EN BANC
[G.R. No. 81567. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA.
MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V. SESE,
petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA,
BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER
AGUIRRE, respondents.
[G.R. Nos. 84581-82. July 9, 1990.]
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs.
GEN. RENATO DE VILLA and GEN. RAMON MONTANO,
respondents.
[G.R. Nos. 84583-84. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY.
DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T.
ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V.
RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT.
COL. REX D. PIAD, T/ SGT. CONRADO DE TORRES, S/SGT. ARNOLD
DURIAN, and Commanding Officer, PC-INP Detention Center,
Camp Crame, Quezon City, respondents.
[G.R. No. 83162. July 9, 1990.]
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF
VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA,
petitioner, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL., HERCULES
CATALUNA, COL. NESTOR MARIANO, respondents.
[G.R. No. 85727. July 9, 1990.]
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF:
DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN. ALFREDO S.
LIM, COL. RICARDO REYES, respondents.
[G.R. No. 86332. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
NARCISO B. NAZARENO, ALFREDO NAZARENO, petitioner, vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE
STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA,
P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT.
MAURO AROJADO, respondents.
Efren H. Mercado for petitioners in G.R. No. 81567.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
Ramon S. Esguerra Barbara Anne C. Migallos and Agripino G.
Morga for petitioners in G.R. Nos. 84583-84.
Efren H. Mercado for petitioner in G.R. No. 83162.
Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Associates for
petitioner in G.R. No. 85727.
Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
1
The Solicitor General for the respondents.
DECISION
PER CURIAM p:
These are eight (8) petitions for habeas corpus filed before the
Court, which have been consolidated because of the similarity of
issues raised, praying for the issuance of the writ of habeas
corpus, ordering the respective respondents to produce the
bodies of the persons named therein and to explain why they
should not be set at liberty without further delay.
In their respective Returns, the respondents uniformly assert that
the privilege of the writ of habeas corpus is not available to the
petitioners as they have been legally arrested and are detained by
virtue of valid informations filed in court against them. LexLib
The petitioners counter that their detention is unlawful as their
arrests were made without warrant and, that no preliminary
investigation was first conducted, so that the informations filed
against them are null and void.
The Court has carefully reviewed the contentions of the parties in
their respective pleadings, and it finds that the persons detained
have not been illegally arrested nor arbitrarily deprived of their
constitutional right to liberty, and that the circumstances
attending these cases do not warrant their release on habeas
corpus.
The arrest of a person without a warrant of arrest or previous
complaint is recognized in law. The occasions or instances when
such an arrest may be effected are clearly spelled out in Section 5,
Rule 113 of the Rules of Court, as amended, which provides:
"Sec. 5. Arrest without warrant; when lawful. — A peace officer
or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit en
offense;
(b) When an offense has in fact just been committed, and
he has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving
final judgment or temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7."
An arrest without a warrant of arrest, under Section 5 paragraphs
(a) and (b) of Rule 113 of the Rules of Court, as amended, is
justified when the person arrested is caught in flagranti delicto,
viz., in the act of committing an offense; or when an offense has
just been committed and the person making the arrest has
personal knowledge of the facts indicating that the person
arrested has committed it. The rationale behind lawful arrests,
without warrant, was stated by this Court in the case of People vs.
Kagui Malasugui 1 thus:
"To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the mercy
of the shrewdest, the most expert, and the most depraved of
criminals, facilitating their escape in many instances."
The record of the instant cases would show that the persons in
whose behalf these petitions for habeas corpus have been filed,
had freshly committed or were actually committing an offense,
when apprehended, so that their arrests without a warrant were
clearly justified, and that they are, further, detained by virtue of
valid informations filed against them in court.
A brief narration of the facts and events surrounding each of the
eight (8) petitions is in order.
I subversion, conspiracy or proposal to commit such crimes, and
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1
February 1988, the Regional Intelligence Operations Unit of the
Capital Command (RIOU-CAPCOM) received confidential
information about a member of the NPA Sparrow Unit (liquidation
squad) being treated for a gunshot wound at the St. Agnes
Hospital in Roosevelt Avenue, Quezon City. Upon verification, it
was found that the wounded person, who was listed in the
hospital records as Ronnie Javelon, is actually Rolando Dural, a
member of the NPA liquidation squad, responsible for the killing
of two (2) CAPCOM soldiers the day before, or on 31 January
1988, in Macanining Street, Bagong Barrio, Caloocan City. In view
of this verification, Rolando Dural was transferred to the Regional
Medical Services of the CAPCOM, for security reasons. While
confined thereat, or on 4 February 1988, Rolando Dural was
positively identified by eyewitnesses as the gunman who went on
top of the hood of the CAPCOM mobile patrol car, and fired at the
two (2) CAPCOM soldiers seated inside the car identified as T/Sgt.
Carlos Pabon and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural
was referred to the Caloocan City Fiscal who conducted an inquest
and thereafter filed with the Regional Trial Court of Caloocan City
an information charging Rolando Dural alias Ronnie Javelon with
the crime of "Double Murder with Assault Upon Agents of Persons
in Authority." The case was docketed therein as Criminal Case No.
C-30112 and no bail was recommended. On 15 February 1988, the
information was amended to include, as defendant, Bernardo
Itucal, Jr. who, at the filing of the original information, was still
unidentified. cdphil
Meanwhile, on 6 February 1988, a petition for habeas corpus was
filed with this Court on behalf of Roberto Umil, Rolando Dural, and
Renato Villanueva. The Court issued the writ of habeas corpus on
9 February 1988 and the respondents filed a Return of the Writ on
2
12 February 1988. Thereafter, the parties were heard on 15
February 1988.
On 26 February 1988, however, Roberto Umil and Renato
Villanueva posted bail before the Regional Trial Court of Pasay City
where charges for violation of the Anti-Subversion Act had been
filed against them, and they were accordingly released. The
petition for habeas corpus, insofar as Umil and Villanueva are
concerned, is now moot and academic and is accordingly
dismissed, since the writ of habeas corpus does not lie in favor of
an accused in a criminal case who has been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested
while in the act of shooting the two (2) CAPCOM soldiers
aforementioned. Nor was he arrested just after the commission of
the said offense for his arrest came a day after the said shooting
incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the
New Peoples Army (NPA), an outlawed subversive organization.
