question squarely." But were the cases decided by the U.S. courts and cited in the minority opinion really in point? In Nebraska Press Association vs. Stewart, [22 the Nebraska State trial judge issued an order restraining news media from publishing accounts of confession or admissions made by the accused or facts strongly implicating him. The order was struck down. In Richmond Newspaper, Inc., vs. Virginia , [ 23 the trial judge closed the courtroom to the public and all participants except witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled that criminal trials were historically open. In Globe Newspaper vs. Superior Court , [24 the US Supreme Court voided a Massachusetts law that required trial judges to exclude the press and the public from the courtroom during the testimony of a minor victim of certain sexual offenses. Justice Stewart, in Chandler vs. Florida, [25 where two police officers charged with burglary sought to overturn their conviction before the US Supreme Court upon the ground that the television coverage had infringed their right to fair trial, explained that "the constitutional violation perceived by the Estes Court did not stem from the physical disruption that might one day disappear with technological advances in the television equipment but inhered, rather, in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused." [26 Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio coverage of their proceedings.

The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a former President of the Republic. It is undeniable that these cases have twice become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III where the magnitude of the events has left a still divided nation. Must these events be invited anew and risk the relative stability that has thus far been achieved? The transcendental events in our midst do not allow us to, turn a blind eye to yet another possible extraordinary case of mass action being allowed to now creep into even the business of the courts in the dispensation of justice under a rule of law. At the very least, a change in the standing rule of the court contained in its resolution of 23 October 1991 may not appear to be propitious. Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to only adjudicate justiciable controversies on the basis of what alone is submitted before them. [ 27 A trial is not a free trade of ideas. Nor is a competing market of thoughts the known test truth in a courtroom. [28 The Court is not all that unmindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty to bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay. WHEREFORE , the petition is DENIED. SO ORDERED. Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Davide, Jr., C.J., Bellosillo, and Quisumbing, JJ., joins the dissenting opinion of Puno, J . Puno, and Panganiban, JJ., see dissenting opinion. Kapunan, and Sandoval-Gutierrez, JJ., see concurring opinion. Melo, J., joins the dissents. Mendoza, J., concur in the majority opinion of Vitug, J ., and join the separate opinion of Kapunan, J . Ynares-Santiago, J., on leave.

RE: REQUEST FOR LIVE TV OF TRIAL OF JOSEPH ESTRADA [360 SCRA 248; A.M. NO 01-4-03-SC; 29 JUN 2001] Sunday, February 15, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

 Facts: The Kapisanan ng mga Brodkaster ng Pilipinas (KBP) sent a letter requesting the Court to allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full transparency in the proceedings of an unprecedented case in our history." The request was seconded by Mr. Cesar N. Sarino and, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo.

Issue: Whether or Not live media coverage of the trial of the plunder and other criminal cases filed against former President Joseph E. Estrada should be permitted by the court.

Held: The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. When these rights race against one another, jurisprudence tells us that the right of the accused must be preferred to win. Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted about its individual settings nor made an object of publics attention and where the conclusions reached are induced not by any outside force or influence but only be evidence and argument given in open court, where fitting dignity and calm ambiance is demanded. An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long ago. A public trial is not synonymous with publicized trial, it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial

process. The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media's exalted power to provide the most accurate and comprehensive means of conveying the proceedings to the public. Nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to due process which must never be allowed to suffer diminution in its constitutional proportions.

Ayer vs Capulong

29/06/2011 01:30:00

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 82380 April 29, 1988 AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners, vs. HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents. G.R. No. 82398 April 29, 1988 HAL MCELROY petitioner, vs. HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents. FELICIANO, J.: Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V. Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification Board as well as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production. In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out below:

The Four Day Revolution is a six hour mini-series about People Powera unique event in modern history that-made possible the Peaceful revolution in the Philippines in 1986. Faced with the task of dramatizing these remarkable events, screenwriter David Williamson and history Prof Al McCoy have chosen a "docudrama" style and created [four] fictitious characters to trace the revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country. These character stories have been woven through the real events to help our huge international audience understand this ordinary period inFilipino history. First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average American attitude to the Phihppinence once a colony, now the home of crucially important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for him, there appears to be no alternative to Marcos except the Communists. Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the events as it becomes dear that the time has come for a change. Through Angle and her relationship with one of the Reform Army Movement Colonels (a fictitious character), we follow the developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their defection from Marcos. The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony. Ultimately, she must choose between her love and the revolution. Through the interviews and experiences of these central characters, we show the complex nature of Filipino society, and thintertwining series of events and characters that triggered these remarkable changes. Through them also, we meet all of the principal characters and experience directly dramatic recreation of the revolution. The story incorporates actual documentary footage filmed during the period which we hope will capture the unique atmosphere and forces that combined to overthrow President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap'). Professor McCoy (University of New South Wales) is an American historian with a deep understanding of the Philippines, who has worked on the research for this project for some 18 months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts the complex issues and events that occurred during th period . The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom ------The proposed motion picture would be essentially a re-enactment of the events that made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as background. On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to any matter purely personal to them. It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction. On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed. In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion of which reads thus: WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew as well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court should finally decide that plaintiff was not entitled thereto. xxx xxx xxx (Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380. A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398. By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the projected mini-series which do not make any reference to private respondent or his family or to any fictitious character based on or respondent. Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy. I The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected under our Constitution. Private respondent, upon the other hand, asserts a right of privacy and claims that the production and filming of the projected mini-series would constitute an unlawful intrusion into his privacy which he is entitled to enjoy. Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, education and entertainment. In Gonzales v. Katigbak, 3 former Chief Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the Importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. ... 4 This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community as in many other countries, media facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exerciseof constitutionally protected om of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country. The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement against the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said: Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to preventa violation of their own rights in the character and memory of the deceased.' Petitioners averment that private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a fictional or novelized representation of a person, no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-tolife Story Of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality.
12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said: Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]: xxx xxx xxx The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899). In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of freedom of expression invoked by petitioner. taking into account the interplay of those interests, we hold that under the particular circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of expression are reached when expression touches upon matters of essentially private concern." 13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the Court believes that a different conclusion must here be reached: The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy." 1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the nonbloody change of government that took place at Epifanio de los Santos Avenue in February 1986, and the train of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986. 3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that of any member of his family. 4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:"

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and consented to it, and so could not complaint when they received it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused. The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. "News" includes all events and items of information which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definination of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current events. It extended also to information or education, or even entertainment and amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human activity in general, as well as the reproduction of the public scene in newsreels and travelogues. In determining where to draw the line, the courts were invited to exercise a species of censorship over what the public may be permitted to read; and they were understandably liberal in allowing the benefit of the doubt. 15 Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the culminating events of the change of government in February 1986. Because his participation therein was major in character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues to be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the Philippines.

5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to those events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent. II In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a component of the cause of action is understandable considering that court pleadings are public records; that private respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not identical. For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited any right the might have had to protect his privacy through court processes. WHEREFORE, a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT, and b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been issued by him. No pronouncement as to costs. SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.

Ople vs Torres

29/06/2011 01:30:00

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 127685 July 23, 1998 BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents. PUNO, J.: The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the right most valued by civilized men." 1 Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against further erosion. A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows: ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM WHEREAS, there is a need 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; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government intrumentalities is required to achieve such a system; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following: Sec. 1. Establishment of a National Compoterized Identification Reference System. A decentralized Identification Reference System among the key basic services and social security providers is hereby established. Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members: Head, Presidential Management Staff Secretary, National Economic Development Authority Secretary, Department of the Interior and Local Government Secretary, Department of Health Administrator, Government Service Insurance System, Administrator, Social Security System, Administrator, National Statistics Office Managing Director, National Computer Center. Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC. Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems. Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference.

Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies. Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President through the IACC, on the status of implementation of this undertaking. Sec. 8. Effectivity. This Administrative Order shall take effect immediately. DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six. (SGD.) FIDEL V. RAMOS A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its implementation. Petitioner contends: A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES. B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE. C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION. 2 Respondents counter-argue: A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS; C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES; D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. 3 We now resolve. I As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated. These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the Government Service Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS funds to implement A.O. No. 308. 5

The ripeness for adjudication of the Petition at bar is not affected by the fact that the implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves have started the implementation of A.O. No. 308 without waiting for the rules. As early as January 19, 1997, respondent Social Security System (SSS) caused the publication of a notice to bid for the manufacture of the National Identification (ID) card. 6 Respondent Executive Secretary Torres has publicly announced that representatives from the GSIS and the SSS have completed the guidelines for the national identification system. 7 All signals from the respondents show their unswerving will to implement A.O. No. 308 and we need not wait for the formality of the rules to pass judgment on its constitutionality. In this light, the dissenters insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an important constitutional principle and a fundamental right. II We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to privacy. Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this Court.

The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." 8 The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. 9 The grant of legislative power to Congress is broad, general and comprehensive. 10 The legislative body possesses plenary power for all purposes of civil government. 11 Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. 12 In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest. 13 While Congress is vested with the power to enact laws, the President executes the laws. 14 The executive power is vested in the Presidents. 15 It is generally defined as the power to enforce and administer the laws. 16 It is the power of carrying the laws into practical operation and enforcing their due observance. 17 As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. 18 He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office or interfere with the discretion of its officials. 19 Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively. 20 Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. 21 It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. 22 To this end, he can issue administrative orders, rules and regulations. Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order. An administrative order is:

Sec. 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders. 23 An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. 24 We reject the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987. The Code is a general law and "incorporates in a unified document the major structural, functional and procedural principles of governance." 25 and "embodies changes in administrative structure and procedures designed to serve the people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV on the Executive Branch, Book V on Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of the executive, legislative and judicial branches of government, the organization and administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guideline for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government, i.e, internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. 27

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It establishes for the first time a National Computerized Identification Reference System. Such a System requires a delicate adjustment of various contending state policies the primacy of national security, the extent of privacy interest against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said administrative order redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law. Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no right, imposes no duty, affords no proctection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with government agencies delivering basic services to the people without the contemplated identification card. 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. Given this reality, the contention that A.O. No. 308 gives no right and imposes no duty cannot stand. Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and consequently erodes the plenary power of Congress to make laws. This is contrary to the established approach defining the traditional limits of administrative legislation. As well stated by Fisher: ". . . Many regulations however, bear directly on the public. It is here that administrative legislation must he restricted in its scope and application. Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws." 28 III

Assuming, argued, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is the "right to be let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, 31 viz: Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help give them life and substance . . . various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ''right of the people to be secure in their persons, houses and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held: xxx xxx xxx The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offence on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has wider implications though. The constitutional right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. 33 It is expressly recognized in section 3 (1) of the Bill of Rights: Sec. 3. (1) 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. Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz: 34 Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 2. The right of the people to be secure in their persons, houses papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. xxx xxx xxx

