G.R. No. 127685 - Separate Opinion

G.R. No. 127685, July 23, 1998,
♦ Decision, Puno, [J]
♦ Separate Opinion, Romero, [J]
♦ Separate Opinion, Vitug, [J]
♦ Separate Opinion, Panganiban, [J]
♦ Dissenting Opinion, Kapunan, [J]
♦ Separate Opinion, Mendoza, [J]

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.

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.

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:

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:

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?

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:

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:

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

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.

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;

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.

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:

We should not be overwhelmed by the mere mention of the Biometrics Technology and its alleged, yet unfounded "far-reaching effects."ᇈWᑭHIL

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.(awÞhi(

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:

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:

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.

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.