Subversion being a continuing offense, the arrest of Rolando Dural
without warrant is justified as it can be said that he was
committing an offense when arrested. The crimes of rebellion,
crimes or offenses committed in furtherance thereof or in
connection therewith constitute direct assaults against the State
and are in the nature of continuing crimes. As stated by the Court
in an earlier case:
"From the facts as above-narrated, the claim of the petitioners
that they were initially arrested illegally is, therefore, without
basis in law and in fact. The crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit such crimes, and
other crimes and offenses committed in the furtherance, on the
occasion thereof, or incident thereto, or in connection therewith
under Presidential Proclamation No. 2045, are all in the nature of
continuing offenses which set them apart from the common
offenses, aside from their essentially involving a massive
conspiracy of nationwide magnitude. Clearly then, the arrest of
the herein detainees was well within the bounds of the law and
existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether
as its fighting armed elements, or for committing non-violent acts
but in furtherance of the rebellion, is more an act of capturing
them in the course of an armed conflict, to quell the rebellion,
than for the purpose of immediately prosecuting them in court for
a statutory offense. The arrest, therefore, need not follow the
usual procedure in the prosecution of offenses which requires the
determination by a judge of the existence of probable cause
before the issuance of a judicial warrant of arrest and the granting
of bail if the offense is bailable. Obviously, the absence of a
judicial warrant is no legal impediment to arresting or capturing
persons committing overt acts of violence against government
forces, or any other milder acts but equally in pursuance of the
rebellious movement. The arrest or capture is thus impelled by
the exigencies of the situation that involves the very survival of
society and its government and duly constituted authorities. If
killing and other acts of violence against the rebels find
justification in the exigencies of armed hostilities which is of the
essence of waging a rebellion or insurrection, most assuredly so in
case of invasion, merely seizing their persons and detaining them
while any of these contingencies continue cannot be less justified.
. . ." 3
The record, moreover, shows that the criminal case filed against
Rolando Dural and Bernardo Itucal, Jr. for "Double Murder, etc."
was tried in the court below and at the conclusion thereof, or on
17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were
found guilty of the charge and sentenced accordingly. Rolando
Dural is now serving the sentence imposed upon him by the trial
court. Thus, the writ of habeas corpus is no longer available to
him. For, as held in the early case of U.S. vs. Wilson: 4
"In this case, whatever may be said about the manner of his
arrest, the fact remains that the defendant was actually in court in
the custody of the law on March 29, when a complaint sufficient
in form and substance was read to him. To this he pleaded not
guilty. The trial followed, in which, and in the judgment of guilty
pronounced by the court, we find no error. Whether, if there were
irregularities in bringing him personally before the court, he could
have been released on a writ of habeas corpus or now has a civil
action for damages against the person who arrested him we need
not inquire. It is enough to say that such irregularities are not
sufficient to set aside a valid judgment rendered upon a sufficient
complaint and after a trial free from error."
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia
Roque and Wilfredo Buenaobra, without warrant, is also justified.
When apprehended at the house of Renato Constantino in
Marikina Heights, Marikina, Metro Manila, Wilfredo Buenaobra
admitted that he was an NPA courier and he had with him letters
to Renato Constantino and other members of the rebel group.
Amelia Roque, upon the other hand, was a member of the
National United Front Commission, in charge of finance, and
admitted ownership of subversive documents found in the house
of her sister in Caloocan City. She was also in possession of
ammunition and a fragmentation grenade for which she had no
permit or authority to possess. LLpr
The record of these two (2) cases shows that on 27 June 1988, one
Rogelio Ramos y Ibanes, a member of the NPA, who had
surrendered to the military authorities, told military agents about
the operations of the Communist Party of the Philippines (CPP)
and the New Peoples Army (NPA) in Metro Manila. He identified
some of his former comrades as "Ka Mong", a staff member of the
Communications and Transportation Bureau; "Ka Nelia" a staff
member in charge of finance; "Ka Miller", an NPA courier from
Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also
pointed to a certain house occupied by Renato Constantino
located in the Villaluz Compound, Molave St., Marikina Heights,
Marikina, Metro Manila, which is used as a safehouse of the
National United Front Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed
under military surveillance and on 12 August 1988, pursuant to a
search warrant issued by Judge Eutropio Migrino of the Regional
3
Trial Court of Pasig, a search of the house was conducted at about
5:00 o'clock in the afternoon, by a combined team of the Criminal
Investigation Service, National Capital District (CIS-NCD) and the
Constabulary Security Group (CSG). In the course of the search,
the following articles were found and taken under proper receipt:
a) One (1 ) Colt M1 6A1 long rifle with defaced serial
number;
b) One (1) Cal. .380 ACT/9mm Model PPK 8 SN: 260577 &
2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transceiver SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1 ) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constantino could not produce any
permit or authority to possess the firearms, ammunition, radio
and other communications equipment. Hence, he was brought to
the CIS Headquarters for investigation. When questioned, he
refused to give a written statement, although he admitted that he
was a staff member of the executive committee of the NUFC and a
ranking member of the International Department of the
Communist Party of the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August
1988), Wilfredo Buenaobra arrived at the house of Renato
Constantino in the Villaluz Compound. When accosted, he readily
admitted to the military agents that he is a regular member of the
CPP/NPA and that he went to the place to deliver letters to "Ka
Mong", referring to Renato Constantino, and other members of
the rebel group. On further questioning, he also admitted that he
is known as "Ka Miller" and that he was from Barangay San Pedro,
Lopez, Quezon. Among the items taken from him were the
following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A
& Co." dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell
datre)" dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic",
dated August 11, 1988.
Also found in Buenaobra's possession was a piece of paper
containing a written but jumbled telephone number of Florida M.
Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St.,
Caloocan City. Acting on the lead provided as to the whereabouts
of Amelia Roque, the military agents went to the given address
the next day (13 August 1988). They arrived at the place at about house of Renato Constantino, they had a bag containing
11:00 o'clock in the morning. After identifying themselves as subversive materials, and both carried firearms and ammunition
military agents and after seeking permission to search the place, for which they had no license to possess or carry.