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health as may be provided by law. xxx xxx xxx Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 17. No person shall be compelled to be a witness against himself. Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. 35 It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, 36 and recognizes the privacy of letters and other private communications. 37 The Revised Penal Code makes a crime the violation of secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and trespass to dwelling. 40 Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the Intellectual Property Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of certain information. 44 Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provides our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a "common reference number to establish a linkage among concerned agencies" through the use of "Biometrics Technology" and "computer application designs." Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; a mathematical analysis of biological data." 45 The term "biometrics" has evolved into a broad category of technologies which provide precise confirmation of an individual's identity through the use of the individual's own physiological and behavioral characteristics. 46 A physiological characteristic is a relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facial features. A behavioral characteristic is influenced by the individual's personality and includes voice print, signature and keystroke. 47 Most biometric idenfication systems use a card or personal identificatin number (PIN) for initial identification. The biometric measurement is used to verify that the individual holding the card or entering the PIN is the legitimate owner of the card or PIN. 48 A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns the unique pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in computer data banks 49 and becomes a means of identifying an individual using a service. This technology requires one's fingertip to be scanned every time service or access is provided. 50 Another method is the retinal scan. Retinal scan technology employs optical technology to map the capillary pattern of the retina of the eye. This technology produces a unique print similar to a finger print. 51 Another biometric method is known as the "artificial nose." This device chemically analyzes the unique combination of substances excreted from the skin of people. 52 The latest on the list of biometric achievements is the thermogram. Scientists have found that by taking pictures of a face using infra-red cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and blood vessels all contribute to the individual's personal "heat signature." 53

In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science facts. Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses various technologies in encoding any and all biological characteristics of an individual for identification. It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage. Considering the banquest of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless. A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the adoption of the Identification Reference System will contribute to the "generation of population data for development planning." 54 This is an admission that the PRN will not be used solely for identification but the generation of other data with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN. The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded whether it be in the computer or in the documentary file of the agency. The individual's file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge formidable informatin base through the electronic linkage of the files. 55 The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. 56

We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal infomation about the individual. 57 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 he 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. 58 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. 59 It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. 60 The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. 62 They threaten the very abuses that the Bill of Rights seeks to prevent. 63 The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and transmit it over a national network is one of the most graphic threats of the computer revolution. 64 The computer is capable of producing a comprehensive dossier on individuals out of information given at different times and for varied purposes. 65 It can continue adding to the stored data and keeping the information up to date. Retrieval of stored date is simple. When information of a privileged character finds its way into the computer, it can be extracted together with other data on the subject. 66 Once extracted, the information is putty in the hands of any person. The end of privacy begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the right to privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court will not be true to its role as the ultimate guardian of the people's liberty if it would not immediately smother the sparks that endanger their rights but would rather wait for the fire that could consume them. We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with regard to the Natioal ID and the use of biometrics technology as it stands on quicksand. The reasonableness of a person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. 67 The factual circumstances of the case determines the reasonableness of the expectation. 68 However, other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation. 69 The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable expectation of privacy. 70 As technology advances, the level of reasonably expected privacy decreases. 71 The measure of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted. 72 The security of the computer data file depends not only on the physical inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used, cannot be inferred from its provisions. The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and regulations merely implement the policy of the law or order. On its face, A.O. No. gives the IACC virtually infettered discretion to determine the metes and bounds of the ID System.

Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy. Commonwealth Act. No. 591 penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment and fine. 73 Republic Act. No. 1161 prohibits public disclosure of SSS employment records and reports. 74 These laws, however, apply to records and data with the NSO and the SSS. It is not clear whether they may be applied to data with the other government agencies forming part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is another reason why its enactment should be given to Congress. Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the rational relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed up the implementation of basic government services, (2) eradicate fraud by avoiding duplication of services, and (3) generate population data for development planning. He cocludes that these purposes justify the incursions into the right to privacy for the means are rationally related to the end. 76 We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public officer to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not infringe on the individual's right to privacy. The law was enacted to promote morality in public administration by curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. 78

The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and penalized, and it was narrowly drawn to avoid abuses. IN the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hod that when the integrity of a fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily show the presence of compelling state interests and that the law, rule or regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the Constitutions.

The case of Whalen v. Roe 79 cited by the Solicitor General is also offline. In Whalen, the United States Supreme Court was presented with the question of 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 New York State Controlled Substance Act of 1972 required physicians to identify parties obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the names and addresses of the patients can be recorded in a centralized computer file of the State Department of Health. The plaintiffs, who were patients and doctors, claimed that some people might decline necessary medication because of their fear that the computerized data may be readily available and open to public disclosure; and that once disclosed, it may stigmatize them as drug addicts. 80 The plaintiffs alleged that the statute invaded a constitutionally protected zone of privacy, i.e., the individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important decisions. The U.S. Supreme Court held that while an individual's interest in avoiding disclosuer of personal matter is an aspect of the right to privacy, the statute did not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessary to aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. The patient-identification requirement was a product of an orderly and rational legislative decision made upon recommmendation by a specially appointed commission which held extensive hearings on the matter. Moreover, the statute was narrowly drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down the procedure and requirements for the gathering, storage and retrieval of the informatin. It ebumerated who were authorized to access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In view of these safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police power. As we discussed above, A.O. No. 308 lacks these vital safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains the use of computers to accumulate, store, process, retvieve and transmit data to improve our bureaucracy. Computers work wonders to achieve the efficiency which both government and private industry seek. Many information system in different countries make use of the computer to facilitate important social objective, such as better law enforcement, faster delivery of public services, more efficient management of credit and insurance programs, improvement of telecommunications and streamlining of financial activities. 81 Used wisely, data stored in the computer could help good administration by making accurate and comprehensive information for those who have to frame policy and make key decisions. 82 The benefits of the computer has revolutionized information technology. It developed the internet, 83 introduced the concept of cyberspace 84 and the information superhighway where the individual, armed only with his personal computer, may surf and search all kinds and classes of information from libraries and databases connected to the net. In no uncertain terms, we also underscore 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 85 and a compelling interest justify such intrusions. 86 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. The reason for this stance was laid down in Morfe v. Mutuc, to wit:

The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic disctinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society. 87 IV The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources governments, journalists, employers, social scientists, etc. 88 In th case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a fundamental right. We close with the statement that the right to privacy was not engraved in our Constitution for flattery. IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" declared null and void for being unconstitutional. SO ORDERED. Bellosillo and Martinez, JJ., concur.

Narvasa, C.J., I join Justices Kapunan and Mendoza in their dissents. Regalado, J., In the result. Davide, Jr., In the result and I join Mr. Justice Panganiban in his separate opinion. Romero, J., Please see separate opinion. Melo, J., I join the dissents of Justices Kapunan and Mendoza. Vitug, J., See separate opinion. Kapunan, J., See dissenting opinion. Mendoza, J., Please see dissenting opinion. Panganiban, J., Please see Separate Opinion. Quisumbing, J., I join in dissenting opinion of JJ. Mendoza and Kapunan. Purisima, J., I join in Justice Mendoza's dissenting. Separate Opinions ROMERO, J., separate opinion; What marks offs man from a beast? Aside from the distinguishing physical characteristics, man is a rational being, one who is endowed with intellect which allows him to apply reasoned judgment to problems at hand; he has the innate spiritual faculty which can tell, not only what is right but, as well, what is moral and ethical. Because of his sensibilities, emotions and feelings, he likewise possesses a sense of shame. In varying degrees as dictated by diverse cultures, he erects a wall between himself and the outside world wherein he can retreat in solitude, protecting himself from prying eyes and ears and their extensions, whether form individuals, or much later, from authoritarian intrusions. Piercing through the mists of time, we find the original Man and Woman defying the injunction of God by eating of the forbidden fruit in the Garden. And when their eyes were "opened" forthwith "they sewed fig leaves together, and made themselves aprons." 1 Down the corridors of time, we find man fashioning "fig leaves" of sorts or setting up figurative walls, the better to insulate themselves from the rest of humanity.

Such vague stirrings of the desire "to be left alone," considered "antisocial" by some, led to the development of the concept of "privacy," unheard of among beasts. Different branches of science, have made their own studies of this craving of the human spirit psychological, anthropological sociological and philosophical, with the legal finally giving its imprimatur by elevating it to the status ofa right, specifically a private right. Initially recognized as an aspect of tort law, it created giant waves in legal circles with the publication in the Harvard Law Review 2 of the trailblazing article, "The Right to Privacy," by Samuel D. Warren and Louis D. Brandeis. Whether viewed as a personal or a property right, it found its way in Philippine Constitutions and statutes; this, in spite of the fact that Philippine culture can hardly be said to provide a fertile field for the burgeoning of said right. In fact, our lexicographers have yet to coin a word for it in the Filipino language. Customs and practices, being what they have always been, Filipinos think it perfectly natural and in good taste to inquire into each other's intimate affairs. One has only to sit through a televised talk show to be convinced that what passes for wholesome entertainment is actually an invasion into one's private life, leaving the interviewee embarrassed and outraged by turns. With the overarching influence of common law and the recent advent of the Information Age with its high-tech devices, the right to privacy has expanded to embrace its public law aspect. The Bill of Rights of our evolving Charters, a direct transplant from that of the United States, contains in essence facets of the right to privacy which constitute limitations on the farreaching powers of government. So terrifying are the possibilities of a law such as Administrative Order No. 308 in making inroads into the private lives of the citizens, a virtual Big Brother looking over our shoulder, that it must, without delay, be "slain upon sight" before our society turns totalitarian with each of us, a mindless robot. I, therefore, VOTE for the nullification of A.O. No. 308. VITUG, J., separate opinion;

One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S. Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of Administrative Order No. 308 by the President of the Philippines and the dangers its implementation could bring. I find it hard, nevertheless, to peremptorily assume at this time that the administrative order will be misused and to thereby ignore the possible benefits that can be derived from, or the merits of, a nationwide computerized identification reference system. The great strides and swift advances in technology render it inescapable that one day we will, at all events, have to face up with the reality of seeing extremely sophisticated methods of personal identification and any attempt to stop the inevitable may either be short-lived or even futile. The imperatives, I believe, would instead be to now install specific safeguards and control measures that may be calculated best to ward-off probable ill effects of any such device. Here, it may be apropos to recall the pronouncement of this Court in People vs. Nazario 1 that As a rule, a statute or [an] act may be said to be vague when it lacks comprehensible standards that men "of common intelligence must necessarily guess at its meaning and differ as to its application." It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 2 Administrative Order No. 308 appears to be so extensively drawn that could, indeed, allow unbridled options to become available to its implementors beyond the reasonable comfort of the citizens and of residents alike. Prescinding from the foregoing, and most importantly to this instance, the subject covered by the questioned administrative order can have farreaching consequences that can tell on all individuals, their liberty and privacy, that, to my mind, should make it indispensable and appropriate to have the matter specifically addressed by the Congress of the Philippines, the policy-making body of our government, to which the task should initially belong and to which the authority to formulate and promulgate that policy is constitutionally lodged. WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an undue and impermissible exercise of legislative power by the Executive.

