4a Right To Privacy

CONTENTS
DISINI VS SECRETARY OF JUSTCE........................................................................................................................ 2

OPLE VS TORRES................................................................................................................................................... 32
ZULUETA VS CA...................................................................................................................................................... 43
KILUSANG MAYO UNO VS ERMITA........................................................................................................................ 45
SABIO VS GORDON................................................................................................................................................ 63
DISINI VS SECRETARY OF JUSTCE

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 203335
February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.
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G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
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G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,
BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
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G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
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G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT
OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU
OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
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G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno
Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.
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G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND
R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS
GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government,Respondents.
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G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government),Respondents.
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G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE ePETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175,Respondents.
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G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.
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G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY
EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity
as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.
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G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police, Respondents.
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G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
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G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.
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G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR
MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.
CASIO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA
TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for
special audiences like associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting
defamatory statements against him that people can read.
And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government
has a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories
of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts
as crimes and impose penalties for their commission as well as provisions that would enable the government to
track down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime
of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this
Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(1) Illegal Access. The access to the whole or any part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with
the fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional construct, 1 useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest. 2 Later, the strict scrutiny standard was used to assess the validity of laws dealing
with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act
accessing the computer system of another without right. It is a universally condemned conduct. 4
Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ
tools and techniques used by criminal hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target systems security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records. 5
Besides, a clients engagement of an ethical hacker requires an agreement between them as to the extent of the
search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free
card."6Since the ethical hacker does his job with prior permission from the client, such permission would insulate
him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Act:
xxxx
(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on
these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may
not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other peoples computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect 9 or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct. 10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no
tendency to intimidate the free exercise of ones constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law

Act:
xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause 12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take
the name of another in satire, parody, or any other literary device. For example, supposing there exists a well
known billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person
who registers such name because he claims it to be his pseudo-name and another who registers the name
because it happens to be his real name. Petitioners claim that, considering the substantial distinction between the
two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others
who are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures. 13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon" 15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights
which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the
right to the protection of the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches 16 and
seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. 18
The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data. 19 The
law punishes those who acquire or use such identifying information without right, implicitly to cause damage.
Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire anothers personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft
of identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. 20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act:
xxxx
10
(c) Content-related Offenses:

(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They express fear
that private communications of sexual character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace.
In common usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded,"
or "a token of love (as a ribbon) usually worn conspicuously." 22 This meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of married
couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give
a proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of obscenity to some." 23 The
understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is
necessary to constitute the illegal cybersex. 24 The Act actually seeks to punish cyber prostitution, white slave trade,
and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by
webcam.25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activityis not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act
of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography." 26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration. 27
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it
apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the
lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has
intended.
xxxx
xxxx
(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
11
It seems that the above merely expands the scope of the Anti-Child Pornography Act of 2009 31 (ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPAs definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when
uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography" 33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish. 34 Petitioners are wary that a person who merely doodles on
paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one
who formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who
replies to the tweet could be considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.
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(3) Unsolicited Commercial Communications. The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same
source;
(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication does not purposely include misleading information
in any part of the message in order to induce the recipients to read the message.
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The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence
or comment was said to be making a "spam." The term referred to a Monty Pythons Flying Circus scene in which
actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu. 35
The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owners peaceful enjoyment of his property.
Transmitting spams amounts to trespass to ones privacy since the person sending out spams enters the recipients
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such
ads. What matters is that the recipient has the option of not opening or reading these mail ads. That is true with
spams. Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.
Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos,
or both, in addition to the civil action which may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:
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(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code 37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with
the higher standard of "actual malice" as a basis for conviction. 38 Petitioners argue that inferring "presumed malice"
from the accuseds defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin
v. People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not. 42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice. 43
The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false,
is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Societys interest and the maintenance of good government demand a full discussion of public
affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in
fact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the
above case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine
ofP6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The
law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. 45For
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his defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in
fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the countrys
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement should constitute an allencompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise
carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as
may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel
were enacted. The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing style. 50 In a sense, they are a
world apart in terms of quickness of the readers reaction to defamatory statements posted in cyberspace,
facilitated by one-click reply options offered by the networking site as well as by the speed with which such
reactions are disseminated down the line to other internet users. Whether these reactions to defamatory statement
posted on the internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is
another matter that the Court will deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.
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(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or
aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of
the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is
at times sufficient to guide law enforcement agencies in enforcing the law. 51 The legislature is not required to define
every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character.
These forms of aiding or abetting lend themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The
idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within
a year, translating to about 31 million users. 55 Based on a recent survey, the Philippines ranks 6th in the top 10
most engaged countries for social networking. 56 Social networking sites build social relations among people who,
for example, share interests, activities, backgrounds, or real-life connections. 57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch. 58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook
can react to the posting, clicking any of several buttons of preferences on the programs screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post
online his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the
original "posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook
Friends.
Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital contentwhich could be in the form of text, pictures, links, short videos, or
other mediaon the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this
particular users posts, enabling them to read the same, and "Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another persons tweet without the need of copying and pasting
it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site. 60 Now, suppose Maria (a blogger) maintains a blog on
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WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Marias friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Marias original post is then multiplied by her friends and the latters friends, and down the line to
friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog,
finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nenas
"Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original tweet and posts this on her
Facebook account. Immediately, Pamelas Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses
agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel
in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends
or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or
abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding
or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice
as to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a case
involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendments guarantee of freedom of speech
for being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA
17
threatens violators with penalties including up to two years in prison for each act of violation. The severity of
criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful
words, ideas, and images. As a practical matter, this increased deterrent effect, coupled with the risk of
discriminatory enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those
implicated by certain civil regulations.
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The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That
danger provides further reason for insisting that the statute not be overly broad. The CDAs burden on protected
speech cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
persons reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading
the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts, comments, and other messages. 64Hence,
Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-forvagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice
Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections, 65 "we must view these
statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are used to mount facial challenges to penal statutes not involving free
speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights.
It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing. 66
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of
a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.
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Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it?
Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a
case is filed, how will the court ascertain whether or not one netizens comment aided and abetted a cybercrime
while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it
will destroy relationships and, under certain circumstances, will generate enmity and tension between social or
economic groups, races, or religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child pornography," does
this make Google and its users aiders and abettors in the commission of child pornography crimes? 68 Byars
highlights a feature in the American law on child pornography that the Cybercrimes law lacksthe exemption of a
provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any action
voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected. 69
When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details.
In this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information. 70 As the source of this information, is the user aiding the distribution
of this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of
internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners
point out, formal crimes such as libel are not punishable unless consummated. 71 In the absence of legislation
tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to
Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise
of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another partys computer system but the
security employed by the systems lawful owner could frustrate his effort. Another hacker may have gained access
to usernames and passwords of others but fail to use these because the system supervisor is alerted. 72 If Section 5
that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the
username and password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent. 73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other
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acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable certainty through adroit tracking of their works.
Absent concrete proof of the same, the innocent will of course be spared.
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed
by, through and with the use of information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided
for by the Revised Penal Code, as amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed using other means. In using the
technology in question, the offender often evades identification and is able to reach far more victims or cause
greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may
be prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of
the other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather
leave the determination of the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of
R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353.
Section 4(c)(4) merely establishes the computer system as another means of publication. 75 Charging the offender
under both laws would be a blatant violation of the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPAs scope so as
to include identical activities in cyberspace. As previously discussed, ACPAs definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.
20
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished
with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not
exceeding One million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished
with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph P50,000.00) but not exceeding Two
hundred fifty thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have
been connected with another crime. 77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be authorized
to collect or record by technical or electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.
Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.
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The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any
such crimes; and (3) that there are no other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders
or recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees. 81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to
the tremendous activities in cyberspace for public good. 82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities
to collect or record "traffic data, in real time, associated with specified communications." 83 And this is precisely what
Section 12 does. It empowers law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right, 84 transmitting viruses,85 lasciviously exhibiting
sexual organs or sexual activity for favor or consideration; 86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafs, from kindred
places that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can
neither be located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those
who peddle child pornography could use relays of computers to mislead law enforcement authorities regarding their
places of operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to
court-issued search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the peoples right to privacy. The concern is understandable.
Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create
zones of privacy wherein governmental powers may not intrude, and that there exists an independent constitutional
right of privacy. Such right to be left alone has been regarded as the beginning of all freedoms. 89
But that right is not unqualified. In Whalen v. Roe, 90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter rightthe right to informational privacythat those who oppose government
collection or recording of traffic data in real-time seek to protect.
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Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this
Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual
or legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her
expectation of privacy must be one society is prepared to accept as objectively reasonable. 92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general publics point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication through a service
provider, must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the
recipient ICT user. For example, an ICT user who writes a text message intended for another ICT user must furnish
his service provider with his cellphone number and the cellphone number of his recipient, accompanying the
message sent. It is this information that creates the traffic data. Transmitting communications is akin to putting a
letter in an envelope properly addressed, sealing it closed, and sending it through the postal service. Those who
post letters have no expectations that no one will read the information appearing outside the envelope.
Computer datamessages of all kindstravel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the
packet fits together with other packets. 93 The difference is that traffic data sent through the internet at times across
the ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to another where
their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service providers communications
system will put his voice message into packets and send them to the other persons cellphone where they are
refitted together and heard. The latters spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He
also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone
users in the 70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with one another
over cyberspace except through some service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this data takes them out of the private
sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize
as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a persons
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
23
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the
law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor
General suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But
the Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data.
It is akin to the use of a general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case
against an identified suspect? Can the data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of
their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But
this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it
is not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officers determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and
that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such
analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even impossible.
"All the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions 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."96 The Court must ensure that laws seeking to take advantage of these
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technologies be written with specificity and definiteness as to ensure respect for the rights that the Constitution
guarantees.
Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They
liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and
are to be considered private communications. But it is not clear that a service provider has an obligation to
indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those relating to content data
for at least six months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process
of preserving data will not unduly hamper the normal transmission or use of the same.
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a court warrant, shall issue
an order requiring any person or service provider to disclose or submit subscribers information, traffic data or
relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a
valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for
the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners objection is that
the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98
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Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed
procedure for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be made only after judicial intervention.
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.
Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning
of the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to complete the examination of the computer
data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date
of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure
the proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were
taken. Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13 and 15,
service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy
the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
providers storage systems and prevent overload. It would also ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or examination violates
the users right against deprivation of property without due process of law. But, as already stated, it is unclear that
the user has a demandable right to require the service provider to have that copy of the data saved indefinitely for
26
him in its storage system. If he wanted them preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service provider for a copy before it is deleted.
Section 19 empowers the Department of Justice to restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom
and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in ones papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states
that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction
on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize
content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such
content violates some law, for to do so would make him judge, jury, and executioner all rolled into one. 100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.
27
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829, 102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the
following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still
be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for
non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which
are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created, within thirty (30) days from
the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating
Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation
and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is
to enforce it.1avvphi1 The second test mandates adequate guidelines or limitations in the law to determine the
boundaries of the delegates authority and prevent the delegation from running riot. 103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best
practices, assurance and technologies that can be used to protect cyber environment and organization and users
assets.104 This definition serves as the parameters within which CICC should work in formulating the cybersecurity
plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat
such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and
international levels, and by providing arrangements for fast and reliable international cooperation." 105 This policy is
28
clearly adopted in the interest of law and order, which has been considered as sufficient standard. 106 Hence,
Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access
to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad
faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised
Penal Code are committed with the use of information and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of computer data under a courtissued warrant;
l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);
o. Section 26(a) that defines the CICCs Powers and Functions; and
29
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as
2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.
30
OPLE VS TORRES
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;
31
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.
32
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
33
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
34
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
35
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, arguendo, 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 SelfIncrimination 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
36
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 protected 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. 40Invasion 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
37
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.
38
The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed 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
39
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. 74These
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 AntiGraft 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 off-line. 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
40
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
41
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.
42
ZULUETA VS CA
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
respondents clinic without the latters 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
respondents secretary, forcibly opened the drawers and cabinet in her husbands clinic and took 157 documents
consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled
checks, diaries, Dr. Martins 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 plaintiffs Complaint or those further described in the Motion to Return and Suppress
and ordering Cecilia Zulueta and any person acting in her behalf to immediately return the properties to Dr. Martin
and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and attorneys 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 courts decision, petitioners only ground is that in Alfredo Martin v. Alfonso
Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-i to J-7 of respondents comment
in that case) were admissible in evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr., 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 respondents complaint.
43
Petitioners 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:
xxx
xxx
xxx
4. When respondent refiled Cecilias 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-I to J7. 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 Courts order, respondents 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 petitioners 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, petitioners 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 husbands 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. Martins 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 courts 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 is no less applicable simply
because it is the wife (who thinks herself aggrieved by her husbands 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
44
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.
45
KILUSANG MAYO UNO VS ERMITA