which was granted, the military agents conducted a search in the
presence of the occupants of the house and the barangay captain The record of these two (2) cases shows that at about 7:30 o'clock
of the place, one Jesus D. Olba. in the evening of 13 August 1988, Domingo T. Anonuevo and
Ramon Casiple arrived at the house of Renato Constantino at
The military agents found the place to be another safehouse of Marikina Heights, Marikina, which was still under surveillance by
the NUFC/CPP. They found ledgers, journals, vouchers, bank military agents. The military agents noticed bulging objects on
deposit books, folders, computer diskettes, and subversive their waist lines. When frisked, the agents found them to be
documents as well as live ammunition for a .38 SPL Winchester, loaded guns. Anonuevo and Casiple were asked to show their
11 rounds of live ammunition for a cal. .45, 19 rounds of live permit or license to possess or carry firearms and ammunition,
ammunition for an M16 Rifle, and a fragmentation grenade. As a but they could not produce any. Hence, they were brought to PC
result, Amelia Roque and the other occupants of the house were Headquarters for investigation. Found in their possession were
brought to the PC-CIS Headquarters at Camp Crame, Quezon City, the following articles:
for investigation. Amelia Roque admitted to the investigators that
the voluminous documents belonged to her and that the other a) Voluminous subversive documents
occupants of the house had no knowledge of them. As a result,
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one
the said other occupants of the house were released from
(1) magazine for Cal. 7.65 containing ten (10) live ammunition of
custody.
same caliber;
On 15 August 1988, Amelia Roque was brought to the Caloocan
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit
City Fiscal for inquest after which an information charging her
tampered with one (1) magazine containing five (5) live
with violation of PD 1866 was filed with the Regional Trial Court of
ammunition of same caliber.
Caloocan City. The case is docketed therein as Criminal Case No.
C-1196. Another information for violation of the Anti-Subversion
At the PC Stockade, Domingo Anonuevo was identified as
Act was filed against Amelia Roque before the Metropolitan Trial
"KaTed", and Ramon Casiple as "Ka Totoy" of the CPP, by their
Court of Caloocan City, which is docketed therein as Criminal Case
comrades who had previously surrendered to the military.
No. C-150458.
On 15 August 1988, the record of the investigation and other
An information for violation of the Anti-Subversion Act was filed
documentary evidence were forwarded to the Provincial Fiscal at
against Wilfredo Buenaobra before the Metropolitan Trial Court
Pasig, Metro Manila, who conducted an inquest, after which
of Marikina, Metro Manila. The case is docketed therein as
Domingo Anonuevo and Ramon Casiple were charged with
Criminal Case No. 23715. Bail was set at P4,000.00.
violation of Presidential Decree No. 1866 before the Regional Trial
Court of Pasig, Metro Manila. The cases are docketed therein as
On 24 August 1988, a petition for habeas corpus was filed before
Criminal Cases Nos. 74386 and 74387, respectively. No bail was
this Court on behalf of Amelia Roque and Wilfredo Buenaobra. At
recommended.
the hearing of the case, however, Wilfredo Buenaobra manifested
his desire to stay in the PC-INP Stockade at Camp Crame, Quezon
On 24 August 1988, a petition for habeas corpus was filed with
City. Accordingly, the petition for habeas corpus filed on his behalf
this Court on behalf of Domingo Anonuevo and Ramon Casiple,
is now moot and academic. Only the petition of Amelia Roque
alleging that the said Anonuevo and Casiple were unlawfully
remains for resolution. LLjur
arrested without a warrant and that the informations filed against
them are null and void for having been filed without prior hearing
The contention of respondents that petitioners Roque and
and preliminary investigation. On 30 August 1988, the Court
Buenaobra are officers and or members of the National United
issued the writ of habeas corpus, and after the respondents had
Front Commission (NUFC) of the CPP was not controverted or
filed a Return of the Writ, the parties were heard.
traversed by said petitioners. The contention must be deemed
admitted. 5 As officers and/ or members of the NUFC-CPP, their
The petitioners' (Anonuevo and Casiple) claim that they were
arrest, without warrant, was justified for the same reasons earlier
unlawfully arrested because there was no previous warrant of
stated vis-a-vis Rolando Dural. The arrest without warrant of
arrest, is without merit. The record shows that Domingo
Roque was additionally justified as she was, at the time of
Anonuevo and Ramon Casiple were carrying unlicensed firearms
apprehension, in possession of ammunitions without license to
and ammunition in their person when they were apprehended.
possess them.
There is also no merit in the contention that the informations filed
III
against them are null and void for want of a preliminary
investigation. The filing of an information, without a preliminary
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of
investigation having been first conducted, is sanctioned by the
Domingo Anonuevo and Ramon Casiple, without warrant, is also
Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads:
justified under the rules. Both are admittedly members of the
standing committee of the NUFC and, when apprehended in the
4
"Sec. 7. When accused lawfully arrested without a warrant. —
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or
arresting officer or person.
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of his choice.
Notwithstanding such waiver, he may apply for bail as provided in
the corresponding rule and the investigation must be terminated
within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may within
five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same
right to adduce evidence in his favor in the manner prescribed in
this Rule."
The petitioners Domingo Anonuevo and Ramon Casiple, however,
refused to sign a waiver of the provisions of Article 125 of the
Revised Penal Code, as amended. In the informations filed against
them, the prosecutor made identical certifications, as follows:
"This is to certify that the accused has been charged in accordance
with Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure,
that no preliminary investigation was conducted because the
accused has not made and signed a waiver of the provisions of
Art. 125 of the Revised Penal Code, as amended; that based on
the evidence presented, there is reasonable ground to believe
that the crime has been committed, and that the accused is
probably guilty thereof."
Nor did petitioners ask for a preliminary investigation after the
informations had been filed against them in court. Petitioners
cannot now claim that they have been deprived of their
constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant,
of Vicky Ocaya is justified under the Rules, since she had with her
an unlicensed ammunition when she was arrested. The record of
this case shows that on 12 May 1988, agents of the PC Intelligence
and Investigation of the Rizal PC-INP Command, armed with a
search warrant issued by Judge Eutropio Migrino of the Regional
Trial Court of Pasig, Metro Manila, conducted a search of a house
located at Block 19, Phase II, Marikina Green Heights, Marikina,
Metro Manila, believed to be occupied by Benito Tiamson, head of
the CPP-NPA. In the course of the search, Vicky Ocaya armed in a
car driven by Danny Rivera. Subversive documents and several
rounds of ammunition for a .45 cal. pistol were found in the car of
Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were
5
brought to the PC Headquarters for investigation. When Vicky
Ocaya could not produce any permit or authorization to possess
the ammunition, an information charging her with violation of PD
1866 was filed with the Regional Trial Court of Pasig, Metro
Manila. The case is docketed therein as Criminal Case No. 73447.
Danny Rivera, on the other hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this
Court on behalf of Vicky Ocaya and Danny Rivera. It was alleged
therein that Vicky Ocaya was illegally arrested and detained, and
denied the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in
flagranti delicto so that her arrest without a warrant is justified.