PANGANIBAN, J., separate opinion; I concur only in the result and only on the ground that an executive issuance is not legally sufficient to establish an all-encompassing computerized system of identification in the country. The subject matter contained in AO 308 is beyond the powers of the President to regulate without a legislative enactment. I reserve judgmeht on the issue of wherher a national ID system is an infringement of the constitutional right to privacy or the freedom of thought until after Congress passes, if ever, a law to this effect. Only then, and upon the filing of a proper petition, may the provisions of the statute be scrutinized by the judiciary to determine their constitutional foundation. Until such time, the issue is premature; and any decision thereon, speculative and academic. 1 Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on the constitutional right to privacy and freedom of thought may stil become useful guides to our lawmakers, when and if Congress should deliberate on a bill establishing a national identification system. Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled on these points. The voting is decisive only on the need for the appropriate legislation, and it is only on this ground that the petition is granted by this Court. KAPUNAN, J., dissenting opinion; The pioneering efforts of the executive to adopt a national computerized identification reference system has met fierce opposition. It has spun dark predictions of sinister government ploys to tamper with the citizen's right to privacy and ominous forecasts of a return to authoritarianism. Lost in the uproar, however, is the simple fact that there is nothing in the whole breadth and lenght of Administrative Order No. 308 that suggests a taint constitutional infirmity. A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads: ADMTNISTRATIVE ORDER NO. 308 ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic services and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services and social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following: Sec. 1 Establishment of a National Computerized Identification Reference System. A decentralized Identification Reference System among the key basic services and social security providers is hereby established. Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members: Head Presidential Management Staff Secretary, National Economic Development Authority Secretary, Department of the Interior and Local Government Secretary, Department of Health Administrator, Government Service Insurance System Administrator, Social Security System Administrator, National Statistics Office Managing Director, National Computer Center Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems. Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the National Statistics Offices, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference. Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies. Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President, through the IACC, on the status of implementation of this undertaking. Sec. 8 Effectivity. This Administartive Order shall take effect immediately. DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six. In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues: A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUACE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES. B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION. The National Computerized Identification Reference system to which the NSO, GSIS and SSS are linked as lead members of the IACC is intended to establish uniform standards for ID cards isssued by key government agencies (like the SSS) 1 for the "efficient identification of persons." 2 Under the new system, only one reliable and tamper-proof I.D. need be presented by the cardholder instead of several identification papers such as passports and driver's license, 3 to able to transact with government agencies. The improved ID can be used to facilitate public transactions such as: 1. Payment of SSS and GSIS benefits 2. Applications for driver's license, BIR TIN, passport, marriage license, death certificate, NBI and police clearances, and business permits 3. Availment of Medicare services in hospitals 4. Availment of welfare services 5. Application for work/employment 6. Pre-requisite for Voter's ID. 4 The card may also be used for private transactions such as: 1. Opening of bank accounts 2. Encashment of checks 3. Applications for loans, credit cards, water, power, telephones, pagers, etc. 4. Purchase of stocks 5. Application for work/employment 6. Insurance claims 7. Receipt of payments, checks, letters, valuables, etc. 5 The new identification system would tremendously improve and uplift public service in our country to the benefit of Filipino citizens and resident aliens. It would promote, facilitate and speed up legitimate transactions with government offices as well as with private and business entities. Experience tells us of the constant delays and inconveniences the public has to suffer in availing of basic public services and social security benefits because of inefficient and not too reliable means of identification of the beneficiaries.

Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by the SSS, a lead agency in the implementation of the said order, the following salient features are mentioned: 1. A.O. 308 merely establishes the standards for I.D. cards issued by key government agencies such as SSS and GSIS. 2. It does not establish a national I.D. system neither does it require a national I.D. card for every person. 3. The use of the I.D. is voluntary. 4. The I.D. is not required for delivery of any government service. Everyone has the right to basic government services as long as he is qualified under existing laws. 5. The LD. cannot and will not in any way be used to prevent one to travel. 6. There will be no discrimination Non-holders of the improved I.D. are still entitled to the same services but will be subjected to the usual rigid identification and verification beforehand. I The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the President of legislative power properly belonging to Congress? It is not. The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative powers in the form of executive orders, administrative orders, proclamations, memorandum orders and circulars and general or special orders. 6 An administrative order, like the one under which the new identification system is embodied, has its peculiar meaning under the 1987 Administrative Code: Sec. 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

The National Computerized Identification Reference System was established pursuant to the aforaquoted provision precisely because its principal purpose, as expressly stated in the order, is to provide the people with "the facility to conveniently transact business" with the various government agencies providing basic services. Being the "administrative head," it is unquestionably the responsibility of the President to find ways and means to improve the government bureaucracy, and make it more professional, efficient and reliable, specially those government agencies and instrumentalities which provide basic services and which the citizenry constantly transact with, like the Government Service Insurance System (GSIS), Social Security System (SSS) and National Statistics Office (NSO). The national computerized ID system is one such advancement. To emphasize, the new identification reference system is created to streamline the bureaucracy, cut the red tape and ultimately achieve administrative efficiency. The project, therefore, relates to, is an appropriate subject and falls squarely within the ambit of the Chief Executive's administrative power under which, in order to successfully carry out his administrative duties, he has been granted by law quasi-legislative powers, quoted above. Understandably, strict adherence to the doctrine of separation of power spawns differences of opinion. For we cannot divide the branches of government into water-tight compartment. Even if such is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work Administrative Law, A Casebook, thus states: To be sure, if we think of the separation of powers as carrying out the distinction between legislation and administration with mathematical precision and as dividing the branches of government into watertight compartments, we would probably have to conclude that any exercise of lawmaking authority by an agency is automatically invalid. Such a rigorous application of the constitutional doctrine is neither desirable nor feasible; the only absolute separation that has ever been possible was that in the theoretical writings of a Montesquieu, who looked across at foggy England from his sunny Gascon vineyards and completely misconstrued what he saw. 7 A mingling of powers among the three branches of government is not a novel concept. This blending of powers has become necessary to properly address the complexities brought about by a rapidly developing society and which the traditional branches of government have difficulty coping with. 8

It has been said that: The true meaning of the general doctrine of the separation of powers seems to be that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other department, and that no one department ought to possess directly or indirectly an overruling influence over the others. And it has been that this doctrine should be applied only to the powers which because of their nature are assigned by the constitution itself to one of the departments exclusively. Hence, it does not necessarily follow that an entire and complete separation is either desirable of was ever intended, for such a complete separation would be impracticable if not impossible; there may be-and frequently are-areas in which executive, legislative, and judicial powers blend or overlap; and many officers whose duties cannot be exclusively placed under any one of these heads. The courts have perceived the necessity of avoiding a narrow construction of a state constitutional provision for the division of the powers of the government into three distinct departments, for it is impractical to view the provision from the standpoint of a doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical abstractions and reverts instead to more pragmatic, flexible, functional approach, giving recognition to the fact that then may be a certain degree of blending or admixture of the three powers of the government. Moreover, the doctrine of separation of powers has never been strictly or rigidly applied, and indeed could not be, to all the ramifications of state or national governments; government would prove abortive if it were attempted to follow the policy of separation to the letter. 9 In any case A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative powers expressly granted to him by law and in accordance with his duty as administrative head. Hence, the contention that the President usurped the legislative prerogatives of Congress has no firm basis. II Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I submit that it is premature for the Court to determine the constitutionality or unconstitutionality of the National Computerized Identification Reference System.

Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide constitutional issues, the following requisites must first be satisfied: 1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial determination; 2) the constitutional question must be raised by a proper party; 3) the constitutional question must be raised at the earliest opportunity; and 4) the resolution of the constitutional question must be necessary to the resolution of the case. 10 In this case, it is evident that the first element is missing. Judicial intervention calls for an actual case or controversy which is defined as "an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory." 11 Justice Isagani A. Cruz further expounds that "(a) justifiable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character or from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of special relief through a decree that is conclusive in character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. . . ." 12 A.O. No. 308 does not create any concrete or substantial controversy. It provides the general framework of the National Computerized Identification Reference System and lays down the basic standards (efficiency, convenience and prevention of fraudulent transactions) for its cretion. But as manifestly indicated in the subject order, it is the Inter-Agency Coordinating Committee (IACC) which is tasked to research, study and formulate the guidelines and parameters for the use of Biometrics Technology and in computer application designs that will and define give substance to the new system. 13 This petition is, thus, premature considering that the IACC is still in the process of doing the leg work and has yet to codify and formalize the details of the new system. The majority opines that the petition is ripe for adjudication even without the promulgation of the necessary guidelines in view of the fact that respondents have begun implementation of A.O. No. 308. The SSS, in particular, has started advertising in newspapers the invitation to bid for the production of the I.D. cards. 14

I beg to disagree. It is not the new system itself that is intended to be implemented in the invitation to bid but only the manufacture of the I.D. cards. Biometrics Technology is not and cannot be used in the I.D. cards as no guidelines therefor have yet been laid down by the IACC. Before the assailed system can be set up, it is imperative that the guidelines be issued first. III Without the essential guidelines, the principal contention for invalidating the new identification reference system that it is an impermissible encroachment on the constitutionally recognized right to privacy is plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient basis for a conclusion that the new system to be evolved violates the right to privacy. Said order simply provides the system's general framework. Without the concomitant guidelines, which would spell out in detail how this new identification system would work, the perceived violation of the right to privacy amounts to nothing more than mere surmise and speculation. What has caused much of the hysteria over the National Computerized Identification Reference System is the possible utilization of Biometrics Technology which refers to the use of autnomated matching of physiological or behavioral characteristics to identify a person that would violated the citizen's constitutionally protected right to privacy. The majority opinion has enumerated various forms and methods of Biometrics Technology which if adopted in the National Computaized Identification Reference System would seriously threaten the right to privacy. Among which are biocrypt retinal scan, artificial nose and thermogram. The majority also points to certain alleged deficiencies of A O. No. 308. Thus: 1) A.O. No. 308 does not specify the particular Biometrics Technology that shall be used for the new identification system. 2) The order dots not state whether encoding of data is limited to biological information alone for identification purposes; 3) There is no provision as to who shall control and access the data, under what circumstances and for what purpose; and 4) There are no controls to guard against leakage of information, thus heightening the potential for misuse and abuse. We should not be overwhelmed by the mere mention of the Biometrics Technology and its alleged, yet unfounded "far-reaching effects."