EN B ANC
KILUSANG MAYO UNO,
G.R. No. 167798
NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU),
JOSELITO V. USTAREZ,
EMILIA P. DAPULANG,
SALVADOR T. CARRANZA,
MARTIN T. CUSTODIO, JR. and
ROQUE M. TAN,
Petitioners,
- versus -
THE DIRECTOR-GENERAL,
NATIONAL ECONOMIC
DEVELOPMENT AUTHORITY,
and THE SECRETARY,
DEPARTMENT OF BUDGET and
MANAGEMENT,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
46
BAYAN MUNA Representatives

SATUR C. OCAMPO, TEODORO
A. CASIO, and JOEL G. VIRADOR,
GABRIELA WOMENS PARTY
Representative LIZA L. MAZA,
ANAKPAWIS Representatives
RAFAEL V. MARIANO
and CRISPIN B. BELTRAN,
Rep. FRANCIS G. ESCUDERO,
G.R. No. 167930

Present:
PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
Rep. EDUARDO C. ZIALCITA,
CARPIO,
Rep. LORENZO R. TAADA III,
AUSTRIA-MARTINEZ,
DR. CAROL PAGADUAN-ARAULLO
CORONA,
and RENATO M. REYES, JR.
CARPIO-MORALES,
of BAYAN, MARIE HILAO-ENRIQUEZ
CALLEJO, SR.,
of KARAPATAN, ANTONIO L. TINIO
AZCUNA,
of ACT, FERDINAND GAITE
TINGA,
of COURAGE, GIOVANNI A. TAPANG
CHICO-NAZARIO,
of AGHAM, WILFREDO MARBELLA

of KMP, LANA LINABAN of GABRIELA,
GARCIA, and
VELASCO, Jr., JJ.
AMADO GAT INCIONG,

RENATO CONSTANTINO, JR.,
DEAN PACIFICO H. AGABIN,
SHARON R. DUREMDES of the
NATIONAL COUNCIL OF CHURCHES
IN THE PHILIPPINES, and
BRO. EDMUNDO L. FERNANDEZ (FSC)
of the ASSOCIATION OF MAJOR
RELIGIOUS SUPERIORS OF THE
47
PHILIPPINES (AMRSP),
Petitioners,
- versus -
EDUARDO ERMITA, in his capacity as

Executive Secretary, ROMULO NERI,
in his capacity as Director-General
of the NATIONAL ECONOMIC and
DEVELOPMENT AUTHORITY (NEDA)
and the Administrator of the
Promulgated:
NATIONAL STATISTICS OFFICE (NSO),

Respondents.
April 19, 2006
x-----------------------------------------------------x
DECISION
CARPIO, J.:
This case involves two consolidated petitions for certiorari, prohibition, and mandamus under Rule 65 of the
Rules of Court, seeking the nullification of Executive Order No. 420 (EO 420) on the ground that it is
unconstitutional.
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:
REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND

CONTROLLED
CORPORATIONS
TO
STREAMLINE
AND
HARMONIZE
THEIR
IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE DIRECTOR-
48
GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY TO IMPLEMENT THE

SAME, AND FOR OTHER PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government have created
unnecessary and costly redundancies and higher costs to government, while making it
inconvenient for individuals to be holding several identification cards;
WHEREAS, there is urgent need to streamline and integrate the processes and issuance
of identification cards in government to reduce costs and to provide greater convenience for those
transacting business with government;
WHEREAS, a unified identification system will facilitate private businesses, enhance the
integrity and reliability of government-issued identification cards in private transactions, and prevent
violations of laws involving false names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of
the Philippines by virtue of the powers vested in me by law, do hereby direct the following:
Section 1. Adoption of a unified multi-purpose identification (ID) system for
government. All government agencies, including government-owned and controlled
corporations, are hereby directed to adopt a unified multi-purpose ID system to ensure the
attainment of the following objectives:
a.
To reduce costs and thereby lessen the financial burden on both the government
and the public brought about by the use of multiple ID cards and the maintenance
of redundant database containing the same or related information;
b.
To ensure greater convenience for those transacting business with the government
and those availing of government services;
c.
To facilitate private businesses and promote the wider use of the unified ID
card as provided under this executive order;
d.
e.
To enhance the integrity and reliability of government-issued ID cards; and

To facilitate access to and delivery of quality and effective government service.
Section 2. Coverage All government agencies and government-owned and controlled

corporations issuing ID cards to their members or constituents shall be covered by this executive
order.
Section 3. Data requirement for the unified ID system The data to be collected and
recorded by the participating agencies shall be limited to the following:
Name
Home Address
49
Sex
Picture
Signature
Date of Birth
Place of Birth
Marital Status
Names of Parents
Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)
Provided that a corresponding ID number issued by the participating agency and a common reference number shall
form part of the stored ID data and, together with at least the first five items listed above, including the print of the
right thumbmark, or any of the fingerprints as collected and stored, shall appear on the face or back of the ID card
for visual verification purposes.
Section 4. Authorizing the Director-General, National Economic and Development
Authority, to Harmonize All Government Identification Systems. The Director-General,
National Economic Development Authority, is hereby authorized to streamline and harmonize all
government ID systems.
Section 5. Functions and responsibilities of the Director-General, National Economic
and Development Authority. In addition to his organic functions and responsibilities, the
Director-General, National Economic and Development Authority, shall have the following functions
and responsibilities:
a.
Adopt within sixty (60) days from the effectivity of this executive order a unified
government ID system containing only such data and features, as indicated in
Section 3 above, to validly establish the identity of the card holder:
b.
Enter into agreements with local governments, through their respective

leagues of governors or mayors, the Commission on Elections (COMELEC), and
with other branches or instrumentalities of the government, for the purpose of
ensuring government-wide adoption of and support to this effort to streamline the
ID systems in government;
50
b.
Call on any other government agency or institution, or create subcommittees

or technical working groups, to provide such assistance as may be necessary or
required for the effective performance of its functions; and
d.
Promulgate such rules or regulations as may be necessary in pursuance of the

objectives of this executive order.
Section 6. Safeguards. The Director-General, National Economic and Development