No preliminary investigation was conducted because she was
arrested without a warrant and she refused to waive the
provisions of Article 125 of the Revised Penal Code, pursuant to
Sec. 7, Rule 112 of the Rules of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple,
and Amelia Roque claim that the firearms, ammunition and
subversive documents alleged to have been found in their
possession when they were arrested, did not belong to them, but
were "planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to
support their aforesaid claim. On the other hand, no evil motive or
ill-will on the part of the arresting officers that would cause the
said arresting officers in these cases to accuse the petitioners
falsely, has been shown. Besides, the arresting officers in these
cases do not appear to be seekers of glory and bounty hunters for,
as counsel for the petitioners Anonuevo and Casiple say, "there is
absolutely nothing in the evidence submitted during the inquest
that petitioners are on the 'AFP Order of Battle with a reward of
P15,000.00 on each on their heads.' " 6 On the other hand, as
pointed out by the Solicitor General, the arrest of the petitioners
is not a product of a witch hunt or a fishing expedition, but the
result of an in-depth surveillance of NPA safehouses pointed to by
no less than former comrades of the petitioners in the rebel
movement. LexLib
The Solicitor General, in his Consolidated Memorandum, aptly
observes:
". . . To reiterate, the focal point in the case of petitioners Roque,
Buenaobra, Anonuevo and Casiple, was the lawful search and
seizure conducted by the military at the residence of Renato
Constantino at Villaluz Compound, Molave St., Marikina Heights,
Marikina, Metro Manila. The raid at Constantino's residence, was
not a witch hunting or fishing expedition on the part of the
military. It was a result of an in-depth military surveillance
coupled with the leads provided by former members of the
underground subversive organizations. That raid produced
positive results. To date, nobody has disputed the fact that the
residence of Constantino when raided yielded communication
equipment, firearms and ammunitions, as well as subversive
documents.
The military agents working on the information provided by
Constantino that other members of his group were coming to his
place, reasonably conducted a 'stake-out' operation whereby
some members of the raiding team were left behind the place.
True enough, barely two hours after the raid and Constantino's
arrest, petitioner Buenaobra arrived at Constantino's residence.
He acted suspiciously and when frisked and searched by the
military authorities, found in his person were letters. They are no
ordinary letters, as even a cursory reading would show. Not only
that, Buenaobra admitted that he is a NPA courier and was there
to deliver the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of
Constantino and Buenaobra, petitioners Anonuevo and Casiple
arrived at Constantino's place. Would it be unreasonable for the
military agents to believe that petitioners Anonuevo and Casiple
are among those expected to visit Constantino's residence
considering that Constantino's information was true, in that
Buenaobra did come to that place? Was it unreasonable under the
circumstances, on the part of the military agents, not to frisk and
search anyone who should visit the residence of Constantino, such
as petitioners Anonuevo and Casiple? Must this Honorable Court
yield to Anonuevo and Casiple's flimsy and bare assertion that
they went to visit Constantino, who was to leave for Saudi Arabia
on the day they were arrested thereat?.
As to petitioner Roque, was it unreasonable for the military
authorities to effect her arrest without warrant considering that it
was Buenaobra who provided the leads on her identity? It cannot
be denied that Buenaobra had connection with Roque. Because
the former has the phone number of the latter. Why the necessity
of jumbling Roque's telephone number as written on a piece of
paper taken from Buenaobra's possession? Petitioners Roque and
Buenaobra have not offered any plausible reason so far.
In all the above incidents, respondents maintain that they acted
reasonably, under the time, place and circumstances of the events
in question, especially considering that at the time of petitioners'
arrest, incriminatory evidence, i.e, firearms, ammunitions and/or
subversive documents were found in their possession.
Petitioners, when arrested, were neither taking their snacks nor
innocently visiting a camp, but were arrested in such time, place
and circumstances, from which one can reasonably conclude that
they were up to a sinister plot, involving utmost secrecy and
comprehensive conspiracy.".
VI
In G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus
of the petitioner Deogracias Espiritu, who is detained by virtue of
an Information for Violation of Article 142 of the Revised Penal
Code (Inciting to Sedition) filed with the Regional Trial Court of
Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the
General Secretary of the Pinagkaisahang Samahan ng Tsuper at
Operators Nationwide (PISTON), an association of drivers and
operators of public service vehicles in the Philippines, organized
for their mutual aid and protection. cdll
6
Petitioner claims that at about 5:00 o'clock in the morning of 23
November 1988, while he was sleeping in his home located at 363
Valencia St., Sta. Mesa, Manila, he was awakened by his sister
Maria Paz Lalic who told him that a group of persons wanted to
hire his jeepney. When he went down to talk to them, he was
immediately put under arrest. When he asked for the warrant of
arrest arrest, the men, headed by Col. Ricardo Reyes, bodily lifted
him and placed him in their owner-type jeepney. He demanded
that his sister, Maria Paz Lalic, be allowed to accompany him, but
the men did not accede to his request and hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police
District at Blumentritt, Manila where he was interrogated and
detained. Then, at about 9:00 o'clock of the same morning, he
was brought before the respondent Lim and, there and then, the
said respondent ordered his arrest and detention. He was
thereafter brought to the General Assignment Section,
Investigation Division of the Western Police District under Police
Capt. Cresenciano A. Cabasal where he was detained, restrained
and deprived of his liberty. 7
The respondents claim however, that the detention of the
petitioner is justified in view of the Information filed against him
before the Regional Trial Court of Manila, docketed therein as
Criminal Case No. 88-683-85, charging him with violation of Art.
142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully
arrested without a judicial warrant of arrest since petitioner when
arrested had in fact just committed an offense in that in the
afternoon of 22 November 1988, during a press conference at the
National Press Club.
"Deogracias Espiritu through tri-media was heard urging all drivers
and operators to go on nationwide strike on November 23, 1988,
to force the government to give in to their demands to lower the
prices of spare parts, commodities, water and the immediate
release from detention of the president of the PISTON (Pinag-
isang Samahan ng Tsuper Operators Nationwide). Further, we
heard Deogracias Espiritu taking the place of PISTON president
Medardo Roda and also announced the formation of the Alliance
Drivers Association to go on nationwide strike on November 23,
1988." 8
Policemen waited for petitioner outside the National Press Club in
order to investigate him, but he gave the lawmen the slip. 9 He
was next seen at about 5:00 o'clock that afternoon at a gathering
of drivers and sympathizers at the corner of Magsaysay Blvd. and
Valencia Street, Sta. Mesa, Manila where he was heard to say:
"Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na
kasali sila, at hindi tayo titigil hanggang hindi binibigay ng
gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare
parts, bilihin at ang pagpapalaya sa ating pinuno na si Ka Roda
hanggang sa magkagulo na." 10 (emphasis supplied).