There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the Biometrics Technology that may pose danger to the right of privacy will be adopted. The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need to provide citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities; the computerized system is intended to properly and efficiently identify persons seeking basic services or social security and reduce, if not totally eradicate fraudulent transactions and misreprentation; the national identification reference system is established among the key basic services and social security providers; and finally, the IACC Secretariat shall coordinate with different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology. Consequently, the choice of the particular form and extent of Biometrics Technology that will be applied and the parameters for its use (as will be defined in the guidelines) will necessarily and logically be guided, limited and circumscribed by the afore-stated standards. The fear entertained by the majority on the potential dangers of this new technology is thus securedly allayed by the specific limitations set by the above-mentioned standards. More than this, the right to privacy is well-esconced in and directly protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and certain laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these laws provide penalties for their violation in the form of imprisonment, fines, or damages. These laws will serve as powerful deterrents not only in the establishment of any administrative rule that will violate the constitutionally protected right to privacy, but also to would-be transgressors of such right.

Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe. 15 In that case, a New York statute was challenged for requiring physicians to identify patients obtaining prescription drugs of the statute's "Schedule II" category (a class of drugs having a potential for abuse and a recognized medical use) so the names and addresses of the prescription drug patients can be recorded in a centralized computer file maintained by the New York State Department of Health. Some patients regularly receiving prescription for "Schedule II" drugs and doctors who prescribed such drugs brought an action questioning the validity of the statute on the ground that it violated the plaintiffs' constitutionally protected rights of privacy. In a unanimous decision, the US Supreme Court sustained the validity of the statute on the ground that the patient identification requirement is a reasonable exercise of the State's broad police powers. The Court also held that there is no support in the record for an assumption that the security provisions of the statute will be adiministered improperly. Finally, the Court opined that the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will not provide adequate protection against unwarranted diclosures is not a sufficient reason for invalidating the patient-identification program. To be sure, there is always a possibility of an unwarranted disclosure of confidential matters enomously accumulated in computerized data banks and in government records relating to taxes, public health, social security benefits, military affairs, and similar matters. But as previously pointed out, we have a sufficient number of laws prohibiting and punishing any such unwarranted disclosures. Anent this matter, the observation in Whalen vs. Roe is instructive: . . . We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. . . . 16

The majority laments that as technology advances, the level of reasonably expected privacy decreases. That may be true. However, court should tread daintily on the field of social and economic experimentation lest they impede or obstruct the march of technology to improve public services just on the basis of an unfounded fear that the experimentation violates one's constitutionally protected rights. In the sobering words of Mr. Justice Brandeis: To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitary, capricious or unreaonable. We have power to do this, because the due process clause has been held by he Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold. 17 Again, the concerns of the majority are premature precisely because there are as yet no guidelines that will direct the Court and serve as solid basis for determining the constitutionality of the new identification system. The Court cannot and should not anticipate the constitutional issues and rule on the basis of guesswok. The guidelines would, among others, determine the particular biometrics method that would be used and the specific personal data that would be collected provide the safeguard, (if any) and supply the details on how this new system in supposed to work. The Court should not jump the gun on the Executive. III On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which allows the government agencies included in the new system to obtain funding form their respective budgets, is unconstitutional for being an illegal transfer of appropriations.

It is not so. The budget for the national identification system cannot be deemed a transfer of funds since the same is composed of and will be implemented by the member government agancies. Morever, thses agencies particularly the GSIS and SSS have been issuing some form of identification or membership card. The improved ID cards that will be issued under this new system would just take place of the old identification cards and budget-wise, the funds that were being used to manufacture the old ID cards, which are usually accounted for under the "Supplies and Materials" item of the Government Accounting and Auditing Manual, could now be utilized to fund the new cards. Hence, what is envisioned is not transfer of appropriations but a pooling of funds and resources by the various government agencies involved in the project. WHEREFORE, I vote to dismiss the petition. MENDOZA, J., separate opinion; My vote is to dismiss the petition in this case. First. I cannot find anything in the text of Administrative Order No. 308 of the President of the Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I can see, all the Administrative Orders does is establish an Identification Reference System involving the following service agencies of the government: Presidential Management Staff National Economic Developemnt Authority Department of the Interior and Local Government Department of Health Government Service Isurance System Social Security Office National Computer Center create a committee, composed of the heads of the agencies concerned, to draft rules for the System; direct the use of the Population Reference Number (PRN) generated by the National Census and Statistics Office as the common reference number to link the participating agencies into an Identification Reference System, and the adoption by the agencies of standards in the use of biometrics technology and computer designs; and

provide for the funding of the System from the budgets of the agencies concerned. Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that each and every Filipino and resident will have a file with the government containing, at the very least, his PRN and physiological biometrics such as, but not limited to, his facial features, hand geometry, retinal or iris pattern, DNA pattern, fingerprints, voice characteristics, and signature analysis." In support of his contention, petitioner quotes the following publication surfed from the Internet: The use of biometrics is the means by which an individual may be conclusively identified. There are two types of biometrics identifiers; Physical and behavioral characteristics, Physiological biometrics include facial features, hand geometry, retinal and iris patterns. DNA, and fingerprints characteristics include voice characteristics and signature analysis. 1 I do not see how from the bare provisions of the Order, the full text of which is set forth in the majority opinion, petitioner and the majority can conclude that the Identification Reference System establishes such comprehensive personal information dossiers that can destroy individual privacy. So far as the Order provides, all that is contemplated is an identification system based on data which the government agencies involved have already been requiring individuals making use of their services to give. For example, under C.A. No. 591, 2(a) the National Statistics Office collects "by enumeration, sampling or other methods, statistics and other information concerning population . . . social and economic institutions, and such other statistics as the President may direct." In addition, it is in charge of the administration of the Civil Register, 2 which means that it keeps records of information concerning the civil status of persons, i.e., (a) births, (b) deaths, (c) marriages and their annulments; (d) legitimations, (e) adoptions, (f) acknowledgments of natural children, (g) naturalizations, and (h) changes of name. 3

Other statutes giving government agencies the power to require personal information may be cited. R.A. No. 4136, 23 gives the Land Transportation Office the power to require applicants for a driver's license to give information regarding the following: their full names, date of birth, height, weight, sex, color of eyes, blood type, address, and right thumbprint; 4 while R.A. No. 8239, 5 gives the Department of Foreign Affairs the power to require passport applicants to give information concerning their names, place of birth, date of birth, religious affiliation, marital status, and citizenship. Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover their nakedness with fig leaves, bemoans the fact that technology and institutional pressures have threatened our sense of privacy. On the other hand, the majority would have none of the Identification Reference System "to prevent the shrinking of the right to privacy, once regarded as "the most comprehensive of rights and the right most valued by civilized men."" 5 Indeed, techniques such as fingerprinting or electronic photography in banks have become commonplace. As has been observed, the teaching hospital has come to be accepted as offering madical services that compensate for the loss of the isolation of the sickbed; the increased capacity of applied sciences to utilize more and more kinds of data and the cosequent calls for such data have weakened traditional resistance to disclosure. As the area of relevance, political or scientific, expands, there is strong psychological pressure to yield some ground of privacy. 6 But this is a fact of life to which we must adjust, as long as the intrusion into the domain of privacy is reasonable. In Morfe v. Mutuc, 7 this Court dealt the coup de grace to claims of latitudinarian scope for the right of privacy by quoting the pungent remark of an acute observer of the social scene, Carmen Guerrero-Nakpil: Privacy? What's that? There is no precise word for it in Filipino, and as far as I know any Filipino dialect and there is none because there is no need for it. The concept and practice of privacy are missing from conventional Filipino life. The Filipino believes that privacy is an unnecessary imposition, an eccentricity that is barely pardonable or, at best, an esoteric Western afterthought smacking of legal trickery. 8 Justice Romero herself says in her separate opinion that the word privacy is not even in the lexicon of Filipinos.

As to whether the right of privacy is "the most valued right," we do well to remember the encomiums paid as well to other constitutional rights. For Professor Zechariah Chafee, "The writ of habeas corpus is "the most important human rights provision in the fundamental law,"" 9 For Justice Cardozo, on the other hand, freedom of expression "is the matrix, the indispensable condition of nearly every other form of freedom." 10 The point is that care must be taken in assigning values to constitutional rights for the purpose of calibrating them on the judicial scale, especially if this means employing stricter standards of review for regulations alleged to infringe certain rights deemed to be "most valued by civilized men.'' Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions." 11 In the case of the Identification Reference System, the purpose is to facilitate the transaction of business with service agencies of the government and to prevent fraud and misrepresentation. The personal identification of an individual can facilitate his treatment in any government hospital in case of emergency. On the other hand, the delivery of material assistance, such as free medicines, can be protected from fraud or misrepresentation as the absence of a data base makes it possible for unscrupulous individuals to obtain assistance from more than one government agency. Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of privacy formed by emanations from the several constitutional rights cited by the majority. 12 The question is whether it violates freedom of thought and of conscience guaranteed in the following provisions of our Bill of Rights (Art. III): Sec. 4. No law Shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise enjoyment of religious profession and worship, without discrimination or preference, shall be forever be allowed. No religious test shall be required for the exercise of civil or political rights.

More specifically, the question is whether the establishment of the Identification Reference System will not result in the compilation of massive dossiers on individuals which, beyond their use for identification, can become instruments of thought control. So far, the next of A.O. No. 308 affords no basis for believing that the data gathered can be used for such sinister purpose. As already stated, nothing that is not already being required by the concerned agencies of those making use of their servides is required by the Order in question. The Order simply organizes service agencies of the government into a System for the purpose of facilitating the identification of persons seeking basic services and social security. Thus, the whereas clauses of A.O. No. 308 state: WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic services and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services and social security, and reduce, if not totally eradicate, fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system: The application of biometric technology and the standardization of computer designs can provide service agencies with precise identification of individuals, but what is wrong with that? Indeed, A.O. No. 308 is no more than a directive to government agencies which the President of the Philippines has issued in his capacity as administrative head. 13 It is not a statute. It confers no right; it imposes no duty; it affords no protection; it creates no office. 14 It is, as its name indicates, a mere administrative order, the prescise nature of which is given in the following excerpt from the decision in the early case of Olsen & Co. v. Herstein: 15

[It] 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. Disobedience to or deviation from such an order can be punished only by the power which issued it: and, if that power fails to administer the corrective, then the disobedience goes unpunished. In that relationship no third person or official may intervene, not even the court. Such orders may be very temporary, they being subject to instant revocation or modification by the power which published them. Their very nature, as determined by the relationship which prodecued them, demonstrates clearly the impossibility of any other person enforcing them except the one who created them. An attempt on the part of the courts to enforce such orders would result not only in confusion but, substantially, in departmental anarchy also. 16 Third. There is no basis for believing that, beyond the identification of individuals, the System will be used for illegal purposes. Nor are sanctions lacking for the unauthorized use or disclosure of information gathered by the various agencies constituting the System. For example, as the Solicitor General points out. C.A. No. 591. 4 penalizes the unauthorized use or disclosure of data furnished the NSO with a fine of not more than P600.00 or imprisonment for not more than six months or both.