Authority, and the pertinent agencies shall adopt such safeguard as may be necessary and
adequate to ensure that the right to privacy of an individual takes precedence over efficient public
service delivery. Such safeguards shall, as a minimum, include the following:
a.
The data to be recorded and stored, which shall be used only for purposes of
establishing the identity of a person, shall be limited to those specified in Section 3
of this executive order;
b.
In no case shall the collection or compilation of other data in violation of a persons

right to privacy shall be allowed or tolerated under this order;
c.
Stringent systems of access control to data in the identification system shall be

instituted;
d.
Data collected and stored for this purpose shall be kept and treated as strictly
confidential and a personal or written authorization of the Owner shall be required
for access and disclosure of data;
e.
The identification card to be issued shall be protected by advanced security

features and cryptographic technology; and
f.
A written request by the Owner of the identification card shall be required for any
correction or revision of relevant data, or under such conditions as the participating
agency issuing the identification card shall prescribe.
Section 7. Funding. Such funds as may be recommended by the Department of Budget

and Management shall be provided to carry out the objectives of this executive order.
Section 8. Repealing clause. All executive orders or issuances, or portions thereof,
which are inconsistent with this executive order, are hereby revoked, amended or modified
accordingly.
Section 9. Effectivity. This executive order shall take effect fifteen (15) days after its
publication in two (2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two Thousand
and Five.
51
Thus, under EO 420, the President directs all government agencies and government-owned and controlled
corporations to adopt a uniform data collection and format for their existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it constitutes usurpation of
legislative functions by the executive branch of the government. Furthermore, they allege that EO 420 infringes on
the citizens right to privacy.[1]
Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following grounds:
1.
EO 420 is contrary to law. It completely disregards and violates the decision of this
Honorable Court in Ople v. Torres et al., G.R. No. 127685, July 23, 1998. It also violates
RA 8282 otherwise known as the Social Security Act of 1997.
2.
The Executive has usurped the legislative power of Congress as she has no power to issue
EO 420. Furthermore, the implementation of the EO will use public funds not appropriated
by Congress for that purpose.
3.
4.
EO 420 violates the constitutional provisions on the right to privacy

(i)
It allows access to personal confidential data without the owners consent.
(ii)
EO 420 is vague and without adequate safeguards or penalties for any

violation of its provisions.
(iii)
There are no compelling reasons that will legitimize the necessity of EO

420.
Granting without conceding that the President may issue EO 420, the Executive Order was
issued without public hearing.
52
5.
EO 420 violates the Constitutional provision on equal protection of laws and results in the
discriminatory treatment of and penalizes those without ID. [2]
ISSUES
Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a usurpation of legislative
power by the President. Second, petitioners claim that EO 420 infringes on the citizens right to privacy.
Respondents question the legal standing of petitioners and the ripeness of the petitions. Even assuming
that petitioners are bereft of legal standing, the Court considers the issues raised under the circumstances of
paramount public concern or of transcendental significance to the people. The petitions also present a justiciable
controversy ripe for judicial determination because all government entities currently issuing identification cards are
mandated to implement EO 420, which petitioners claim is patently unconstitutional. Hence, the Court takes
cognizance of the petitions.
THE COURTS RULING
The petitions are without merit.
On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, Coverage. All government agencies and government-owned and controlled
corporations issuing ID cards to their members or constituents shall be covered by this executive order. EO 420
applies only to government entities that issue ID cards as part of their functions under existing laws. These
government entities have already been issuing ID cards even prior to EO 420. Examples of these government
entities are the GSIS,[3] SSS,[4] Philhealth,[5] Mayors Office,[6] LTO,[7]PRC,[8] and similar government entities.
53
Section 1 of EO 420 directs these government entities to adopt a unified multi-purpose ID system. Thus,
all government entities that issue IDs as part of their functions under existing laws are required to adopt a uniform
data collection and format for their IDs. Section 1 of EO 420 enumerates the purposes of the uniform data
collection and format, namely:
a.
To reduce costs and thereby lessen the financial burden on both the government and
the public brought about by the use of multiple ID cards and the maintenance of redundant
database containing the same or related information;
b.
To ensure greater convenience for those transacting business with the government
and those availing of government services;
c.
To facilitate private businesses and promote the wider use of the unified ID card as
provided under this executive order;
d.
To enhance the integrity and reliability of government-issued ID cards; and
e.
To facilitate access to and delivery of quality and effective government service.
In short, the purposes of the uniform ID data collection and ID format are to reduce costs, achieve efficiency and
reliability, insure compatibility, and provide convenience to the people served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID system to only 14
specific items, namely: (1) Name; (2) Home Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7)
Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11) Weight; (12) Two index fingers and two
thumbmarks; (13) Any prominent distinguishing features like moles or others; and (14) Tax Identification Number.
These limited and specific data are the usual data required for personal identification by government entities,
and even by the private sector. Any one who applies for or renews a drivers license provides to the LTO all these
14 specific data.
54
At present, government entities like LTO require considerably more data from applicants for identification
purposes. EO 420 will reduce the data required to be collected and recorded in the ID databases of the
government entities. Government entities cannot collect or record data, for identification purposes, other than the
14 specific data.
Various laws allow several government entities to collect and record data for their ID systems, either
expressly or impliedly by the nature of the functions of these government entities. Under their existing ID systems,
some government entities collect and record more data than what EO 420 allows. At present, the data collected
and recorded by government entities are disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court, [9] the IDs that the Court issues to
Justices, contain 15 specific data, namely:
all its employees, including the
(1) Name; (2) Picture; (3) Position; (4) Office Code Number; (5) ID
Number; (6) Height; (7) Weight; (8) Complexion; (9) Color of Hair;
(10) Blood Type; (11) Right Thumbmark; (12)
Tax Identification Number; (13) GSIS Policy Number; (14) Name and Address of Person to be Notified in Case of
Emergency; and (15) Signature. If we consider that the picture in the ID can generally also show the sex of the
employee, the Courts ID actually contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires only the first five items listed in
Section 3, plus the fingerprint, agency number and the common reference number, or only eight specific
data. Thus, at present, the Supreme Courts ID contains far more data than the proposed uniform ID for
government entities under EO 420. The nature of the data contained in the Supreme Court ID is also far more
financially sensitive, specifically the Tax Identification Number.
Making the data collection and recording of government entities unified, and making their ID formats
uniform, will admittedly achieve substantial benefits. These benefits are savings in terms of procurement of
equipment and supplies, compatibility in systems as to hardware and software, ease of verification and thus
increased reliability of data, and the user-friendliness of a single ID format for all government entities.
There is no dispute that government entities can individually limit the collection and recording of their data
to the 14 specific items in Section 3 of EO 420. There is also no dispute that these government entities can
individually adopt the ID format as specified in Section 3 of EO 420. Such an act is certainly within the authority of
the heads or governing boards of the government entities that are already authorized under existing laws to issue
IDs.
55
A unified ID system for all these government entities can be achieved in either of two ways. First, the
heads of these existing government entities can enter into a memorandum of agreement making their systems
uniform. If the government entities can individually adopt a format for their own ID pursuant to their regular
functions under existing laws, they can also adopt by mutual agreement a uniform ID format, especially if the
uniform format will result in substantial savings, greater efficiency, and optimum compatibility. This is purely an
administrative matter, and does not involve the exercise of legislative power.
Second, the President may by executive or administrative order direct the government entities under the
Executive department to adopt a uniform ID data collection and format. Section 17, Article VII of the 1987
Constitution provides that the President shall have control of all executive departments, bureaus and offices. The
same Section also mandates the President to ensure that the laws be faithfully executed.
Certainly, under this constitutional power of control the President can direct all government entities, in the
exercise of their functions under existing laws, to adopt a uniform ID data collection and ID format to achieve
savings, efficiency, reliability, compatibility, and convenience to the public. The Presidents constitutional power of
control is self-executing and does not need any implementing legislation.
Of course, the Presidents power of control is limited to the Executive branch of government and does not
extend to the Judiciary or to the independent constitutional commissions. Thus, EO 420 does not apply to the
Judiciary, or to the COMELEC which under existing laws is also authorized to issue voters ID cards. [10] This only
shows that EO 420 does not establish a national ID system because legislation is needed to establish a single ID
system that is compulsory for all branches of government.
The Constitution also mandates the President to ensure that the laws are faithfully executed. There are
several laws mandating government entities to reduce costs, increase efficiency, and in general, improve public
services.[11] The adoption of a uniform ID data collection and format under EO 420 is designed to reduce costs,
increase efficiency, and in general, improve public services. Thus, in issuing EO 420, the President is simply
performing the constitutional duty to ensure that the laws are faithfully executed.
Clearly, EO 420 is well within the constitutional power of the President to promulgate. The President has
not usurped legislative power in issuing EO 420. EO 420 is an exercise of Executive power the Presidents
56
constitutional power of control over the Executive department. EO 420 is also compliance by the President of the
constitutional duty to ensure that the laws are faithfully executed.
Legislative power is the authority to make laws and to alter or repeal them.
In issuing EO 420, the
President did not make, alter or repeal any law but merely implemented and executed existing laws. EO 420
reduces costs, as well as insures efficiency, reliability, compatibility and user-friendliness in the implementation of
current ID systems of government entities under existing laws. Thus, EO 420 is simply an executive issuance and
not an act of legislation.
The act of issuing ID cards and collecting the necessary personal data for imprinting on the ID card does
not require legislation. Private employers routinely issue ID cards to their employees. Private and public schools
also routinely issue ID cards to their students. Even private clubs and associations issue ID cards to their
members.
The purpose of all these ID cards is simply to insure the proper identification of a person as an
employee, student, or member of a club. These ID cards, although imposed as a condition for exercising a
privilege, are voluntary because a person is not compelled to be an employee, student or member of a club.
What require legislation are three aspects of a government maintained ID card system. First, when the
implementation of an ID card system requires a special appropriation because there is no existing appropriation for
such purpose. Second, when the ID card system is compulsory on all branches of government, including the
independent constitutional commissions, as well as compulsory on all citizens whether they have a use for the ID
card or not. Third, when the ID card system requires the collection and recording of personal data beyond what is
routinely or usually required for such purpose, such that the citizens right to privacy is infringed.
In the present case, EO 420 does not require any special appropriation because the existing ID card
systems of government entities covered by EO 420 have the proper appropriation or funding. EO 420 is not
compulsory on all branches of government and is not compulsory on all citizens. EO 420 requires a very narrow
and focused collection and recording of personal data while safeguarding the confidentiality of such data. In fact,
the data collected and recorded under EO 420 are far less than the data collected and recorded under the ID
systems existing prior to EO 420.
EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to have an
ID card. EO 420 applies only to government entities that under existing laws are already collecting data and
57
issuing ID cards as part of their governmental functions. Every government entity that presently issues an ID
card will still issue its own ID card under its own name. The only difference is that the ID card will contain only
the five data specified in Section 3 of EO 420, plus the fingerprint, the agency ID number, and the common
reference number which is needed for cross-verification to ensure integrity and reliability of identification.
This Court should not interfere how government entities under the Executive department should undertake
cost savings, achieve efficiency in operations, insure compatibility of equipment and systems, and provide userfriendly service to the public. The collection of ID data and issuance of ID cards are day-to-day functions of many
government entities under existing laws. Even the Supreme Court has its own ID system for employees of the
Court and all first and second level courts. The Court is even trying to unify its ID system with those of the
appellate courts, namely the Court of Appeals, Sandiganbayan and Court of Tax Appeals.
There is nothing legislative about unifying existing ID systems of all courts within the Judiciary. The same
is true for government entities under the Executive department. If government entities under the Executive
department decide to unify their existing ID data collection and ID card issuance systems to achieve savings,
efficiency, compatibility and convenience, such act does not involve the exercise of any legislative power. Thus, the
issuance of EO 420 does not constitute usurpation of legislative power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing ID cards in
the performance of their governmental functions. There have been no complaints from citizens that the ID cards of
these government entities violate their right to privacy. There have also been no complaints of abuse by these
government entities in the collection and recording of personal identification data.
In fact, petitioners in the present cases do not claim that the ID systems of government entities prior to EO
420 violate their right to privacy. Since petitioners do not make such claim, they even have less basis to complain
against the unified ID system under EO 420. The data collected and stored for the unified ID system under EO 420
will be limited to only 14 specific data, and the ID card itself will show only eight specific data. The data collection,
recording and ID card system under EO 420 will even require less data collected, stored and revealed than under
the disparate systems prior to EO 420.
58
Prior to EO 420, government entities had a free hand in determining the kind, nature and extent of data to be
collected and stored for their ID systems. Under EO 420, government entities can collect and record only the 14
specific data mentioned in Section 3 of EO 420. In addition, government entities can show in their ID cards only
eight of these specific data, seven less data than what the Supreme Courts ID shows.
Also, prior to EO 420, there was no executive issuance to government entities prescribing safeguards on the
collection, recording, and disclosure of personal identification data to protect the right to privacy. Now, under
Section 5 of EO 420, the following safeguards are instituted:
a.
The data to be recorded and stored, which shall be used only for purposes of
establishing the identity of a person, shall be limited to those specified in Section 3 of this
executive order;
b.
In no case shall the collection or compilation of other data in violation of a persons

right to privacy be allowed or tolerated under this order;
c.
Stringent systems of access control to data in the identification system shall be

instituted;
d.
Data collected and stored for this purpose shall be kept and treated as strictly
confidential and a personal or written authorization of the Owner shall be required for
access and disclosure of data;
e.
The identification card to be issued shall be protected by advanced security features

and cryptographic technology;
f.
A written request by the Owner of the identification card shall be required for any
correction or revision of relevant data, or under such conditions as the participating agency
issuing the identification card shall prescribe.
On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that can be
collected, recorded and shown compared to the existing ID systems of government entities. EO 420 further
59
provides strict safeguards to protect the confidentiality of the data collected, in contrast to the prior ID systems
which are bereft of strict administrative safeguards.
The right to privacy does not bar the adoption of reasonable ID systems by government entities. Some one
hundred countries have compulsory national ID systems, including democracies such as Spain, France, Germany,
Belgium, Greece, Luxembourg, and Portugal. Other countries which do not have national ID systems, like the
United States, Canada, Australia, New Zealand, Ireland, the Nordic Countries and Sweden, have sectoral cards for
health, social or other public services. [12] Even with EO 420, the Philippines will still fall under the countries that do
not have compulsory national ID systems but allow only sectoral cards for social security, health services, and other
specific purposes.
Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and LTO cannot perform
effectively and efficiently their mandated functions under existing laws. Without a reliable ID system, GSIS, SSS,
Philhealth and similar government entities stand to suffer substantial losses arising from false names and
identities. The integrity of the LTOs licensing system will suffer in the absence of a reliable ID system.
The dissenting opinion cites three American decisions on the right to privacy, namely, Griswold v.
Connecticut,[13] U.S. Justice Department v. Reporters Committee for Freedom of the Press,[14] and Whalen v. Roe.
[15]
The last two decisions actually support the validity of EO 420, while the first is inapplicable to the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state law that prohibited the use and
distribution of contraceptives because enforcement of the law would allow the police entry into the bedrooms of
married couples. Declared the U.S. Supreme Court: Would we allow the police to search the sacred precincts of
the marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of
privacy surrounding the marriage relationship. Because the facts and the issue involved in Griswold are materially
different from the present case, Griswold has no persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State could collect and store information on
individuals from public records nationwide but whether the State could withhold such information from the
press. The premise of the issue in U.S. Justice Department is that the State can collect and store in a
central database information on citizens gathered from public records across the country. In fact, the law
authorized the Department of Justice to collect and preserve fingerprints and other criminal identification records
nationwide. The law also authorized the Department of Justice to exchange such information with officials of
States, cities and other institutions. The Department of Justice treated such information as confidential. A CBS
60
news correspondent and the Reporters Committee demanded the criminal records of four members of a family
pursuant to the Freedom of Information Act. The U.S. Supreme Court ruled that the Freedom of Information Act
expressly exempts release of information that would constitute an unwarranted invasion of personal privacy, and
the information demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal data collected and recorded
under EO 420 are treated as strictly confidential under Section 6(d) of EO 420. These data are not only strictly
confidential but also personal matters. Section 7, Article III of the 1987 Constitution grants the right of the people
to information on matters of public concern. Personal matters are exempt or outside the coverage of the peoples
right to information on matters of public concern. The data treated as strictly confidential under EO 420 being
private matters and not matters of public concern, these data cannot be released to the public or the press. Thus,
the ruling in U.S. Justice Department does not collide with EO 420 but actually supports the validity EO
420.
Whalen v. Roe is the leading American case on the constitutional protection for control over
information. In Whalen, the U.S. Supreme Court upheld the validity of a New York law that required doctors to
furnish the government reports identifying patients who received prescription drugs that have a potential for
abuse. The government maintained a central computerized database containing the names and addresses of
the patients, as well as the identity of the prescribing doctors. The law was assailed because the database
allegedly infringed the right to privacy of individuals who want to keep their personal matters confidential. The U.S.
Supreme Court rejected the privacy claim, and declared:
Disclosures of private medical information to doctors, to hospital personnel, to insurance