The police finally caught up with the petitioner on 23 November
1988. He was invited for questioning and brought to police
headquarters after which an Information for violation of Art. 142
of the Revised Penal Code was filed against him before the
Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in
accordance with the provisions of Rule 113, Sec. 5(b) of the Rules
of Court and that the petitioner is detained by virtue of a valid
information filed with the competent court, he may not be
released on habeas corpus. He may, however be released upon
posting bail as recommended. However, we find the amount of
the recommended bail (P60,000.00) excessive and we reduce it to
P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find
no merit in the submission of Narciso Nazareno that he was
illegally arrested and is unlawfully detained. The record of this
case shows that at about 8:30 o'clock in the morning of 14
December 1988, one Romulo Bunye II was killed by a group of
men near the corner of T. Molina and Mendiola Streets in
Alabang, Muntinglupa, Metro Manila. One of the suspects in the
killing was Ramil Regala who was arrested by the police on 28
December 1988. Upon questioning, Regala pointed to Narciso
Nazareno as one of his companions in the killing of the said
Romulo Bunye II. In view thereof, the police officers, without
warrant, picked up Narciso Nazareno and brought him to the
police headquarters for questioning. Obviously, the evidence of
petitioner's guilt is strong because on 3 January 1989, an
information charging Narciso Nazareno, Ramil Regala, and two (2)
others, with the killing of Romulo Bunye II was filed with the
Regional Trial Court of Makati, Metro Manila. The case is docketed
therein as Criminal Case No. 731. cdphil
On 7 January 1989, Narciso Nazareno filed a motion to post bail,
but the motion was denied by the trial court in an order dated 10
January 1989, even as the motion to post bail, earlier filed by his
co-accused, Manuel Laureaga, was granted by the same trial
court.
On 13 January 1989, a petition for habeas corpus was filed with
this Court on behalf of Narciso Nazareno and on 13 January 1989,
the Court issued the writ of habeas corpus, returnable to the
Presiding Judge of the Regional Trial Court of Biñan, Laguna,
Branch 24, ordering said court to hear the case on 30 January
1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the
Presiding Judge of the Regional Trial Court of Biñan, Laguna issued
a resolution denying the petition for habeas corpus, it appearing
that the said Narciso Nazareno is in the custody of the
respondents by reason of an information filed against him with
the Regional Trial Court of Makati, Metro Manila which had taken
cognizance of said case and had, in fact, denied the motion for bail
filed by said Narciso Nazareno (presumably because of the
strength of the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of
Biñan, Laguna are based upon the facts and the law.
Consequently, we will not disturb the same. Evidently, the arrest
of Nazareno was effected by the police without warrant pursuant
7
to Sec. 5 (b), Rule 113, Rules of Court after he was positively
implicated by his co-accused Ramil Regala in the killing of Romulo
Bunye II; and after investigation by the police authorities. As held
in People vs. Ancheta: 12
"The obligation of an agent of authority to make an arrest by
reason of a crime, does not presuppose as a necessary requisite
for the fulfillment thereof, the indubitable existence of a crime.
For the detention to be perfectly legal, it is sufficient that the
agent or person in authority making the arrest has reasonably
sufficient grounds to believe the existence of an act having the
characteristics of a crime and that the same grounds exist to
believe that the person sought to be detained participated
therein."
VIII
It is to be noted that, in all the petitions here considered, criminal
charges have been filed in the proper courts against the
petitioners. The rule is, that if a person alleged to be restrained of
his liberty is in the custody of an officer under process issued by a
court or judge, and that the court or judge had jurisdiction to issue
the process or make the order, or if such person is charged before
any court, the writ of habeas corpus will not be allowed. Section 4,
Rule 102, Rules of Court, as amended is quite explicit in providing
that:
"Sec. 4. When writ is not allowed or discharge authorized. - If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that
the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if
the jurisdiction appears after the writ is allowed, the person shall
not be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held
to authorize the discharge of a person charged with or convicted
of an offense in the Philippines or of a person suffering
imprisonment under lawful judgment." (emphasis supplied)
At this point, we refer to petitioners' plea for the Court to re-
examine and, thereafter, abandon its pronouncement in Ilagan vs.
Enrile, 13 that a writ of habeas corpus is no longer available after
an information is filed against the person detained and a warrant
of arrest or an order of commitment is issued by the court where
said information has been filed. 14 The petitioners claim that the
said ruling, which was handed down during the past dictatorial
regime to enforce and strengthen said regime, has no place under
the present democratic dispensation and collides with the basic,
fundamental, and constitutional rights of the people. Petitioners
point out that the said doctrine makes possible the arrest and
detention of innocent persons despite lack of evidence against
them, and, most often, it is only after a petition for habeas corpus
is filed before the court that the military authorities file the
criminal information in the courts of law to be able to hide behind
the protective mantle of the said doctrine. This, petitioners assert,
stands as an obstacle to the freedom and liberty of the people and
permits lawless and arbitrary State action.
We find, however, no compelling reason to abandon the said
doctrine. It is based upon express provision of the Rules of Court
and the exigencies served by the law. The fears expressed by the
petitioners are not really unremediable. As the Court sees it, re-
examination or reappraisal, with a view to its abandonment, of
the Ilagan case doctrine is not the answer. The answer and the
better practice would be, not to limit the function of habeas
corpus to a mere inquiry as to whether or not the court which
issued the process, judgment or order of commitment or before
whom the detained person is charged, had jurisdiction or not to
issue the process, judgment or order or to take cognizance of the
case, but rather, as the Court itself states in Morales, Jr. vs. Enrile,
15 "in all petitions for habeas corpus the court must inquire into
every phase and aspect of petitioner's detention — from the
moment petitioner was taken into custody up to the moment the
court passes upon the merits of the petition;" and "only after such
a scrutiny can the court satisfy itself that the due process clause of
our Constitution has in fact been satisfied." This is exactly what
the Court has done in the petitions at bar. This is what should
henceforth be done in all future cases of habeas corpus. In short,
all cases involving deprivation of individual liberty should be
promptly brought to the courts for their immediate scrutiny and
disposition. LLpr

WHEREFORE, the petitions are hereby DISMISSED, except that in

G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's
provisional liberty is hereby ordered reduced from P60,000.00 to
P10,000.00. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,

Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado,
JJ., concur.