At all events, at this stage, it is premature to pass on the claim that the Identification Reference System can be used for the purpose of compiling massive dossiers on individuals that can be used to curtail basic civil and political rights since, if at all, this can only be provided in the implementing rules and regulations which have yet to be promulgated. We have already stated that A.O. No. 308 is not a statute. Even in the case of statutes, however, where implementing rules are necessary to put them into effect, it has been held that an attack on their constitutionality would be premature. 17 As Edgar in King Lear puts it, "Ripeness is all." 18 For, to borrow some more Shakespearean lines, The canker galls the infants of the spring Too oft before their buttons be disclos'd. 19 That, more than any doctrine of constitutional law I can think of, succinctly expresses the rule on ripeness, prematurity, and hypothetical, speculative, or conjectural claims. Of special relevance to this case is Laird v. Tatum. 20 There, a class suit was brought seeking declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of civilian political activity having "a potential for civil disorder" exercised "a present inhibiting effect on [respondents'] full expression and utilization of their First Amendment rights." In holding the case nonjusticiable, the U.S. Supreme Court, in an opinion by Chief Justice Burger. said: 21 In recent years this Court has found in a number of cases that constitutional violations may arise from the deterrent or ''chilling," effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. [Citation of cases omitted] In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging. . . .

[T]hese decisions have in no way eroded the "established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he was sustained or is immediately in danger of sustaining a direct injury as the result of that action. . . . The respondents do not meet this test; [the] alleged "chilling" effect may perhaps be seen as arising from respondents' perception of the system as inappropriate to the Army's role under our form of government, or as arising from respondents' beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector, or as arising from respondents' less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents. Allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm: "the federal courts established pursuant to Article III of the Constitution do not render advisory opinions." United Public Workers v. Mitchell, 330 US 75, 89, 91 L Ed 754, 766, 67 S Ct 556 (1947). Fourth. Given the fact that no right of privacy is involved in this case and that any objection to the identification Reference System on the ground that it violates freedom of thought is premature, speculative, or conjectural pending the issuance of the implementing rules, it is clear that petitioner Blas F. Ople has no cause of action and, therefore, no standing to bring this action. Indeed, although he assails A.O. No. 308 on the ground that it violates the right of privacy, he claims no personal injury suffered as a result of the Order in question. Instead, he says he is bringing this action as taxpayer, Senator, and member of the Government Service Insurance System. Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does not involve the exercise of the taxing or spending power of the government. Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an intertest sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing that the funds necessary for implementing the System shall be taken from the budgets of the concerned agencies. A.O. No. 308 violates Art. VI, 25(5) which. provides:

No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. But, as the Solicitor General states: Petitioner's argument is anchored on two erroneous assumptions: one, that all the concerned agencies, including the SSS and the GSIS, receive budgetary support from the national government; and two, that the GAA is the only law whereby public funds are appropriated. Both assumptions are wrong. The SSS and GSIS do not presently receive budgetary support from the National Government. They have achieved self-supporting status such that the contributions of their members are sufficient to finance their expenses. One would be hard pressed to find in the GAA an appropriation of funds to the SSS and the GSIS. Furthermore, their respective charters authorize the SSS and the GSIS to disburse their funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No. 1146 [1977], as amended, Sec. 29) without the need for a separate appropriation from the Congress. Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been impaired by the Administrative Order in question. 22 As already stated, in issuing A.O. No. 308, the President did not exercise the legislative power vested by the Constitution in Congress. He acted on the basis of his own powers as administrative head of the government, as distinguished from his capacity as the Executive. Dean Sinco elucidates the crucial distinction thus:

The Constitution of the Philippines makes the President not only the executive but also the administrative head of the government. . . . Executive power refers to the legal and political function of the President involving the exercise of discretion. Administrative power, on the other hand, concerns itself with the work of applying policies and enforcing orders as determined by proper governmental organs. These two functions are often confused by the public: but they are distinct from each other. The President as the executive authority has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. As administrative head, his duty is to see that every government office is managed and maintained properly by the persons in charge of it in accordance with pertinent laws and regulations. . . . The power of control vested in him by the Constitution makes for a strongly centralized administrative system. It reinforces further his position as the executive of the government, enabling him to comply more effectively with his constitutional duty to enforce the laws. It enables him to fix a uniform standard of a administrative eficiency and to check the official conduct of his agents. The decisions of all the officers within his department are subject to his power of revision, either on his own motion or on the appeal of some individual who might deem himself aggrieved by the action of an administrative official. In case of serious dereliction of duty, he may suspend or remove the officials concerned. 23 For the foregoing reasons, the petition should be DISMISSED. # Separate Opinions ROMERO, J., separate opinion; What marks offs man from a beast? Aside from the distinguishing physical characteristics, man is a rational being, one who is endowed with intellect which allows him to apply reasoned judgment to problems at hand; he has the innate spiritual faculty which can tell, not only what is right but, as well, what is moral and ethical. Because of his sensibilities, emotions and feelings, he likewise possesses a sense of shame. In varying degrees as dictated by diverse cultures, he erects a wall between himself and the outside world wherein he can retreat in solitude, protecting himself from prying eyes and ears and their extensions, whether form individuals, or much later, from authoritarian intrusions.

Piercing through the mists of time, we find the original Man and Woman defying the injunction of God by eating of the forbidden fruit in the Garden. And when their eyes were "opened" forthwith "they sewed fig leaves together, and made themselves aprons." 1 Down the corridors of time, we find man fashioning "fig leaves" of sorts or setting up figurative walls, the better to insulate themselves from the rest of humanity. Such vague stirrings of the desire "to be left alone," considered "antisocial" by some, led to the development of the concept of "privacy," unheard of among beasts. Different branches of science, have made their own studies of this craving of the human spirit psychological, anthropological sociological and philosophical, with the legal finally giving its imprimatur by elevating it to the status ofa right, specifically a private right. Initially recognized as an aspect of tort law, it created giant waves in legal circles with the publication in the Harvard Law Review 2 of the trailblazing article, "The Right to Privacy," by Samuel D. Warren and Louis D. Brandeis. Whether viewed as a personal or a property right, it found its way in Philippine Constitutions and statutes; this, in spite of the fact that Philippine culture can hardly be said to provide a fertile field for the burgeoning of said right. In fact, our lexicographers have yet to coin a word for it in the Filipino language. Customs and practices, being what they have always been, Filipinos think it perfectly natural and in good taste to inquire into each other's intimate affairs. One has only to sit through a televised talk show to be convinced that what passes for wholesome entertainment is actually an invasion into one's private life, leaving the interviewee embarrassed and outraged by turns. With the overarching influence of common law and the recent advent of the Information Age with its high-tech devices, the right to privacy has expanded to embrace its public law aspect. The Bill of Rights of our evolving Charters, a direct transplant from that of the United States, contains in essence facets of the right to privacy which constitute limitations on the farreaching powers of government. So terrifying are the possibilities of a law such as Administrative Order No. 308 in making inroads into the private lives of the citizens, a virtual Big Brother looking over our shoulder, that it must, without delay, be "slain upon sight" before our society turns totalitarian with each of us, a mindless robot.

I, therefore, VOTE for the nullification of A.O. No. 308.

VITUG, J., separate opinion; One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S. Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of Administrative Order No. 308 by the President of the Philippines and the dangers its implementation could bring. I find it hard, nevertheless, to peremptorily assume at this time that the administrative order will be misused and to thereby ignore the possible benefits that can be derived from, or the merits of, a nationwide computerized identification reference system. The great strides and swift advances in technology render it inescapable that one day we will, at all events, have to face up with the reality of seeing extremely sophisticated methods of personal identification and any attempt to stop the inevitable may either be short-lived or even futile. The imperatives, I believe, would instead be to now install specific safeguards and control measures that may be calculated best to ward-off probable ill effects of any such device. Here, it may be apropos to recall the pronouncement of this Court in People vs. Nazario 1 that As a rule, a statute or [an] act may be said to be vague when it lacks comprehensible standards that men "of common intelligence must necessarily guess at its meaning and differ as to its application." It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 2 Administrative Order No. 308 appears to be so extensively drawn that could, indeed, allow unbridled options to become available to its implementors beyond the reasonable comfort of the citizens and of residents alike. Prescinding from the foregoing, and most importantly to this instance, the subject covered by the questioned administrative order can have farreaching consequences that can tell on all individuals, their liberty and privacy, that, to my mind, should make it indispensable and appropriate to have the matter specifically addressed by the Congress of the Philippines, the policy-making body of our government, to which the task should initially belong and to which the authority to formulate and promulgate that policy is constitutionally lodged.

WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an undue and impermissible exercise of legislative power by the Executive. PANGANIBAN, J., separate opinion; I concur only in the result and only on the ground that an executive issuance is not legally sufficient to establish an all-encompassing computerized system of identification in the country. The subject matter contained in AO 308 is beyond the powers of the President to regulate without a legislative enactment. I reserve judgmeht on the issue of wherher a national ID system is an infringement of the constitutional right to privacy or the freedom of thought until after Congress passes, if ever, a law to this effect. Only then, and upon the filing of a proper petition, may the provisions of the statute be scrutinized by the judiciary to determine their constitutional foundation. Until such time, the issue is premature; and any decision thereon, speculative and academic. 1 Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on the constitutional right to privacy and freedom of thought may stil become useful guides to our lawmakers, when and if Congress should deliberate on a bill establishing a national identification system. Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled on these points. The voting is decisive only on the need for the appropriate legislation, and it is only on this ground that the petition is granted by this Court. KAPUNAN, J., dissenting opinion; The pioneering efforts of the executive to adopt a national computerized identification reference system has met fierce opposition. It has spun dark predictions of sinister government ploys to tamper with the citizen's right to privacy and ominous forecasts of a return to authoritarianism. Lost in the uproar, however, is the simple fact that there is nothing in the whole breadth and lenght of Administrative Order No. 308 that suggests a taint constitutional infirmity. A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:

ADMTNISTRATIVE ORDER NO. 308 ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic services and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services and social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following: Sec. 1 Establishment of a National Computerized Identification Reference System. A decentralized Identification Reference System among the key basic services and social security providers is hereby established. Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members: Head Presidential Management Staff Secretary, National Economic Development Authority Secretary, Department of the Interior and Local Government Secretary, Department of Health Administrator, Government Service Insurance System Administrator, Social Security System Administrator, National Statistics Office Managing Director, National Computer Center Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems. Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the National Statistics Offices, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference. Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies. Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President, through the IACC, on the status of implementation of this undertaking. Sec. 8 Effectivity. This Administartive Order shall take effect immediately. DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six. In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues: A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUACE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES. B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION. The National Computerized Identification Reference system to which the NSO, GSIS and SSS are linked as lead members of the IACC is intended to establish uniform standards for ID cards isssued by key government agencies (like the SSS) 1 for the "efficient identification of persons." 2 Under the new system, only one reliable and tamper-proof I.D. need be presented by the cardholder instead of several identification papers such as passports and driver's license, 3 to able to transact with government agencies. The improved ID can be used to facilitate public transactions such as: 1. Payment of SSS and GSIS benefits 2. Applications for driver's license, BIR TIN, passport, marriage license, death certificate, NBI and police clearances, and business permits 3. Availment of Medicare services in hospitals 4. Availment of welfare services 5. Application for work/employment 6. Pre-requisite for Voter's ID. 4 The card may also be used for private transactions such as: 1. Opening of bank accounts 2. Encashment of checks 3. Applications for loans, credit cards, water, power, telephones, pagers, etc. 4. Purchase of stocks 5. Application for work/employment 6. Insurance claims 7. Receipt of payments, checks, letters, valuables, etc. 5 The new identification system would tremendously improve and uplift public service in our country to the benefit of Filipino citizens and resident aliens. It would promote, facilitate and speed up legitimate transactions with government offices as well as with private and business entities. Experience tells us of the constant delays and inconveniences the public has to suffer in availing of basic public services and social security benefits because of inefficient and not too reliable means of identification of the beneficiaries.

Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by the SSS, a lead agency in the implementation of the said order, the following salient features are mentioned: 1. A.O. 308 merely establishes the standards for I.D. cards issued by key government agencies such as SSS and GSIS. 2. It does not establish a national I.D. system neither does it require a national I.D. card for every person. 3. The use of the I.D. is voluntary. 4. The I.D. is not required for delivery of any government service. Everyone has the right to basic government services as long as he is qualified under existing laws. 5. The LD. cannot and will not in any way be used to prevent one to travel. 6. There will be no discrimination Non-holders of the improved I.D. are still entitled to the same services but will be subjected to the usual rigid identification and verification beforehand. I The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the President of legislative power properly belonging to Congress? It is not. The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative powers in the form of executive orders, administrative orders, proclamations, memorandum orders and circulars and general or special orders. 6 An administrative order, like the one under which the new identification system is embodied, has its peculiar meaning under the 1987 Administrative Code: Sec. 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

The National Computerized Identification Reference System was established pursuant to the aforaquoted provision precisely because its principal purpose, as expressly stated in the order, is to provide the people with "the facility to conveniently transact business" with the various government agencies providing basic services. Being the "administrative head," it is unquestionably the responsibility of the President to find ways and means to improve the government bureaucracy, and make it more professional, efficient and reliable, specially those government agencies and instrumentalities which provide basic services and which the citizenry constantly transact with, like the Government Service Insurance System (GSIS), Social Security System (SSS) and National Statistics Office (NSO). The national computerized ID system is one such advancement. To emphasize, the new identification reference system is created to streamline the bureaucracy, cut the red tape and ultimately achieve administrative efficiency. The project, therefore, relates to, is an appropriate subject and falls squarely within the ambit of the Chief Executive's administrative power under which, in order to successfully carry out his administrative duties, he has been granted by law quasi-legislative powers, quoted above. Understandably, strict adherence to the doctrine of separation of power spawns differences of opinion. For we cannot divide the branches of government into water-tight compartment. Even if such is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work Administrative Law, A Casebook, thus states: To be sure, if we think of the separation of powers as carrying out the distinction between legislation and administration with mathematical precision and as dividing the branches of government into watertight compartments, we would probably have to conclude that any exercise of lawmaking authority by an agency is automatically invalid. Such a rigorous application of the constitutional doctrine is neither desirable nor feasible; the only absolute separation that has ever been possible was that in the theoretical writings of a Montesquieu, who looked across at foggy England from his sunny Gascon vineyards and completely misconstrued what he saw. 7 A mingling of powers among the three branches of government is not a novel concept. This blending of powers has become necessary to properly address the complexities brought about by a rapidly developing society and which the traditional branches of government have difficulty coping with. 8

It has been said that: The true meaning of the general doctrine of the separation of powers seems to be that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other department, and that no one department ought to possess directly or indirectly an overruling influence over the others. And it has been that this doctrine should be applied only to the powers which because of their nature are assigned by the constitution itself to one of the departments exclusively. Hence, it does not necessarily follow that an entire and complete separation is either desirable of was ever intended, for such a complete separation would be impracticable if not impossible; there may be-and frequently are-areas in which executive, legislative, and judicial powers blend or overlap; and many officers whose duties cannot be exclusively placed under any one of these heads. The courts have perceived the necessity of avoiding a narrow construction of a state constitutional provision for the division of the powers of the government into three distinct departments, for it is impractical to view the provision from the standpoint of a doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical abstractions and reverts instead to more pragmatic, flexible, functional approach, giving recognition to the fact that then may be a certain degree of blending or admixture of the three powers of the government. Moreover, the doctrine of separation of powers has never been strictly or rigidly applied, and indeed could not be, to all the ramifications of state or national governments; government would prove abortive if it were attempted to follow the policy of separation to the letter. 9 In any case A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative powers expressly granted to him by law and in accordance with his duty as administrative head. Hence, the contention that the President usurped the legislative prerogatives of Congress has no firm basis. II Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I submit that it is premature for the Court to determine the constitutionality or unconstitutionality of the National Computerized Identification Reference System.

Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide constitutional issues, the following requisites must first be satisfied: 1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial determination; 2) the constitutional question must be raised by a proper party; 3) the constitutional question must be raised at the earliest opportunity; and 4) the resolution of the constitutional question must be necessary to the resolution of the case. 10 In this case, it is evident that the first element is missing. Judicial intervention calls for an actual case or controversy which is defined as "an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory." 11 Justice Isagani A. Cruz further expounds that "(a) justifiable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character or from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of special relief through a decree that is conclusive in character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. . . ." 12 A.O. No. 308 does not create any concrete or substantial controversy. It provides the general framework of the National Computerized Identification Reference System and lays down the basic standards (efficiency, convenience and prevention of fraudulent transactions) for its cretion. But as manifestly indicated in the subject order, it is the Inter-Agency Coordinating Committee (IACC) which is tasked to research, study and formulate the guidelines and parameters for the use of Biometrics Technology and in computer application designs that will and define give substance to the new system. 13 This petition is, thus, premature considering that the IACC is still in the process of doing the leg work and has yet to codify and formalize the details of the new system. The majority opines that the petition is ripe for adjudication even without the promulgation of the necessary guidelines in view of the fact that respondents have begun implementation of A.O. No. 308. The SSS, in particular, has started advertising in newspapers the invitation to bid for the production of the I.D. cards. 14

I beg to disagree. It is not the new system itself that is intended to be implemented in the invitation to bid but only the manufacture of the I.D. cards. Biometrics Technology is not and cannot be used in the I.D. cards as no guidelines therefor have yet been laid down by the IACC. Before the assailed system can be set up, it is imperative that the guidelines be issued first. III Without the essential guidelines, the principal contention for invalidating the new identification reference system that it is an impermissible encroachment on the constitutionally recognized right to privacy is plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient basis for a conclusion that the new system to be evolved violates the right to privacy. Said order simply provides the system's general framework. Without the concomitant guidelines, which would spell out in detail how this new identification system would work, the perceived violation of the right to privacy amounts to nothing more than mere surmise and speculation. What has caused much of the hysteria over the National Computerized Identification Reference System is the possible utilization of Biometrics Technology which refers to the use of autnomated matching of physiological or behavioral characteristics to identify a person that would violated the citizen's constitutionally protected right to privacy. The majority opinion has enumerated various forms and methods of Biometrics Technology which if adopted in the National Computaized Identification Reference System would seriously threaten the right to privacy. Among which are biocrypt retinal scan, artificial nose and thermogram. The majority also points to certain alleged deficiencies of A O. No. 308. Thus: 1) A.O. No. 308 does not specify the particular Biometrics Technology that shall be used for the new identification system. 2) The order dots not state whether encoding of data is limited to biological information alone for identification purposes; 3) There is no provision as to who shall control and access the data, under what circumstances and for what purpose; and 4) There are no controls to guard against leakage of information, thus heightening the potential for misuse and abuse. We should not be overwhelmed by the mere mention of the Biometrics Technology and its alleged, yet unfounded "far-reaching effects."

There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the Biometrics Technology that may pose danger to the right of privacy will be adopted. The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need to provide citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities; the computerized system is intended to properly and efficiently identify persons seeking basic services or social security and reduce, if not totally eradicate fraudulent transactions and misreprentation; the national identification reference system is established among the key basic services and social security providers; and finally, the IACC Secretariat shall coordinate with different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology. Consequently, the choice of the particular form and extent of Biometrics Technology that will be applied and the parameters for its use (as will be defined in the guidelines) will necessarily and logically be guided, limited and circumscribed by the afore-stated standards. The fear entertained by the majority on the potential dangers of this new technology is thus securedly allayed by the specific limitations set by the above-mentioned standards. More than this, the right to privacy is well-esconced in and directly protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and certain laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these laws provide penalties for their violation in the form of imprisonment, fines, or damages. These laws will serve as powerful deterrents not only in the establishment of any administrative rule that will violate the constitutionally protected right to privacy, but also to would-be transgressors of such right.

Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe. 15 In that case, a New York statute was challenged for requiring physicians to identify patients obtaining prescription drugs of the statute's "Schedule II" category (a class of drugs having a potential for abuse and a recognized medical use) so the names and addresses of the prescription drug patients can be recorded in a centralized computer file maintained by the New York State Department of Health. Some patients regularly receiving prescription for "Schedule II" drugs and doctors who prescribed such drugs brought an action questioning the validity of the statute on the ground that it violated the plaintiffs' constitutionally protected rights of privacy. In a unanimous decision, the US Supreme Court sustained the validity of the statute on the ground that the patient identification requirement is a reasonable exercise of the State's broad police powers. The Court also held that there is no support in the record for an assumption that the security provisions of the statute will be adiministered improperly. Finally, the Court opined that the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will not provide adequate protection against unwarranted diclosures is not a sufficient reason for invalidating the patient-identification program. To be sure, there is always a possibility of an unwarranted disclosure of confidential matters enomously accumulated in computerized data banks and in government records relating to taxes, public health, social security benefits, military affairs, and similar matters. But as previously pointed out, we have a sufficient number of laws prohibiting and punishing any such unwarranted disclosures. Anent this matter, the observation in Whalen vs. Roe is instructive: . . . We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. . . . 16

The majority laments that as technology advances, the level of reasonably expected privacy decreases. That may be true. However, court should tread daintily on the field of social and economic experimentation lest they impede or obstruct the march of technology to improve public services just on the basis of an unfounded fear that the experimentation violates one's constitutionally protected rights. In the sobering words of Mr. Justice Brandeis: To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitary, capricious or unreaonable. We have power to do this, because the due process clause has been held by he Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold. 17 Again, the concerns of the majority are premature precisely because there are as yet no guidelines that will direct the Court and serve as solid basis for determining the constitutionality of the new identification system. The Court cannot and should not anticipate the constitutional issues and rule on the basis of guesswok. The guidelines would, among others, determine the particular biometrics method that would be used and the specific personal data that would be collected provide the safeguard, (if any) and supply the details on how this new system in supposed to work. The Court should not jump the gun on the Executive. III On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which allows the government agencies included in the new system to obtain funding form their respective budgets, is unconstitutional for being an illegal transfer of appropriations.