companies, and to public health agencies are often an essential part of modern medical practice
even when the disclosure may reflect unfavorably on the character of the patient. Requiring such
disclosures to representatives of the State having responsibility for the health of the
community does not automatically amount to an impermissible invasion of privacy. (Emphasis
supplied)
Compared to the personal medical data required for disclosure to the New York State in Whalen, the 14
specific data required for disclosure to the Philippine government under EO 420 are far less sensitive and far less
personal. In fact, the 14 specific data required under EO 420 are routine data for ID systems, unlike the sensitive
and potentially embarrassing medical records of patients taking prescription drugs. Whalen, therefore, carries
persuasive force for upholding the constitutionality of EO 420 as non-violative of the right to privacy.
61
Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned Parenthood of Central
Missouri v. Danforth,[16] the U.S. Supreme Court upheld the validity of a law that required doctors performing
abortions to fill up forms, maintain records for seven years, and allow the inspection of such records by public
health officials. The U.S. Supreme Court ruled that recordkeeping and reporting requirements that are reasonably
directed to the preservation of maternal health and that properly respect a patients confidentiality and privacy are
permissible.
Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,[17] the U.S. Supreme Court upheld a
law that required doctors performing an abortion to file a report to the government that included the doctors name,
the womans age, the number of prior pregnancies and abortions that the woman had, the medical complications
from the abortion, the weight of the fetus, and the marital status of the woman. In case of state-funded institutions,
the law made such information publicly available. In Casey, the U.S. Supreme Court stated: The collection of
information with respect to actual patients is a vital element of medical research, and so it cannot be said that the
requirements serve no purpose other than to make abortion more difficult.
Compared to the disclosure requirements of personal data that the U.S. Supreme Court have upheld
in Whalen, Danforth and Casey as not violative of the right to privacy, the disclosure requirements under EO 420
are far benign and cannot therefore constitute violation of the right to privacy. EO 420 requires disclosure of 14
personal data that are routine for ID purposes, data that cannot possibly embarrass or humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners cannot show such
violation by a mere facial examination of EO 420 because EO 420 narrowly draws the data collection, recording
and exhibition while prescribing comprehensive safeguards. Ople v. Torres[18] is not authority to hold that EO 420
violates the right to privacy because in that case the assailed executive issuance, broadly drawn and devoid of
safeguards, was annulled solely on the ground that the subject matter required legislation. As then Associate
Justice, now Chief Justice Artemio V. Panganiban noted in his concurring opinion in Ople v. Torres, The voting is
decisive only on the need for appropriate legislation, and it is only on this ground that the petition is granted by this
Court.
EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant
to their regular functions under existing laws. EO 420 does not grant such government entities any power that they
do not already possess under existing laws. In contrast, the assailed executive issuance in Ople v. Torres sought
to establish a National Computerized Identification Reference System,[19] a national ID system that did not exist
62
prior to the assailed executive issuance. Obviously, a national ID card system requires legislation because it
creates a new national data collection and card issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system but makes the existing sectoral card
systems of government entities like GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable and userfriendly to the public.
Hence, EO 420 is a proper subject of executive issuance under the Presidents
constitutional power of control over government entities in the Executive department, as well as under the
Presidents constitutional duty to ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is declared VALID.
SO ORDERED.
63
SABIO VS GORDON
SUPREME COURT
Manila
EN BAN
G.R. No. 174340
October 17, 2006
IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS OF CAMILO L.
SABIO,petitioner,
J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator,
vs.
HONORABLE SENATOR RICHARD GORDON, in his capacity as Chairman, and the HONORABLE
MEMBERS OF THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES and THE
COMMITTEE ON PUBLIC SERVICES of the Senate, HONORABLE SENATOR JUAN PONCE-ENRILE, in his
official capacity as Member, HONORABLE MANUEL VILLAR, Senate President, SENATE SERGEANT-ATARMS, and the SENATE OF THE PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174318
October 17, 2006
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and CAMILO L. SABIO, Chairman,

