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.

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

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:

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:

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):

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:

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

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,

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

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:

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: