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."   Petitioner Ople prays that
1

we invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized

Identification Reference System" on two important constitutional grounds, viz: one, it is a
usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our
citizenry's protected zone of privacy. We grant the petition for the rights sought to be
vindicated by the petitioner need stronger barriers against further erosion.

A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as
follows:

ADOPTION OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents

with the facility to conveniently transact business with basic service and social
security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently

identify persons seeking basic services on social security and reduce, if not
totally eradicate fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic

services and social security providing agencies and other government
intrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:

Sec. 1. Establishment of a National Compoterized Identification Reference

System. A decentralized Identification Reference System among the key basic
services and social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating
Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government

Secretary, Department of Health

Administrator, Government Service Insurance System,

Administrator, Social Security System,

Administrator, National Statistics Office

Managing Director, National Computer Center.

Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated

as secretariat to the IACC and as such shall provide administrative and
technical support to the IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN)

generated by the NSO shall serve as the common reference number to
establish a linkage among concerned agencies. The IACC Secretariat shall
coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in computer
application designs of their respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office of the

Press Secretary, in coordination with the National Statistics Office, the GSIS
and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social
Security Identification Reference.

Sec. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.

Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit
regular reports to the Office of the President through the IACC, on the status of
implementation of this undertaking.

Sec. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.
 (SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997
and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against
respondents, then Executive Secretary Ruben Torres and the heads of the government
agencies, who as members of the Inter-Agency Coordinating Committee, are charged with
the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.

Petitioner contends:

A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION

REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF
A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE

IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION
OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION.  2

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD

WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING
ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE

IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY.  3

We now resolve.

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.   As taxpayer and member of the Government Service Insurance System (GSIS),
4

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.   Respondent
6

Executive Secretary Torres has publicly announced that representatives from the GSIS and
the SSS have completed the guidelines for the national identification system.   All signals
7

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."   The
8

Constitution, as the will of the people in their original, sovereign and unlimited capacity, has
vested this power in the Congress of the Philippines.   The grant of legislative power to
9

Congress is broad, general and comprehensive.   The legislative body possesses plenary
10

power for all purposes of civil government.   Any power, deemed to be legislative by usage
11

and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere.   In fine, except as limited by the Constitution, either expressly or impliedly,
12

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.   The executive power is vested in the Presidents.   It is generally defined as the power
14 15

to enforce and administer the laws.   It is the power of carrying the laws into practical
16

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.   He has control over the executive department, bureaus and
18

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.  Corollary to the power of control, the President also has the duty of supervising the
19

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.   It enables the President to fix a uniform
21

standard of administrative efficiency and check the official conduct of his agents.   To this
22

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.   We reject the argument that A.O. No. 308 implements the
24

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."   and "embodies changes in administrative structure and
25

procedures designed to serve the

people."   The Code is divided into seven (7) Books: Book I deals with Sovereignty
26

and General Administration, Book II with the Distribution of Powers of the three
branches of Government, Book III on the Office of the President, Book IV on the
Executive Branch, Book V on Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative Procedure. These Books
contain provisions on the organization, powers and general administration of the
executive, legislative and judicial branches of government, the organization and
administration of departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and other
constitutional bodies, the rules on the national government budget, as well as
guideline for the exercise by administrative agencies of quasi-legislative and quasi-
judicial powers. The Code covers both the internal administration of
government, i.e, internal organization, personnel and recruitment, supervision and
discipline, and the effects of the functions performed by administrative officials on
private individuals or parties outside government.  27

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative
Code of 1987. It establishes for the first time a National Computerized Identification
Reference System. Such a System requires a delicate adjustment of various contending state
policies — the primacy of national security, the extent of privacy interest against dossier-
gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said
administrative order redefines the parameters of some basic rights of our citizenry vis-a-
vis the State as well as the line that separates the administrative power of the President to
make rules and the legislative power of Congress, it ought to be evident that it deals with a
subject that should be covered by law.

Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers
no right, imposes no duty, affords no proctection, and creates no office. Under A.O. No. 308,
a citizen cannot transact business with government agencies delivering basic services to the
people without the contemplated identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with government. It is thus clear as daylight
that without the ID, a citizen will have difficulty exercising his rights and enjoying his
privileges. Given this reality, the contention that A.O. No. 308 gives no right and imposes no
duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of administrative
legislation and consequently erodes the plenary power of Congress to make laws. This is
contrary to the established approach defining the traditional limits of administrative
legislation. As well stated by Fisher: ". . . Many regulations however, bear directly on the
public. It is here that administrative legislation must he restricted in its scope and
application. Regulations are not supposed to be a substitute for the general policy-making
that Congress enacts in the form of a public law. Although administrative regulations are
entitled to respect, the authority to prescribe rules and regulations is not an independent
source of power to make laws."  28

III

Assuming, 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."   In the 1965 case of Griswold v.
29

Connecticut,   the United States Supreme Court gave more substance to the right of privacy
30

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,   viz:31

Specific guarantees in the Bill of Rights have penumbras formed by

emanations from these guarantees that help give them life and substance . . .
various guarantees create zones of privacy. The right of association contained
in the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers "in any house"
in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the ''right of the people to be
secure in their persons, houses and effects, against unreasonable searches
and seizures." The Fifth Amendment in its Self-Incrimination Clause enables
the citizen to create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: "The enumeration
in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."

In the 1968 case of Morfe v. Mutuc,   we adopted the Griswold ruling that there is a
32

constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique
Fernando, we held:
 x x x           x x x          x x x

The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offence on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully
it stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector — protection, in other
words, of the dignity and integrity of the individual — has become increasingly
important as modern society has developed. All the forces of a technological
age — industrialization, urbanization, and organization — operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and
enshrined in several provisions of our Constitution.   It is expressly recognized in section 3
33

(1) of the Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.

Other facets of the right to privacy are protectad in various provisions of the Bill of
Rights, viz: 
34

Sec. 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the
laws.

Sec. 2. The right of the people to be secure in their persons, houses papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

x x x           x x x          x x x
 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.

x x x           x x x          x x x

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.   It also holds a public officer or employee
35

or any private individual liable for damages for any violation of the rights and liberties of
another person,   and recognizes the privacy of letters and other private
36

communications.   The Revised Penal Code makes a crime the violation of secrets by an
37

officer,  the revelation of trade and industrial secrets,   and trespass to dwelling.   Invasion
38 39 40

of privacy is an offense in special laws like the Anti-Wiretapping Law,   the Secrecy of Bank
41

Deposits Act   and the Intellectual Property Code.   The Rules of Court on privileged
42 43

communication likewise recognize the privacy of certain information.  44

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental
right guaranteed by the Constitution, hence, it is the burden of government to show that A.O.
No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No.
308 is predicated on two considerations: (1) the need to provides our citizens and foreigners
with the facility to conveniently transact business with basic service and social security
providers and other government instrumentalities and (2) the need to reduce, if not totally
eradicate, fraudulent transactions and misrepresentations by persons seeking basic
services. It is debatable whether these interests are compelling enough to warrant the
issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the
overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in
clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference
Number (PRN) as a "common reference number to establish a linkage among concerned
agencies" through the use of "Biometrics Technology" and "computer application designs."

Biometry or biometrics is "the science of the applicatin of statistical methods to biological

facts; a mathematical analysis of biological data."   The term "biometrics" has evolved into a
45

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.   A 46

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.   Most biometric
47

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   and becomes a means of
49

identifying an individual using a service. This technology requires one's fingertip to be

scanned every time service or access is provided.   Another method is the retinal scan.
50

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.   Another
51

biometric method is known as the "artificial nose." This device chemically analyzes the
unique combination of substances excreted from the skin of people.   The latest on the list of
52

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."   This is an admission that the PRN will not be used solely for identification but
54

the generation of other data with remote relation to the avowed purposes of A.O. No. 308.
Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to
store and retrieve information for a purpose other than the identification of the individual
through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be 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.   The data may be gathered for gainful and useful government purposes;
55

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.   Even that hospitable assumption
57

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.   Well to note, the computer linkage gives other government agencies
58
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.   The lack of proper safeguards in this regard of A.O. No. 308 may interfere with
60

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.   The possibilities of abuse and misuse of the PRN, biometrics and computer
61

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.   They
62

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.   The computer is capable of producing a comprehensive dossier
64

on individuals out of information given at different times and for varied purposes.   It can
65