NARCISO S. NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and NICASIO A. CONTI, Commissioners,
MANUEL ANDAL and JULIO JALANDONI, PCGG nominees to Philcomsat Holdings Corporation,petitioners,
vs.
RICHARD GORDON, in his capacity as Chairman, and MEMBERS OF THE COMMITTEE ON GOVERNMENT
CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS OF THE COMMITTEE ON PUBLIC SERVICES,
SENATOR JUAN PONCE-ENRILE, in his capacity as member of both said Committees, MANUEL VILLAR,
Senate President, THE SENATE SERGEANT-AT-ARMS, and SENATE OF THE PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174177
October 17, 2006
PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN
JOSE, DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA KRISTINA ALOBBA, and JOHNNY TAN, petitioners,
vs.
SENATE COMMITTEE ON GOVERNMENT CORPORATIONS and PUBLIC ENTERPRISES, its MEMBERS and
CHAIRMAN, the HONORABLE SENATOR RICHARD GORDON and SENATE COMMITTEE ON PUBLIC
SERVICES, its Members and Chairman, the HONORABLE SENATOR JOKER P. ARROYO, respondents.
DECISION
64
SANDOVAL-GUTIERREZ, J.:
Two decades ago, on February 28, 1986, former President Corazon C. Aquino installed her regime by issuing
Executive Order (E.O.) No. 1,1 creating the Presidential Commission on Good Government (PCGG). She entrusted
upon this Commission the herculean task of recovering the ill-gotten wealth accumulated by the deposed President
Ferdinand E. Marcos, his family, relatives, subordinates and close associates. 2 Section 4 (b) of E.O. No. 1 provides
that: "No member or staff of the Commission shall be required to testify or produce evidence in any judicial,
legislative or administrative proceeding concerning matters within its official cognizance." Apparently, the
purpose is to ensure PCGG's unhampered performance of its task. 3
Today, the constitutionality of Section 4(b) is being questioned on the ground that it tramples upon the Senate's
power to conduct legislative inquiry under Article VI, Section 21 of the 1987 Constitution, which reads:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing
in or affected by such inquiries shall be respected.
The facts are undisputed.
On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455
(Senate Res. No. 455),4 "directing an inquiry in aid of legislation on the anomalous losses incurred by the
Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation
(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their
operations by their respective Board of Directors."
The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the representation and entertainment expense of the PHC
skyrocketed to P4.3 million, as compared to the previous year's mere P106 thousand;
WHEREAS, some board members established wholly owned PHC subsidiary called Telecommunications
Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18 months, over P73 million had been
allegedly advanced to TCI without any accountability report given to PHC and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive committee of
Philcomsat has precipitately released P265 million and granted P125 million loan to a relative of an
executive committee member; to date there have been no payments given, subjecting the company to an
estimated interest income loss of P11.25 million in 2004;
WHEREAS, there is an urgent need to protect the interest of the Republic of the Philippines in the PHC,
PHILCOMSAT, and POTC from any anomalous transaction, and to conserve or salvage any remaining
value of the government's equity position in these corporations from any abuses of power done by their
respective board of directors;
WHEREFORE, be it resolved that the proper Senate Committee shall conduct an inquiry in aid of
legislation, on the anomalous losses incurred by the Philippine Overseas Telecommunications
Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their
respective board of directors.
Adopted.
(Sgd) MIRIAM DEFENSOR SANTIAGO
65
On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate and referred to
theCommittee on Accountability of Public Officers and Investigations and Committee on Public Services. However,
on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was transferred to the Committee on
Government Corporations and Public Enterprises.5
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman
Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the
public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and
Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No. 455. 6
On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment. 7 At the same time, he
invoked Section 4(b) of E.O. No. 1 earlier quoted.
On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,8 approved by Senate President Manuel
Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio Conti, Tereso
Javier and Narciso Nario to appear in the public hearing scheduled on August 23, 2006 and testify on what they
know relative to the matters specified in Senate Res. No. 455. Similar subpoenae were issued against the directors
and officers of Philcomsat Holdings Corporation, namely: Benito V. Araneta, Philip J. Brodett, Enrique L. Locsin,
Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao,
Alma Kristina Alloba and Johnny Tan.9
Again, Chairman Sabio refused to appear. In his letter to Senator Gordon dated August 18, 2006, he reiterated his
earlier position, invoking Section 4(b) of E.O. No. 1. On the other hand, the directors and officers of Philcomsat
Holdings Corporation relied on the position paper they previously filed, which raised issues on the propriety of
legislative inquiry.
Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of Senator Gordon, sent another
notice10 to Chairman Sabio requiring him to appear and testify on the same subject matter set on September 6,
2006. The notice was issued "under the same authority of the Subpoena Ad Testificandum previously served upon
(him) last 16 August 2006."
Once more, Chairman Sabio did not comply with the notice. He sent a letter 11 dated September 4, 2006 to Senator
Gordon reiterating his reason for declining to appear in the public hearing.
This prompted Senator Gordon to issue an Order dated September 7, 2006 requiring Chairman Sabio and
Commissioners Abcede, Conti, Javier and Nario to show cause why they should not be cited in contempt of the
Senate. On September 11, 2006, they submitted to the Senate their Compliance and Explanation, 12 which partly
reads:
Doubtless, there are laudable intentions of the subject inquiry in aid of legislation. But the rule of law
requires that even the best intentions must be carried out within the parameters of the Constitution and the
law. Verily, laudable purposes must be carried out by legal methods. (Brillantes, Jr., et al. v. Commission on
Elections, En Banc [G.R. No. 163193, June 15, 2004])
On this score, Section 4(b) of E.O. No. 1 should not be ignored as it explicitly provides:
No member or staff of the Commission shall be required to testify or produce evidence in
any judicial legislative or administrative proceeding concerning matters within its official
cognizance.
With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on the power of legislative inquiry,
and a recognition by the State of the need to provide protection to the PCGG in order to ensure the
unhampered performance of its duties under its charter. E.O. No. 1 is a law, Section 4(b) of which had not
been amended, repealed or revised in any way.
66
To say the least, it would require both Houses of Congress and Presidential fiat to amend or repeal the
provision in controversy. Until then, it stands to be respected as part of the legal system in this jurisdiction.
(As held in People v. Veneracion, G.R. Nos. 119987-88, October 12, 1995: Obedience to the rule of law
forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were
allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless. A government of laws, not of men excludes the
exercise of broad discretionary powers by those acting under its authority. Under this system, judges are
guided by the Rule of Law, and ought to 'protect and enforce it without fear or favor,' 4 [Act of Athens
(1955)] resist encroachments by governments, political parties, or even the interference of their own
personal beliefs.)
xxxxxx
Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19, 2006 pointed out that the anomalous
transactions referred to in the P.S. Resolution No. 455 are subject of pending cases before the regular
courts, the Sandiganbayan and the Supreme Court (Pending cases include: a. Samuel Divina v. Manuel
Nieto, Jr., et al., CA-G.R. No. 89102; b. Philippine Communications Satellite Corporation v. Manuel Nieto,
et al.; c. Philippine Communications Satellite Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC,
Branch 61, Makati City; d. Philippine Communications Satellite Corporation v. PHILCOMSAT Holdings
Corporation, et al., Civil Case No. 04-1049) for which reason they may not be able to testify thereon under
the principle of sub judice. The laudable objectives of the PCGG's functions, recognized in several cases
decided by the Supreme Court, of the PCGG will be put to naught if its recovery efforts will be unduly
impeded by a legislative investigation of cases that are already pending before the Sandiganbayan and trial
courts.
In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 [1991]) the Honorable Supreme Court
held:
"[T]he issues sought to be investigated by the respondent Committee is one over which
jurisdiction had been acquired by the Sandiganbayan. In short, the issue has been pre-empted by
that court. To allow the respondent Committee to conduct its own investigation of an issue already
before the Sandigabayan would not only pose the possibility of conflicting judgments between a
legislative committee and a judicial tribunal, but if the Committee's judgment were to be reached
before that of the Sandiganbayan, the possibility of its influence being made to bear on the ultimate
judgment of the Sandiganbayan can not be discounted.
xxxxxx
IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission decided not to attend the
Senate inquiry to testify and produce evidence thereat.
Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public
Enterprises and the Committee on Public Services issued an Order13 directing Major General Jose Balajadia (Ret.),
Senate Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for contempt of the
Senate. The Order bears the approval of Senate President Villar and the majority of the Committees'
members.
On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at
IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.
Hence, Chairman Sabio filed with this Court a petition for habeas corpus against the Senate Committee on
Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators
Richard Gordon and Joker P. Arroyo and Members. The case was docketed as G.R. No. 174340.
67
Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and the PCGG's nominees to Philcomsat
Holdings Corporation, Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari and prohibition
against the same respondents, and also against Senate President Manuel Villar, Senator Juan Ponce Enrile, the
Sergeant-at-Arms, and the entire Senate. The case was docketed as G.R. No. 174318.
Meanwhile, Philcomsat Holdings Corporation and its officers and directors, namely: Philip G. Brodett, Luis K. Lokin,
Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and Johnny Tan filed a petition
for certiorari and prohibition against the Senate Committees on Government Corporations and Public
Enterprises and Public Services, their Chairmen, Senators Gordon and Arroyo, and Members. The case was
docketed as G.R. No. 174177.
In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari and prohibition) Chairman Sabio,
Commissioners Abcede, Conti, Nario, and Javier; and the PCGG's nominees Andal and Jalandoni alleged: first,
respondent Senate Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable reason; second, the
inquiries conducted by respondent Senate Committees are not in aid of legislation; third, the inquiries were
conducted in the absence of duly published Senate Rules of Procedure Governing Inquiries in Aid of Legislation;
and fourth, respondent Senate Committees are not vested with the power of contempt.
In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and officers alleged: first,
respondent Senate Committees have no jurisdiction over the subject matter stated in Senate Res. No. 455;second,
the same inquiry is not in accordance with the Senate's Rules of Procedure Governing Inquiries in Aid of
Legislation; third, the subpoenae against the individual petitioners are void for having been issued without
authority; fourth, the conduct of legislative inquiry pursuant to Senate Res. No. 455 constitutes undue
encroachment by respondents into justiciable controversies over which several courts and tribunals have already
acquired jurisdiction; and fifth, the subpoenae violated petitioners' rights to privacy and against self-incrimination.
In their Consolidated Comment, the above-named respondents countered: first, the issues raised in the petitions
involve political questions over which this Court has no jurisdiction; second, Section 4(b) has been repealed by the
Constitution; third, respondent Senate Committees are vested with contempt power; fourth, Senate's Rules of
Procedure Governing Inquiries in Aid of Legislation have been duly published; fifth, respondents have not violated
any civil right of the individual petitioners, such as their (a) right to privacy; and (b) right against self-incrimination;
and sixth, the inquiry does not constitute undue encroachment into justiciable controversies.
During the oral arguments held on September 21, 2006, the parties were directed to submit simultaneously their
respective memoranda within a non-extendible period of fifteen (15) days from date. In the meantime, per
agreement of the parties, petitioner Chairman Sabio was allowed to go home. Thus, his petition for habeas
corpus has become moot. The parties also agreed that the service of the arrest warrants issued against all
petitioners and the proceedings before the respondent Senate Committees are suspended during the pendency of
the instant cases.14
Crucial to the resolution of the present petitions is the fundamental issue of whether Section 4(b) of E.O. No. 1 is
repealed by the 1987 Constitution. On this lone issue hinges the merit of the contention of Chairman Sabio and
his Commissioners that their refusal to appear before respondent Senate Committees is justified. With the
resolution of this issue, all the other issues raised by the parties have become inconsequential.
Perched on one arm of the scale of justice is Article VI, Section 21 of the 1987 Constitution granting respondent
Senate Committees the power of legislative inquiry. It reads:
The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.
On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of legislative inquiry by exempting all
PCGG members or staff from testifying in any judicial, legislative or administrative proceeding, thus:
68
No member or staff of the Commission shall be required to testify or produce evidence in any
judicial, legislative or administrative proceeding concerning matters within its official cognizance.
To determine whether there exists a clear and unequivocal repugnancy between the two quoted provisions that
warrants a declaration that Section 4(b) has been repealed by the 1987 Constitution, a brief consideration of the
Congress' power of inquiry is imperative.
The Congress' power of inquiry has been recognized in foreign jurisdictions long before it reached our shores
through McGrain v. Daugherty,15 cited in Arnault v. Nazareno.16 In those earlier days, American courts considered
the power of inquiry as inherent in the power to legislate. The 1864 case of Briggs v. MacKellar17explains the
breath and basis of the power, thus:
Where no constitutional limitation or restriction exists, it is competent for either of the two bodies composing
the legislature to do, in their separate capacity, whatever may be essential to enable them to legislate.It is
well-established principle of this parliamentary law, that either house may institute any
investigationhaving reference to its own organization, the conduct or qualification of its members, its
proceedings, rights, or privileges or any matter affecting the public interest upon which it may be
important that it should have exact information, and in respect to which it would be competent for it
to legislate. The right to pass laws, necessarily implies the right to obtain information upon any
matter which may become the subject of a law. It is essential to the full and intelligent exercise of
the legislative function.In American legislatures the investigation of public matters before
committees, preliminary to legislation, or with the view of advising the house appointing the
committee is, as a parliamentary usage, well established as it is in England, and the right of either
house to compel witnesses to appear and testify before its committee, and to punish for disobedience has
been frequently enforced.The right of inquiry, I think, extends to other matters, in respect to which it may
be necessary, or may be deemed advisable to apply for legislative aid.
Remarkably, in Arnault, this Court adhered to a similar theory. Citing McGrain, it recognized that the power of
inquiry is "an essential and appropriate auxiliary to the legislative function," thus:
Although there is no provision in the "Constitution expressly investing either House of Congress with power
to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly
and effectively, such power is so far incidental to the legislative function as to be implied. In other words,the
power of inquiry with process to enforce it is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or change; and
where the legislation body does not itself possess the requisite information which is not
infrequently true recourse must be had to others who possess it."
Dispelling any doubt as to the Philippine Congress' power of inquiry, provisions on such power made their maiden
appearance in Article VIII, Section 12 of the 1973 Constitution. 18 Then came the 1987 Constitution incorporating the
present Article VI, Section 12. What was therefore implicit under the 1935 Constitution, as influenced by American
jurisprudence, became explicit under the 1973 and 1987 Constitutions. 19
Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also of "any of its
committee." This is significant because it constitutes a direct conferral of investigatory power upon the committees
and it means that the mechanisms which the Houses can take in order to effectively perform its investigative
function are also available to the committees.20
It can be said that the Congress' power of inquiry has gained more solid existence and expansive construal. The
Court's high regard to such power is rendered more evident in Senate v. Ermita, 21 where it categorically ruled
that "the power of inquiry is broad enough to cover officials of the executive branch." Verily, the Court
reinforced the doctrine in Arnault that "the operation of government, being a legitimate subject for legislation,
is a proper subject for investigation" and that "the power of inquiry is co-extensive with the power to
legislate."
69
Considering these jurisprudential instructions, we find Section 4(b) directly repugnant with Article VI, Section 21.
Section 4(b) exempts the PCGG members and staff from the Congress' power of inquiry. This cannot be
countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress' power of
inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed
or possibly needed statutes. 22 It even extends "to government agencies created by Congress and officers
whose positions are within the power of Congress to regulate or even abolish."23 PCGG belongs to this class.
Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of any
constitutional basis.
Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating that: "Public office
is a public trust. Public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives."