8

SECOND DIVISION
[G.R. No. 197788. February 29, 2012.]
RODEL LUZ y ONG, petitioner, vs. PEOPLE OF THE PHILIPPINES, 1
respondent.
DECISION
SERENO, J p:
This is a Petition for Review on Certiorari under Rule 45 seeking to
set aside the Court of Appeals (CA) Decision in CA-G.R. CR No.
32516 dated 18 February 2011 2 and Resolution dated 8 July
2011.
Statement of the Facts and of the Case
The facts, as found by the Regional Trial Court (RTC), which
sustained the version of the prosecution, are as follows:
PO2 Emmanuel L. Alteza, who was then assigned at the Sub-
Station 1 of the Naga City Police Station as a traffic enforcer,
substantially testified that on March 10, 2003 at around 3:00
o'clock in the morning, he saw the accused, who was coming from
the direction of Panganiban Drive and going to Diversion Road,
Naga City, driving a motorcycle without a helmet; that this
prompted him to flag down the accused for violating a municipal
ordinance which requires all motorcycle drivers to wear helmet
(sic) while driving said motor vehicle; that he invited the accused
to come inside their sub-station since the place where he flagged
down the accused is almost in front of the said sub-station; that
while he and SPO1 Rayford Brillante were issuing a citation ticket
for violation of municipal ordinance, he noticed that the accused
was uneasy and kept on getting something from his jacket; that he
was alerted and so, he told the accused to take out the contents
of the pocket of his jacket as the latter may have a weapon inside
it; that the accused obliged and slowly put out the contents of the
pocket of his jacket which was a nickel-like tin or metal container
about two (2) to three (3) inches in size, including two (2)
cellphones, one (1) pair of scissors and one (1) Swiss knife; that
upon seeing the said container, he asked the accused to open it;
that after the accused opened the container, he noticed a cartoon
cover and something beneath it; and that upon his instruction, the
9
accused spilled out the contents of the container on the table
which turned out to be four (4) plastic sachets, the two (2) of
which were empty while the other two (2) contained suspected
shabu. 3
Arraigned on 2 July 2003, petitioner, assisted by counsel, entered
a plea of "Not guilty" to the charge of illegal possession of
dangerous drugs. Pretrial was terminated on 24 September 2003,
after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic
chemist testified for the prosecution. On the other hand,
petitioner testified for himself and raised the defense of planting
of evidence and extortion.
In its 19 February 2009 Decision, 4 the RTC convicted petitioner of
illegal possession of dangerous drugs 5 committed on 10 March
2003. It found the prosecution evidence sufficient to show that he
had been lawfully arrested for a traffic violation and then
subjected to a valid search, which led to the discovery on his
person of two plastic sachets later found to contain shabu. The
RTC also found his defense of frame-up and extortion to be weak,
self-serving and unsubstantiated. The dispositive portion of its
Decision held:
WHEREFORE, judgment is hereby rendered, finding accused
RODEL LUZ y ONG GUILTY beyond reasonable doubt for the crime
of violation of Section 11, Article II of Republic Act No. 9165 and
sentencing him to suffer the indeterminate penalty of
imprisonment ranging from twelve (12) years and (1) day, as
minimum, to thirteen (13) years, as maximum, and to pay a fine of
Three Hundred Thousand Pesos (P300,000.00).
The subject shabu is hereby confiscated for turn over to the
Philippine Drug Enforcement Agency for its proper disposition and
destruction in accordance with law.
SO ORDERED. 6
Upon review, the CA affirmed the RTC's Decision.
On 12 September 2011, petitioner filed under Rule 45 the instant
Petition for Review on Certiorari dated 1 September 2011. In a
Resolution dated 12 October 2011, this Court required respondent
to file a comment on the Petition. On 4 January 2012, the latter
filed its Comment dated 3 January 2012.
Petitioner raised the following grounds in support of his Petition:
(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT
SHABU IS INVALID.
(ii) THE PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF DUTY OF THE POLICE OFFICER CANNOT BE
RELIED UPON IN THIS CASE.
(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE
ALLEGED SUBJECT SPECIMEN HAS BEEN COMPROMISED.
(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT
PROVEN BEYOND THE REASONABLE DOUBT (sic). 7
Petitioner claims that there was no lawful search and seizure,
because there was no lawful arrest. He claims that the finding that
there was a lawful arrest was erroneous, since he was not even
issued a citation ticket or charged with violation of the city
ordinance. Even assuming there was a valid arrest, he claims that
he had never consented to the search conducted upon him.
On the other hand, finding that petitioner had been lawfully
arrested, the RTC held thus:
It is beyond dispute that the accused was flagged down and
apprehended in this case by Police Officers Alteza and Brillante for
violation of City Ordinance No. 98-012, an ordinance requiring the
use of crash helmet by motorcycle drivers and riders thereon in
the City of Naga and prescribing penalties for violation thereof.
The accused himself admitted that he was not wearing a helmet
at the time when he was flagged down by the said police officers,
albeit he had a helmet in his possession. Obviously, there is legal
basis on the part of the apprehending officers to flag down and
arrest the accused because the latter was actually committing a
crime in their presence, that is, a violation of City Ordinance No.
98-012. In other words, the accused, being caught in flagrante
delicto violating the said Ordinance, he could therefore be lawfully
stopped or arrested by the apprehending officers. . . . . 8
We find the Petition to be impressed with merit, but not for the
particular reasons alleged. In criminal cases, an appeal throws the
entire case wide open for review and the reviewing tribunal can
correct errors, though unassigned in the appealed judgment, or
even reverse the trial court's decision based on grounds other
than those that the parties raised as errors. 9
First, there was no valid arrest of petitioner. When he was flagged
down for committing a traffic violation, he was not, ipso facto and
solely for this reason, arrested.