It is not so. The budget for the national identification system cannot be deemed a transfer of funds since the same is composed of and will be implemented by the member government agancies. Morever, thses agencies particularly the GSIS and SSS have been issuing some form of identification or membership card. The improved ID cards that will be issued under this new system would just take place of the old identification cards and budget-wise, the funds that were being used to manufacture the old ID cards, which are usually accounted for under the "Supplies and Materials" item of the Government Accounting and Auditing Manual, could now be utilized to fund the new cards. Hence, what is envisioned is not transfer of appropriations but a pooling of funds and resources by the various government agencies involved in the project. WHEREFORE, I vote to dismiss the petition. MENDOZA, J., separate opinion; My vote is to dismiss the petition in this case. First. I cannot find anything in the text of Administrative Order No. 308 of the President of the Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I can see, all the Administrative Orders does is establish an Identification Reference System involving the following service agencies of the government: Presidential Management Staff National Economic Developemnt Authority Department of the Interior and Local Government Department of Health Government Service Isurance System Social Security Office National Computer Center create a committee, composed of the heads of the agencies concerned, to draft rules for the System; direct the use of the Population Reference Number (PRN) generated by the National Census and Statistics Office as the common reference number to link the participating agencies into an Identification Reference System, and the adoption by the agencies of standards in the use of biometrics technology and computer designs; and

provide for the funding of the System from the budgets of the agencies concerned. Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that each and every Filipino and resident will have a file with the government containing, at the very least, his PRN and physiological biometrics such as, but not limited to, his facial features, hand geometry, retinal or iris pattern, DNA pattern, fingerprints, voice characteristics, and signature analysis." In support of his contention, petitioner quotes the following publication surfed from the Internet: The use of biometrics is the means by which an individual may be conclusively identified. There are two types of biometrics identifiers; Physical and behavioral characteristics, Physiological biometrics include facial features, hand geometry, retinal and iris patterns. DNA, and fingerprints characteristics include voice characteristics and signature analysis. 1 I do not see how from the bare provisions of the Order, the full text of which is set forth in the majority opinion, petitioner and the majority can conclude that the Identification Reference System establishes such comprehensive personal information dossiers that can destroy individual privacy. So far as the Order provides, all that is contemplated is an identification system based on data which the government agencies involved have already been requiring individuals making use of their services to give. For example, under C.A. No. 591, 2(a) the National Statistics Office collects "by enumeration, sampling or other methods, statistics and other information concerning population . . . social and economic institutions, and such other statistics as the President may direct." In addition, it is in charge of the administration of the Civil Register, 2 which means that it keeps records of information concerning the civil status of persons, i.e., (a) births, (b) deaths, (c) marriages and their annulments; (d) legitimations, (e) adoptions, (f) acknowledgments of natural children, (g) naturalizations, and (h) changes of name. 3

Other statutes giving government agencies the power to require personal information may be cited. R.A. No. 4136, 23 gives the Land Transportation Office the power to require applicants for a driver's license to give information regarding the following: their full names, date of birth, height, weight, sex, color of eyes, blood type, address, and right thumbprint; 4 while R.A. No. 8239, 5 gives the Department of Foreign Affairs the power to require passport applicants to give information concerning their names, place of birth, date of birth, religious affiliation, marital status, and citizenship. Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover their nakedness with fig leaves, bemoans the fact that technology and institutional pressures have threatened our sense of privacy. On the other hand, the majority would have none of the Identification Reference System "to prevent the shrinking of the right to privacy, once regarded as "the most comprehensive of rights and the right most valued by civilized men."" 5 Indeed, techniques such as fingerprinting or electronic photography in banks have become commonplace. As has been observed, the teaching hospital has come to be accepted as offering madical services that compensate for the loss of the isolation of the sickbed; the increased capacity of applied sciences to utilize more and more kinds of data and the cosequent calls for such data have weakened traditional resistance to disclosure. As the area of relevance, political or scientific, expands, there is strong psychological pressure to yield some ground of privacy. 6 But this is a fact of life to which we must adjust, as long as the intrusion into the domain of privacy is reasonable. In Morfe v. Mutuc, 7 this Court dealt the coup de grace to claims of latitudinarian scope for the right of privacy by quoting the pungent remark of an acute observer of the social scene, Carmen Guerrero-Nakpil: Privacy? What's that? There is no precise word for it in Filipino, and as far as I know any Filipino dialect and there is none because there is no need for it. The concept and practice of privacy are missing from conventional Filipino life. The Filipino believes that privacy is an unnecessary imposition, an eccentricity that is barely pardonable or, at best, an esoteric Western afterthought smacking of legal trickery. 8 Justice Romero herself says in her separate opinion that the word privacy is not even in the lexicon of Filipinos.

As to whether the right of privacy is "the most valued right," we do well to remember the encomiums paid as well to other constitutional rights. For Professor Zechariah Chafee, "The writ of habeas corpus is "the most important human rights provision in the fundamental law,"" 9 For Justice Cardozo, on the other hand, freedom of expression "is the matrix, the indispensable condition of nearly every other form of freedom." 10 The point is that care must be taken in assigning values to constitutional rights for the purpose of calibrating them on the judicial scale, especially if this means employing stricter standards of review for regulations alleged to infringe certain rights deemed to be "most valued by civilized men.'' Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions." 11 In the case of the Identification Reference System, the purpose is to facilitate the transaction of business with service agencies of the government and to prevent fraud and misrepresentation. The personal identification of an individual can facilitate his treatment in any government hospital in case of emergency. On the other hand, the delivery of material assistance, such as free medicines, can be protected from fraud or misrepresentation as the absence of a data base makes it possible for unscrupulous individuals to obtain assistance from more than one government agency. Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of privacy formed by emanations from the several constitutional rights cited by the majority. 12 The question is whether it violates freedom of thought and of conscience guaranteed in the following provisions of our Bill of Rights (Art. III): Sec. 4. No law Shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise enjoyment of religious profession and worship, without discrimination or preference, shall be forever be allowed. No religious test shall be required for the exercise of civil or political rights.

More specifically, the question is whether the establishment of the Identification Reference System will not result in the compilation of massive dossiers on individuals which, beyond their use for identification, can become instruments of thought control. So far, the next of A.O. No. 308 affords no basis for believing that the data gathered can be used for such sinister purpose. As already stated, nothing that is not already being required by the concerned agencies of those making use of their servides is required by the Order in question. The Order simply organizes service agencies of the government into a System for the purpose of facilitating the identification of persons seeking basic services and social security. Thus, the whereas clauses of A.O. No. 308 state: WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic services and social security providers and other government instrumentalities; WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services and social security, and reduce, if not totally eradicate, fraudulent transactions and misrepresentations; WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system: The application of biometric technology and the standardization of computer designs can provide service agencies with precise identification of individuals, but what is wrong with that? Indeed, A.O. No. 308 is no more than a directive to government agencies which the President of the Philippines has issued in his capacity as administrative head. 13 It is not a statute. It confers no right; it imposes no duty; it affords no protection; it creates no office. 14 It is, as its name indicates, a mere administrative order, the prescise nature of which is given in the following excerpt from the decision in the early case of Olsen & Co. v. Herstein: 15

[It] 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. Disobedience to or deviation from such an order can be punished only by the power which issued it: and, if that power fails to administer the corrective, then the disobedience goes unpunished. In that relationship no third person or official may intervene, not even the court. Such orders may be very temporary, they being subject to instant revocation or modification by the power which published them. Their very nature, as determined by the relationship which prodecued them, demonstrates clearly the impossibility of any other person enforcing them except the one who created them. An attempt on the part of the courts to enforce such orders would result not only in confusion but, substantially, in departmental anarchy also. 16 Third. There is no basis for believing that, beyond the identification of individuals, the System will be used for illegal purposes. Nor are sanctions lacking for the unauthorized use or disclosure of information gathered by the various agencies constituting the System. For example, as the Solicitor General points out. C.A. No. 591. 4 penalizes the unauthorized use or disclosure of data furnished the NSO with a fine of not more than P600.00 or imprisonment for not more than six months or both.

At all events, at this stage, it is premature to pass on the claim that the Identification Reference System can be used for the purpose of compiling massive dossiers on individuals that can be used to curtail basic civil and political rights since, if at all, this can only be provided in the implementing rules and regulations which have yet to be promulgated. We have already stated that A.O. No. 308 is not a statute. Even in the case of statutes, however, where implementing rules are necessary to put them into effect, it has been held that an attack on their constitutionality would be premature. 17 As Edgar in King Lear puts it, "Ripeness is all." 18 For, to borrow some more Shakespearean lines, The canker galls the infants of the spring Too oft before their buttons be disclos'd. 19 That, more than any doctrine of constitutional law I can think of, succinctly expresses the rule on ripeness, prematurity, and hypothetical, speculative, or conjectural claims. Of special relevance to this case is Laird v. Tatum. 20 There, a class suit was brought seeking declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of civilian political activity having "a potential for civil disorder" exercised "a present inhibiting effect on [respondents'] full expression and utilization of their First Amendment rights." In holding the case nonjusticiable, the U.S. Supreme Court, in an opinion by Chief Justice Burger. said: 21 In recent years this Court has found in a number of cases that constitutional violations may arise from the deterrent or ''chilling," effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. [Citation of cases omitted] In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging. . . .