The provision presupposes that since an incumbent of a public office is invested with certain powers and charged
with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people
and are to be exercised in behalf of the government or of all citizens who may need the intervention of the
officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words,
public officers are but the servants of the people, and not their rulers.24
Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability. It
places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies.
Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and nonaccountability. In Presidential Commission on Good Government v. Pea,25 Justice Florentino P. Feliciano
characterized as "obiter" the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O.
No. 1, a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined:
The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make
clear that the Court is not here interpreting, much less upholding as valid and constitutional, the
literal terms of Section 4 (a), (b) of Executive Order No.1. If Section 4 (a) were given its literal import as
immunizing the PCGG or any member thereof from civil liability "for anything done or omitted in the
discharge of the task contemplated by this Order," the constitutionality of Section 4 (a) would, in my
submission, be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the
irresponsibility and non-accountability of members and staff of the PCGG, a notion that is clearly repugnant
to both the 1973 and 1987 Constitution and a privileged status not claimed by any other official of the
Republic under the 1987 Constitution. x x x.
xxxxxx
It would seem constitutionally offensive to suppose that a member or staff member of the PCGG
could not be required to testify before the Sandiganbayan or that such members were exempted
from complying with orders of this Court.
Chavez v. Sandiganbayan26 reiterates the same view. Indeed, Section 4(b) has been frowned upon by this Court
even before the filing of the present petitions.
Corollarily, Section 4(b) also runs counter to the following constitutional provisions ensuring the people's access to
information:
Article II, Section 28
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest.
Article III, Section 7
70
The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of
the government, as well as provide the people sufficient information to enable them to exercise effectively their
constitutional rights. Armed with the right information, citizens can participate in public discussions leading to the
formulation of government policies and their effective implementation. In Valmonte v. Belmonte, Jr.27 the Court
explained that an informed citizenry is essential to the existence and proper functioning of any democracy, thus:
An essential element of these freedoms is to keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be responsive to the people's
will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have
access to information relating thereto can such bear fruit.
Consequently, the conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the
citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to
protect their interests. The extent of their participation will largely depend on the information gathered and made
known to them. In other words, the right to information really goes hand-in-hand with the constitutional policies of
full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in the government. 28 The cases ofTaada v.
Tuvera29 and Legaspi v. Civil Service Commission30 have recognized a citizen's interest and personality to enforce a
public duty and to bring an action to compel public officials and employees to perform that duty.
Section 4(b) limits or obstructs the power of Congress to secure from PCGG members and staff information and
other data in aid of its power to legislate. Again, this must not be countenanced. In Senate v. Ermita,31 this Court
stressed:
To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed to be in aid of legislation, is
presumed to be a matter of public concern. The citizens are thereby denied access to information which
they can use in formulating their own opinions on the matter before Congress opinions which they can
then communicate to their representatives and other government officials through the various legal means
allowed by their freedom of expression.
A statute may be declared unconstitutional because it is not within the legislative power to enact; or it creates or
establishes methods or forms that infringe constitutional principles; or its purpose or effect violates the
Constitution or its basic principles. 32 As shown in the above discussion, Section 4(b) is inconsistent withArticle
VI, Section 21 (Congress' power of inquiry), Article XI, Section 1 (principle of public accountability),Article II,
Section 28 (policy of full disclosure) and Article III, Section 7 (right to public information).
Significantly, Article XVIII, Section 3 of the Constitution provides:
All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive
issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or
revoked.
The clear import of this provision is that all existing laws, executive orders, proclamations, letters of instructions and
other executive issuances inconsistent or repugnant to the Constitution are repealed.
71
Jurisprudence is replete with decisions invalidating laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances inconsistent with the Constitution. In Pelaez v. Auditor General, 33 the
Court considered repealed Section 68 of the Revised Administrative Code of 1917 authorizing the Executive to
change the seat of the government of any subdivision of local governments, upon the approval of the 1935
Constitution. Section 68 was adjudged incompatible and inconsistent with the Constitutional grant of limited
executive supervision over local governments. In Islamic Da'wah Council of the Philippines, Inc., v. Office of the
Executive Secretary,34 the Court declared Executive Order No. 46, entitled "Authorizing the Office on Muslim Affairs
to Undertake Philippine Halal Certification," void for encroaching on the religious freedom of Muslims. InThe
Province of Batangas v. Romulo,35 the Court declared some provisions of the General Appropriations Acts of 1999,
2000 and 2001 unconstitutional for violating the Constitutional precept on local autonomy. And in Ople v.
Torres,36 the Court likewise declared unconstitutional Administrative Order No. 308, entitled "Adoption of a National
Computerized Identification Reference System," for being violative of the right to privacy protected by the
Constitution.
These Decisions, and many others, highlight that the Constitution is the highest law of the land. It is " the basic and
paramount law to which all other laws must conform and to which all persons, including the highest
officials of the land, must defer. No act shall be valid, however noble its intentions, if it conflicts with the
Constitution."37 Consequently, this Court has no recourse but to declare Section 4(b) of E.O. No. 1 repealed by
the 1987 Constitution.
Significantly, during the oral arguments on September 21, 2006, Chairman Sabio admitted that should this Court
rule that Section 4(b) is unconstitutional or that it does not apply to the Senate, he will answer the questions of the
Senators, thus:
CHIEF JUSTICE PANGANIBAN:
Okay. Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or that it does not apply to
the Senate, will you answer the questions of the Senators?
CHAIRMAN SABIO:
Your Honor, my father was a judge, died being a judge. I was here in the Supreme Court as Chief
of Staff of Justice Feria. I would definitely honor the Supreme Court and the rule of law.
CHIEF JUSTICE PANGANIBAN:
You will answer the questions of the Senators if we say that?
CHAIRMAN SABIO:
Yes, Your Honor. That is the law already as far as I am concerned.
With his admission, Chairman Sabio is not fully convinced that he and his Commissioners are shielded from
testifying before respondent Senate Committees by Section 4(b) of E.O. No. 1. In effect, his argument that the said
provision exempts him and his co-respondent Commissioners from testifying before respondent Senate
Committees concerning Senate Res. No. 455 utterly lacks merit.
Incidentally, an argument repeated by Chairman Sabio is that respondent Senate Committees have no power to
punish him and his Commissioners for contempt of the Senate.
The argument is misleading.
Article VI, Section 21 provides:
72
The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.
It must be stressed that the Order of Arrest for "contempt of Senate Committees and the Philippine Senate"
wasapproved by Senate President Villar and signed by fifteen (15) Senators. From this, it can be concluded
that the Order is under the authority, not only of the respondent Senate Committees, but of the entire Senate.
At any rate, Article VI, Section 21 grants the power of inquiry not only to the Senate and the House of
Representatives, but also to any of their respective committees. Clearly, there is a direct conferral of powerto
the committees. Father Bernas, in his Commentary on the 1987 Constitution, correctly pointed out its significance:
It should also be noted that the Constitution explicitly recognizes the power of investigation not just of
Congress but also of "any of its committees." This is significant because it constitutes a direct
conferral of investigatory power upon the committees and it means that the means which the
Houses can take in order to effectively perform its investigative function are also available to the
Committees.38
This is a reasonable conclusion. The conferral of the legislative power of inquiry upon any committee of Congress
must carry with it all powers necessary and proper for its effective discharge. Otherwise, Article VI, Section 21 will
be meaningless. The indispensability and usefulness of the power of contempt in a legislative inquiry is
underscored in a catena of cases, foreign and local.
In the 1821 case of Anderson v. Dunn,39 the function of the Houses of Congress with respect to the contempt power
was likened to that of a court, thus:
But the court in its reasoning goes beyond this, and though the grounds of the decision are not very
clearly stated, we take them to be: that there is in some cases a power in each House of Congress to
punish for contempt; that this power is analogous to that exercised by courts of justice, and that it
being the well established doctrine that when it appears that a prisoner is held under the order of a
court of general jurisdiction for a contempt of its authority, no other court will discharge the
prisoner or make further inquiry into the cause of his commitment. That this is the general ruleas
regards the relation of one court to another must be conceded.
In McGrain,40 the U.S. Supreme Court held: "Experience has shown that mere requests for such information
are often unavailing, and also that information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed." The Court, in Arnault v.
Nazareno,41sustained the Congress' power of contempt on the basis of this observation.
In Arnault v. Balagtas,42 the Court further explained that the contempt power of Congress is founded upon reason
and policy and that the power of inquiry will not be complete if for every contumacious act, Congress has to resort
to judicial interference, thus:
The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is
founded upon reason and policy. Said power must be considered implied or incidental to the exercise of
legislative power. How could a legislative body obtain the knowledge and information on which to
base intended legislation if it cannot require and compel the disclosure of such knowledge and
information if it is impotent to punish a defiance of its power and authority? When the framers of
the Constitution adopted the principle of separation of powers, making each branch supreme within
the realm of its respective authority, it must have intended each department's authority to be full
and complete, independently of the other's authority or power. And how could the authority and
power become complete if for every act of refusal, every act of defiance, every act of contumacy
against it, the legislative body must resort to the judicial department for the appropriate remedy,
because it is impotent by itself to punish or deal therewith, with the affronts committed against its
authority or dignity.43
73
In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete,44 the Court
characterized contempt power as a matter of self-preservation, thus:
The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of
the government vested with the legislative power, independently of the judicial branch, asserts its authority
and punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis x x x.
Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat Holdings Corporation and its directors and
officers, this Court holds that the respondent Senate Committees' inquiry does not violate their right to privacy and
right against self-incrimination.
One important limitation on the Congress' power of inquiry is that "the rights of persons appearing in or affected
by such inquiries shall be respected." This is just another way of saying that the power of inquiry must be
"subject to the limitations placed by the Constitution on government action." As held in Barenblatt v. United
States,45 "the Congress, in common with all the other branches of the Government, must exercise its
powers subject to the limitations placed by the Constitution on governmental action, more particularly in
the context of this case, the relevant limitations of the Bill of Rights."
First is the right to privacy.
Zones of privacy are recognized and protected in our laws. 46 Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and
"the right most valued by civilized men,"47 but also from our adherence to the Universal Declaration of Human
Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone
has the right to the protection of the law against such interference or attacks."48
Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create
zones of privacy. It highlights a person's "right to be let alone" or the "right to determine what, how much, to whom
and when information about himself shall be disclosed."49 Section 2 guarantees "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." Section 3 renders inviolable the "privacy of communication and
correspondence" and further cautions that "any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding."
In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable
government intrusion.50 Applying this determination to these cases, the important inquiries are: first, did the
directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?;
andsecond, did the government violate such expectation?
The answers are in the negative. Petitioners were invited in the Senate's public hearing to deliberate on Senate
Res. No. 455, particularly "on the anomalous losses incurred by the Philippine Overseas
Telecommunications
Corporation
(POTC),
Philippine
Communications
Satellite
Corporation
(PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the
operations by their respective board of directors." Obviously, the inquiry focus on petitioners' acts committed in
the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings
Corporation. Consequently, they have no reasonable expectation of privacy over matters involving their
offices in a corporation where the government has interest. Certainly, such matters are of public concern
and over which the people have the right to information.
This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest.
In Morfe v. Mutuc,51 the Court, in line with Whalen v. Roe,52 employed the rational basis relationship test when it
held that there was no infringement of the individual's right to privacy as the requirement to disclosure information is
for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of
74
honesty in public service, and promote morality in public administration. 53 In Valmonte v. Belmonte,54 the Court
remarked that as public figures, the Members of the former Batasang Pambansa enjoy a more limited right to
privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into
consideration, the Court ruled that the right of the people to access information on matters of public concern
prevails over the right to privacy of financial transactions.
Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions
of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate
to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from
Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and
formulate remedial measures and policy determination regarding PCGG's efficacy. There being no reasonable
expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455,
it follows that their right to privacy has not been violated by respondent Senate Committees.
Anent the right against self-incrimination, it must be emphasized that this right maybe invoked by the said directors
and officers of Philcomsat Holdings Corporation only when the incriminating question is being asked, since
they have no way of knowing in advance the nature or effect of the questions to be asked of them ."55 That
this right may possibly be violated or abused is no ground for denying respondent Senate Committees their power
of inquiry. The consolation is that when this power is abused, such issue may be presented before the courts. At
this juncture, what is important is that respondent Senate Committees have sufficient Rules to guide them when the
right against self-incrimination is invoked. Sec. 19 reads:
Sec. 19. Privilege Against Self-Incrimination
A witness can invoke his right against self-incrimination only when a question tends to elicit an answer that
will incriminate him is propounded to him. However, he may offer to answer any question in an executive
session.
No person can refuse to testify or be placed under oath or affirmation or answer questions before an
incriminatory question is asked. His invocation of such right does not by itself excuse him from his duty to
give testimony.
In such a case, the Committee, by a majority vote of the members present there being a quorum, shall
determine whether the right has been properly invoked. If the Committee decides otherwise, it shall resume
its investigation and the question or questions previously refused to be answered shall be repeated to the
witness. If the latter continues to refuse to answer the question, the Committee may punish him for
contempt for contumacious conduct.
The same directors and officers contend that the Senate is barred from inquiring into the same issues being
litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution of criminal or
administrative action should not stop or abate any inquiry to carry out a legislative purpose.
Let it be stressed at this point that so long as the constitutional rights of witnesses, like Chairman Sabio and his
Commissioners, will be respected by respondent Senate Committees, it their duty to cooperate with them in their
efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to
respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to
matters within the realm of proper investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and
Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as
well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate
Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455.
75
WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is DISMISSED, for being moot. The petitions in
G.R Nos. 174318 and 174177 are likewise DISMISSED.
Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. Respondent Senate Committees'
power of inquiry relative to Senate Resolution 455 is upheld. PCGG Chairman Camilo L. Sabio and Commissioners
Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's
nominees to Philcomsat Holdings Corporation, as well as its directors and officers, petitioners in G.R. No. 174177,
are ordered to comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing
them to appear and testify in public hearings relative to Senate Resolution No. 455.
SO ORDERED.
76