Arrest is the taking of a person into custody in order that he or she
may be bound to answer for the commission of an offense. 10 It is
effected by an actual restraint of the person to be arrested or by
that person's voluntary submission to the custody of the one
making the arrest. Neither the application of actual force, manual
touching of the body, or physical restraint, nor a formal
declaration of arrest, is required. It is enough that there be an
intention on the part of one of the parties to arrest the other, and
that there be an intent on the part of the other to submit, under
the belief and impression that submission is necessary. 11
Under R.A. 4136, or the Land Transportation and Traffic Code, the
general procedure for dealing with a traffic violation is not the
arrest of the offender, but the confiscation of the driver's license
of the latter:
SECTION 29. Confiscation of Driver's License. — Law
enforcement and peace officers of other agencies duly deputized
by the Director shall, in apprehending a driver for any violation of
this Act or any regulations issued pursuant thereto, or of local
traffic rules and regulations not contrary to any provisions of this
Act, confiscate the license of the driver concerned and issue a
receipt prescribed and issued by the Bureau therefor which shall
authorize the driver to operate a motor vehicle for a period not
10
exceeding seventy-two hours from the time and date of issue of
said receipt. The period so fixed in the receipt shall not be
extended, and shall become invalid thereafter. Failure of the
driver to settle his case within fifteen days from the date of
apprehension will be a ground for the suspension and/or
revocation of his license.
Similarly, the Philippine National Police (PNP) Operations Manual
12 provides the following procedure for flagging down vehicles
during the conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting
Vehicles While in Mobile Car. — This rule is a general concept and
will not apply in hot pursuit operations. The mobile car crew shall
undertake the following, when applicable: . . .
m. If it concerns traffic violations, immediately issue a
Traffic Citation Ticket (TCT) or Traffic Violation Report (TVR).
Never indulge in prolonged, unnecessary conversation or
argument with the driver or any of the vehicle's occupants;
At the time that he was waiting for PO3 Alteza to write his citation
ticket, petitioner could not be said to have been "under arrest."
There was no intention on the part of PO3 Alteza to arrest him,
deprive him of his liberty, or take him into custody. Prior to the
issuance of the ticket, the period during which petitioner was at
the police station may be characterized merely as waiting time. In
fact, as found by the trial court, PO3 Alteza himself testified that
the only reason they went to the police sub-station was that
petitioner had been flagged down "almost in front" of that place.
Hence, it was only for the sake of convenience that they were
waiting there. There was no intention to take petitioner into
custody.
In Berkemer v. McCarty, 13 the United States (U.S.) Supreme
Court discussed at length whether the roadside questioning of a
motorist detained pursuant to a routine traffic stop should be
considered custodial interrogation. The Court held that, such
questioning does not fall under custodial interrogation, nor can it
be considered a formal arrest, by virtue of the nature of the
questioning, the expectations of the motorist and the officer, and
the length of time the procedure is conducted. It ruled as follows:
It must be acknowledged at the outset that a traffic stop
significantly curtails the "freedom of action" of the driver and the
passengers, if any, of the detained vehicle. Under the law of most
States, it is a crime either to ignore a policeman's signal to stop
one's car or, once having stopped, to drive away without
permission. . . .
However, we decline to accord talismanic power to the phrase in
the Miranda opinion emphasized by respondent. Fidelity to the
doctrine announced in Miranda requires that it be enforced
strictly, but only in those types of situations in which the concerns
that powered the decision are implicated. Thus, we must decide
whether a traffic stop exerts upon a detained person pressures
that sufficiently impair his free exercise of his privilege against
self-incrimination to require that he be warned of his
constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a
person questioned will be induced "to speak where he would not
otherwise do so freely," Miranda v. Arizona, 384 U.S., at 467. First,
detention of a motorist pursuant to a traffic stop is presumptively
temporary and brief. The vast majority of roadside detentions last
only a few minutes. A motorist's expectations, when he sees a
policeman's light flashing behind him, are that he will be obliged
to spend a short period of time answering questions and waiting
while the officer checks his license and registration, that he may
then be given a citation, but that in the end he most likely will be
allowed to continue on his way. In this respect, questioning
incident to an ordinary traffic stop is quite different from
stationhouse interrogation, which frequently is prolonged, and in
which the detainee often is aware that questioning will continue
until he provides his interrogators the answers they seek. See id.,
at 451.
Second, circumstances associated with the typical traffic stop are
not such that the motorist feels completely at the mercy of the
police. To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some
discretion in deciding whether to issue a citation, in combination,
exert some pressure on the detainee to respond to questions. But
other aspects of the situation substantially offset these forces.
Perhaps most importantly, the typical traffic stop is public, at least
to some degree. . . .
In both of these respects, the usual traffic stop is more analogous
to a so-called "Terry stop," see Terry v. Ohio, 392 U.S. 1 (1968),
than to a formal arrest. . . . The comparatively nonthreatening
character of detentions of this sort explains the absence of any
suggestion in our opinions that Terry stops are subject to the
dictates of Miranda. The similarly noncoercive aspect of ordinary
traffic stops prompts us to hold that persons temporarily detained
pursuant to such stops are not "in custody" for the purposes of
Miranda.
xxx xxx xxx
We are confident that the state of affairs projected by respondent
will not come to pass. It is settled that the safeguards prescribed
by Miranda become applicable as soon as a suspect's freedom of
action is curtailed to a "degree associated with formal arrest."
California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). If a
motorist who has been detained pursuant to a traffic stop
thereafter is subjected to treatment that renders him "in custody"
for practical purposes, he will be entitled to the full panoply of
protections prescribed by Miranda. See Oregon v. Mathiason, 429
U.S. 492, 495 (1977) (per curiam). (Emphasis supplied.)
The U.S. Court in Berkemer thus ruled that, since the motorist
therein was only subjected to modest questions while still at the
scene of the traffic stop, he was not at that moment placed under
custody (such that he should have been apprised of his Miranda
rights), and neither can treatment of this sort be fairly
characterized as the functional equivalent of a formal arrest.
Similarly, neither can petitioner here be considered "under arrest"
at the time that his traffic citation was being made.
11
It also appears that, according to City Ordinance No. 98-012,
which was violated by petitioner, the failure to wear a crash
helmet while riding a motorcycle is penalized by a fine only. Under
the Rules of Court, a warrant of arrest need not be issued if the
information or charge was filed for an offense penalized by a fine
only. It may be stated as a corollary that neither can a warrantless
arrest be made for such an offense.
This ruling does not imply that there can be no arrest for a traffic
violation. Certainly, when there is an intent on the part of the
police officer to deprive the motorist of liberty, or to take the
latter into custody, the former may be deemed to have arrested
the motorist. In this case, however, the officer's issuance (or
intent to issue) a traffic citation ticket negates the possibility of an
arrest for the same violation.
Even if one were to work under the assumption that petitioner
was deemed "arrested" upon being flagged down for a traffic
violation and while awaiting the issuance of his ticket, then the
requirements for a valid arrest were not complied with.