[T]hese decisions have in no way eroded the "established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he was sustained or is immediately in danger of sustaining a direct injury as the result of that action. . . . The respondents do not meet this test; [the] alleged "chilling" effect may perhaps be seen as arising from respondents' perception of the system as inappropriate to the Army's role under our form of government, or as arising from respondents' beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector, or as arising from respondents' less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents. Allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm: "the federal courts established pursuant to Article III of the Constitution do not render advisory opinions." United Public Workers v. Mitchell, 330 US 75, 89, 91 L Ed 754, 766, 67 S Ct 556 (1947). Fourth. Given the fact that no right of privacy is involved in this case and that any objection to the identification Reference System on the ground that it violates freedom of thought is premature, speculative, or conjectural pending the issuance of the implementing rules, it is clear that petitioner Blas F. Ople has no cause of action and, therefore, no standing to bring this action. Indeed, although he assails A.O. No. 308 on the ground that it violates the right of privacy, he claims no personal injury suffered as a result of the Order in question. Instead, he says he is bringing this action as taxpayer, Senator, and member of the Government Service Insurance System. Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does not involve the exercise of the taxing or spending power of the government. Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an intertest sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing that the funds necessary for implementing the System shall be taken from the budgets of the concerned agencies. A.O. No. 308 violates Art. VI, 25(5) which. provides:

No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. But, as the Solicitor General states: Petitioner's argument is anchored on two erroneous assumptions: one, that all the concerned agencies, including the SSS and the GSIS, receive budgetary support from the national government; and two, that the GAA is the only law whereby public funds are appropriated. Both assumptions are wrong. The SSS and GSIS do not presently receive budgetary support from the National Government. They have achieved self-supporting status such that the contributions of their members are sufficient to finance their expenses. One would be hard pressed to find in the GAA an appropriation of funds to the SSS and the GSIS. Furthermore, their respective charters authorize the SSS and the GSIS to disburse their funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No. 1146 [1977], as amended, Sec. 29) without the need for a separate appropriation from the Congress. Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been impaired by the Administrative Order in question. 22 As already stated, in issuing A.O. No. 308, the President did not exercise the legislative power vested by the Constitution in Congress. He acted on the basis of his own powers as administrative head of the government, as distinguished from his capacity as the Executive. Dean Sinco elucidates the crucial distinction thus:

The Constitution of the Philippines makes the President not only the executive but also the administrative head of the government. . . . Executive power refers to the legal and political function of the President involving the exercise of discretion. Administrative power, on the other hand, concerns itself with the work of applying policies and enforcing orders as determined by proper governmental organs. These two functions are often confused by the public: but they are distinct from each other. The President as the executive authority has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. As administrative head, his duty is to see that every government office is managed and maintained properly by the persons in charge of it in accordance with pertinent laws and regulations. . . . The power of control vested in him by the Constitution makes for a strongly centralized administrative system. It reinforces further his position as the executive of the government, enabling him to comply more effectively with his constitutional duty to enforce the laws. It enables him to fix a uniform standard of a administrative eficiency and to check the official conduct of his agents. The decisions of all the officers within his department are subject to his power of revision, either on his own motion or on the appeal of some individual who might deem himself aggrieved by the action of an administrative official. In case of serious dereliction of duty, he may suspend or remove the officials concerned. 23 For the foregoing reasons, the petition should be DISMISSED.

Ramirez vs CA
Ramirez vs. Court of Appeals

29/06/2011 01:30:00

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 93833 September 28, 1995 SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents. KAPUNAN, J.: A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1 In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows: Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am. Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo. CHUCHI Kasi, naka duty ako noon. ESG Tapos iniwan no. (Sic) CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon

ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m. ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita). CHUCHI Itutuloy ko na M'am sana ang duty ko. ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa. CHUCHI Kumuha kami ng exam noon. ESG Oo, pero hindi ka papasa. CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo ESG Kukunin ka kasi ako. CHUCHI Eh, di sana ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako. CHUCHI Mag-eexplain ako. ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko. ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon. CHUCHI Kasi M'am, binbalikan ako ng mga taga Union. ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na. CHUCHI Ina-ano ko m'am na utang na loob. ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako. CHUCHI Paano kita nilapastanganan? ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3 As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith: INFORMATION The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person. Contrary to law. Pasay City, Metro Manila, September 16, 1988. MARIANO M. CUNETA Asst. City Fiscal Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a person other than a participant to the communication. 4 From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989. On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void, and holding that: [T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in grave abuse of discretion correctible by certiorari. 5 Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.

------Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 10 We disagree. First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12 Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides: Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkietalkie or tape recorder, or however otherwise described.

-----The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "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" 13 under this provision of R.A. 4200. A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. Thus: xxx xxx xxx Senator Taada: That qualified only "overhear". Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside? Senator Taada: That is covered by the purview of this bill, Your Honor. Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings? Senator Taada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the parties. Senator Padilla: Now, would that be reasonable, your Honor?

Senator Taada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know that the observations are being recorded. Senator Padilla: This might reduce the utility of recorders. Senator Taada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that the observations are being recorded. Senator Padilla: Now, I can understand. Senator Taada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own interest, well, he cannot complain any more. But if you are going to take a recording of the observations and remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair. xxx xxx xxx (Congression Record, Vol. III, No. 31, p. 584, March 12, 1964) Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly. Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person not between a speaker and a public. xxx xxx xxx (Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964) xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish. Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." 14 Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals free from every unjustifiable intrusion by whatever means. 17 In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of taperecorders as among the acts punishable. WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner. SO ORDERED. Posted on February 11, 2009 by danabatnag Rule involved: Ubi lex non distinguit nec nos distinguere debemos. Where the law makes no distinctions, one does not distinguish.

Issue: Does the anti-wiretapping law, RA 4200, allow parties to a conversation to tape it without the consent of all those involved? What was construed:The word any in Sec. 1 of RA 4200: It shall be unlawful for ANY person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a Dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. Facts of the case: Soccoro Ramirez was scolded by Ester Garcia inside Garcias office. Ramirez taped the conversation and later filed charges against Garcia for insulting and humiliating her, using as evidence the transcript of the conversation, based on the tape recording.Garcia filed criminal charges against Ramirez for violating the anti-wire tapping act, because it was done without her knowledge and consent. Ramirez claimed that what the law forbids is for other parties, who are not part of the conversation, to record it using the instruments enumerated in the law (there was an earlier case that was dismissed because the instrument used was not mentioned in the law). The trial court ruled in favor of Ramirez, granting a motion to quash on the ground that the facts charged do not constitute an offense, but the Court of Appeals reversed it. Ratio: First, the court noted that the provision makes it clear that it is illegal for any person to secretly record a conversation, unless authorized by all parties involved.The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication.The congressional records also showed that the intent was that permission must be sought from all parties in the conversation. This is a complete ban on tape recorded conversations taken without the authorization of all the parties, Sen. Tanada said during the deliberations.The provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish. Decision: Petition denied. Decision of CA affirmed. Costs against Ramirez.

Gaanan vs IAC

29/06/2011 01:30:00

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-69809 October 16, 1986 EDGARDO A. GAANAN, petitioner, vs. INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents. GUTIERREZ, JR., J.: This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a telephone line. The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner. In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the living room of complainant's residence discussing the terms for the withdrawal of the complaint for direct assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5). That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request, appellant went to the office of Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5). When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation through a telephone extension so as to hear personally the proposed conditions for the settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office; (b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School; (c) Pl,000.00 to be given to the Don Bosco Faculty club; (d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High School; (e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later; (f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School; (g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media; (h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48). Twenty minutes later, complainant called up again to ask Laconico was agreeable to the conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12). Complainant called up again and instructed Laconico to give the money to his wife at the office of the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary.

Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the complainant for robbery/extortion which he filed against complainant. Since appellant listened to the telephone conversation without complainant's consent, complainant charged appellant and Laconico with violation of the Anti-Wiretapping Act. After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the appellate court. On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the complainant; and that the extension telephone which was used by the petitioner to overhear the telephone conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200. In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether or not the telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner. Section 1 of Rep. Act No. 4200 provides: Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkietalkie or tape-recorder, or however otherwise described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition. We rule for the petitioner. We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion. There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private" in the sense that the words uttered were made between one person and another as distinguished from words between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen to and overhear the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizzen who happens to pick up his telephone and who overhears the details of a crime might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never intended for such mischievous results. The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their bosses' telephones are sometimes asked to use answering or recording devices to record business conversations between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that matter, would a "party line" be a device or arrangement under the law? The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension telephones were already widely used instruments, probably the most popularly known communication device. Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set which can be detached or removed and can be transferred away from one place to another and to be plugged or attached to a main telephone line to get the desired communication corning from the other party or end. The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words. An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120). In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443444), we ruled: Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule that 'particularization followed by a general expression will ordinarily be restricted to the former' is based on the fact in human experience that usually the minds of parties are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181). Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation. An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place ' to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138): Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of 605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose. Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule: American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184). In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited device or arrangement" but of greater importance, they were more concerned with penalizing the act of recording than the act of merely listening to a telephone conversation. xxx xxx xxx Senator Taada. Another possible objection to that is entrapment which is certainly objectionable. It is made possible by special amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment than without it, because with the amendment the evidence of entrapment would only consist of government testimony as against the testimony of the defendant. With this amendment, they would have the right, and the government officials and the person in fact would have the right to tape record their conversation. Senator Taada. In case of entrapment, it would be the government. Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the court would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In these cases, as experienced lawyers, we know that the Court go with the peace offices. (Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964). xxx xxx xxx Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening in, he could falsify the testimony and there is no way of checking it. But if you allow him to record or make a recording in any form of what is happening, then the chances of falsifying the evidence is not very much. Senator Taada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If we could devise a way by which we could prevent the presentation of false testimony, it would be wonderful. But what this bill intends to prohibit is the use of tape record and other electronic devices to intercept private conversations which later on will be used in court. (Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629). It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements. WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.

Zulueta vs CA

29/06/2011 01:30:00

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 107383 February 20, 1996 CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents. DECISION MENDOZA, J.: This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from private respondent's clinic without the latter's knowledge and consent. The facts are as follows: Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from "using or submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition. There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court declared the documents and papers to be properties of private respondent, ordered petitioner to return them to private respondent and enjoined her from using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct, For this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's complaint. Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix; Jr. which it found to be "impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that: .... 4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1 to J-7." On September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence, during the enforceability of this Court's order, respondent's request for petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity of the questioned annexes, At that point in time, would it have been malpractice for respondent to use petitioner's admission as evidence against him in the legal separation case pending in the Regional Trial Court of Makati? Respondent submits it is not malpractice. Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself of her husband's admission and use the same in her action for legal separation cannot be treated as malpractice. Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to their genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no means does the decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction issued by the trial court, it was only because, at the time he used the documents and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial court's order was dismissed and, therefore, the prohibition against the further use of the documents and papers became effective again. Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the privacy of communication and correspondence [to be] inviolable"3 the privacy of communication and correspondence is inviolable is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law."4 Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any proceeding." 5 The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists.6 Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. WHEREFORE, the petition for review is DENIED for lack of merit. SO ORDERED. Regalado, Romero and Puno, JJ., concur.

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