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CONTENTS

DISINI VS SECRETARY OF JUSTCE........................................................................................................................ 2

DISINI VS SECRETARY OF JUSTCE

February 11, 2014

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

g. Section 4(c)(3) on Unsolicited Commercial Communications;

Section 4(a)(6) of the Cybercrime Law

(c) Content-related Offenses:

G.R. No. 127685 July 23, 1998

KILUSANG MAYO UNO VS ERMITA

KILUSANG MAYO UNO,

G.R. No. 167798

BAYAN MUNA Representatives

G.R. No. 167930

Rep. EDUARDO C. ZIALCITA,

Rep. LORENZO R. TAADA III,

DR. CAROL PAGADUAN-ARAULLO

and RENATO M. REYES, JR.

of BAYAN, MARIE HILAO-ENRIQUEZ

of KARAPATAN, ANTONIO L. TINIO

of ACT, FERDINAND GAITE

of COURAGE, GIOVANNI A. TAPANG

of AGHAM, WILFREDO MARBELLA

AMADO GAT INCIONG,

EDUARDO ERMITA, in his capacity as

NATIONAL STATISTICS OFFICE (NSO),

April 19, 2006

REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND

GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY TO IMPLEMENT THE

To enhance the integrity and reliability of government-issued ID cards; and

Section 2. Coverage All government agencies and government-owned and controlled

Enter into agreements with local governments, through their respective

Call on any other government agency or institution, or create subcommittees

Promulgate such rules or regulations as may be necessary in pursuance of the

Section 6. Safeguards. The Director-General, National Economic and Development

In no case shall the collection or compilation of other data in violation of a persons

Stringent systems of access control to data in the identification system shall be

The identification card to be issued shall be protected by advanced security

Section 7. Funding. Such funds as may be recommended by the Department of Budget

EO 420 violates the constitutional provisions on the right to privacy

It allows access to personal confidential data without the owners consent.

EO 420 is vague and without adequate safeguards or penalties for any

There are no compelling reasons that will legitimize the necessity of EO

THE COURTS RULING

The petitions are without merit.

On the Alleged Usurpation of Legislative Power

To enhance the integrity and reliability of government-issued ID cards; and

To facilitate access to and delivery of quality and effective government service.

all its employees, including the

(10) Blood Type; (11) Right Thumbmark; (12)

In issuing EO 420, the

On the Alleged Infringement of the Right to Privacy

In no case shall the collection or compilation of other data in violation of a persons

Stringent systems of access control to data in the identification system shall be

The identification card to be issued shall be protected by advanced security features

Disclosures of private medical information to doctors, to hospital personnel, to insurance

Hence, EO 420 is a proper subject of executive issuance under the Presidents

October 17, 2006

October 17, 2006

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and CAMILO L. SABIO, Chairman,

October 17, 2006

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