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.  Once extracted, the information is
66

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.   The
67

factual circumstances of the case determines the reasonableness of the

expectation.   However, other factors, such as customs, physical surroundings and practices
68

of a particular activity, may serve to create or diminish this expectation.   The use of
69

biometrics and computer technology in A.O. No. 308 does not assure the individual of a
reasonable expectation of privacy.   As technology advances, the level of reasonably
70

expected privacy decreases.   The measure of protection granted by the reasonable

71

expectation diminishes as relevant technology becomes more widely accepted.   The72

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.   Republic Act. No. 1161
73

prohibits public disclosure of SSS employment records and reports.   These laws, however,
74

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.   He stressed that the purposes of A.O. No. 308
75

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,   we upheld the constitutionality of
77

R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We
declared that the law, in compelling a public officer to make an annual report disclosing his
assets and liabilities, his sources of income and expenses, did not infringe on the
individual's right to privacy. The law was enacted to promote morality in public
administration by curtailing and minimizing the opportunities for official corruption and
maintaining a standard of honesty in the public service.  78

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

The case of Whalen v. Roe   cited by the Solicitor General is also off-line. In Whalen, the
79

United States Supreme Court was presented with the question of whether the State of New
York could keep a centralized computer record of the names and addresses of all persons
who obtained certain drugs pursuant to a doctor's prescription. The New York State
Controlled Substance Act of 1972 required physicians to identify parties obtaining
prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but
with a potential for abuse, so that the names and addresses of the patients can be recorded
in a centralized computer file of the State Department of Health. The plaintiffs, who were
patients and doctors, claimed that some people might decline necessary medication because
of their fear that the computerized data may be readily available and open to public
disclosure; and that once disclosed, it may stigmatize them as drug addicts.   The plaintiffs
80

alleged that the statute invaded a constitutionally protected zone of privacy, i.e., the
individual interest in avoiding disclosure of personal matters, and the interest in
independence in making certain kinds of important decisions. The U.S. Supreme Court held
that while an individual's interest in avoiding disclosuer of personal matter is an aspect of the
right to privacy, the statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the enforcement of laws
designed to minimize the misuse of dangerous drugs. The patient-identification requirement
was a product of an orderly and rational legislative decision made upon recommmendation
by a specially appointed commission which held extensive hearings on the matter. Moreover,
the statute was narrowly drawn and contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and requirements for the gathering, storage
and retrieval of the informatin. It ebumerated who were authorized to access the data. It also
prohibited public disclosure of the data by imposing penalties for its violation. In view of
these safeguards, the infringement of the patients' right to privacy was justified by a valid
exercise of police power. As we discussed above, A.O. No. 308 lacks these vital safeguards.

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

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions
into individual privacy. The right is not intended to stifle scientific and technological
advancements that enhance public service and the common good. It merely requires that the
law be narrowly focused 85 and a compelling interest justify such intrusions. 86 Intrusions into the
right must be accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades individual privacy will
be subjected by this Court to strict scrutiny. The reason for this stance was laid down in Morfe v.
Mutuc, to wit:

The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic disctinctions between absolute and
limited government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can
control. Protection of this private sector — protection, in other words, of the
dignity and integrity of the individual — has become increasingly important as
modern society has developed. All the forces of a technological age —
industrialization, urbanization, and organization — operate to narrow the area
of privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference between
a democratic and a totalitarian society. 87
 IV

The right to privacy is one of the most threatened rights of man living in a mass society. The
threats emanate from various sources — governments, journalists, employers, social
scientists, etc. 88 In th case at bar, the threat comes from the executive branch of government
which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving
information about themselves on the pretext that it will facilitate delivery of basic services. Given
the record-keeping power of the computer, only the indifferent fail to perceive the danger that A.O.
No. 308 gives the government the power to compile a devastating dossier against unsuspecting
citizens. It is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result
could be that everyone will live burdened by an unerasable record of his past and his limitations.
In a way, the threat is that because of its record-keeping, the society will have lost its benign
capacity to forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in
labelling the right to privacy as a fundamental right. We close with the statement that the right to
privacy was not engraved in our Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" declared null and
void for being unconstitutional.

SO ORDERED.