This Court has held that at the time a person is arrested, it shall be
the duty of the arresting officer to inform the latter of the reason
for the arrest and must show that person the warrant of arrest, if
any. Persons shall be informed of their constitutional rights to
remain silent and to counsel, and that any statement they might
make could be used against them. 14 It may also be noted that in
this case, these constitutional requirements were complied with
by the police officers only after petitioner had been arrested for
illegal possession of dangerous drugs.
In Berkemer, the U.S. Court also noted that the Miranda warnings
must also be given to a person apprehended due to a traffic
violation:
The purposes of the safeguards prescribed by Miranda are to
ensure that the police do not coerce or trick captive suspects into
confessing, to relieve the "inherently compelling pressures"
"generated by the custodial setting itself," "which work to
undermine the individual's will to resist," and as much as possible
to free courts from the task of scrutinizing individual cases to try
to determine, after the fact, whether particular confessions were
voluntary. Those purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanors as they are by
questioning of persons suspected of felonies.
If it were true that petitioner was already deemed "arrested"
when he was flagged down for a traffic violation and while he
waiting * for his ticket, then there would have been no need for
him to be arrested for a second time — after the police officers
allegedly discovered the drugs — as he was already in their
custody.
Second, there being no valid arrest, the warrantless search that
resulted from it was likewise illegal.
The following are the instances when a warrantless search is
allowed: (i) a warrantless search incidental to a lawful arrest; (ii)
search of evidence in "plain view;" (iii) search of a moving vehicle;
(iv) consented warrantless search; (v) customs search; (vi) a "stop
and frisk" search; and (vii) exigent and emergency circumstances.
15 None of the above-mentioned instances, especially a search
incident to a lawful arrest, are applicable to this case.
It must be noted that the evidence seized, although alleged to be
inadvertently discovered, was not in "plain view." It was actually
concealed inside a metal container inside petitioner's pocket.
Clearly, the evidence was not immediately apparent. 16
Neither was there a consented warrantless search. Consent to a
search is not to be lightly inferred, but shown by clear and
convincing evidence. 17 It must be voluntary in order to validate
an otherwise illegal search; that is, the consent must be
unequivocal, specific, intelligently given and uncontaminated by
any duress or coercion. While the prosecution claims that
petitioner acceded to the instruction of PO3 Alteza, this alleged
accession does not suffice to prove valid and intelligent consent.
In fact, the RTC found that petitioner was merely "told" to take
out the contents of his pocket. 18
Whether consent to the search was in fact voluntary is a question
of fact to be determined from the totality of all the circumstances.
Relevant to this determination are the following characteristics of
the person giving consent and the environment in which consent
is given: (1) the age of the defendant; (2) whether the defendant
was in a public or a secluded location; (3) whether the defendant
objected to the search or passively looked on; (4) the education
and intelligence of the defendant; (5) the presence of coercive
police procedures; (6) the defendant's belief that no incriminating
evidence would be found; (7) the nature of the police questioning;
(8) the environment in which the questioning took place; and (9)
the possibly vulnerable subjective state of the person consenting.
It is the State that has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained, and was
freely and voluntarily given. 19 In this case, all that was alleged
was that petitioner was alone at the police station at three in the
morning, accompanied by several police officers. These
circumstances weigh heavily against a finding of valid consent to a
warrantless search.
Neither does the search qualify under the "stop and frisk" rule.
While the rule normally applies when a police officer observes
suspicious or unusual conduct, which may lead him to believe that
a criminal act may be afoot, the stop and frisk is merely a limited
protective search of outer clothing for weapons. 20
In Knowles v. Iowa, 21 the U.S. Supreme Court held that when a
police officer stops a person for speeding and correspondingly
issues a citation instead of arresting the latter, this procedure
does not authorize the officer to conduct a full search of the car.
The Court therein held that there was no justification for a full-
blown search when the officer does not arrest the motorist.
Instead, police officers may only conduct minimal intrusions, such
as ordering the motorist to alight from the car or doing a
patdown:
In Robinson, supra, we noted the two historical rationales for the
"search incident to arrest" exception: (1) the need to disarm the
suspect in order to take him into custody, and (2) the need to
preserve evidence for later use at trial. . . . But neither of these
12
underlying rationales for the search incident to arrest exception is
sufficient to justify the search in the present case.
We have recognized that the first rationale — officer safety — is
"'both legitimate and weighty,'" . . . The threat to officer safety
from issuing a traffic citation, however, is a good deal less than in
the case of a custodial arrest. In Robinson, we stated that a
custodial arrest involves "danger to an officer" because of "the
extended exposure which follows the taking of a suspect into
custody and transporting him to the police station." 414 U.S., at
234-235. We recognized that "[t]he danger to the police officer
flows from the fact of the arrest, and its attendant proximity,
stress, and uncertainty, and not from the grounds for arrest." Id.,
at 234, n. 5. A routine traffic stop, on the other hand, is a
relatively brief encounter and "is more analogous to a so-called
'Terry stop' . . . than to a formal arrest." Berkemer v. McCarty, 468
U.S. 420, 439 (1984). See also Cupp v. Murphy, 412 U.S. 291, 296
(1973) ("Where there is no formal arrest . . . a person might well
be less hostile to the police and less likely to take conspicuous,
immediate steps to destroy incriminating evidence").
This is not to say that the concern for officer safety is absent in the
case of a routine traffic stop. It plainly is not. See Mimms, supra,
at 110; Wilson, supra, at 413-414. But while the concern for
officer safety in this context may justify the "minimal" additional
intrusion of ordering a driver and passengers out of the car, it
does not by itself justify the often considerably greater intrusion
attending a full fieldtype search. Even without the search
authority Iowa urges, officers have other, independent bases to
search for weapons and protect themselves from danger. For
example, they may order out of a vehicle both the driver, Mimms,
supra, at 111, and any passengers, Wilson, supra, at 414; perform
a "patdown" of a driver and any passengers upon reasonable
suspicion that they may be armed and dangerous, Terry v. Ohio,
392 U.S. 1 (1968); conduct a "Terry patdown" of the passenger
compartment of a vehicle upon reasonable suspicion that an
occupant is dangerous and may gain immediate control of a
weapon, Michigan v. Long, 463 U.S. 1032, 1049 (1983); and even
conduct a full search of the passenger compartment, including any
containers therein, pursuant to a custodial arrest, New York v.
Belton, 453 U.S. 454, 460 (1981).
Nor has Iowa shown the second justification for the authority to
search incident to arrest — the need to discover and preserve
evidence. Once Knowles was stopped for speeding and issued a
citation, all the evidence necessary to prosecute that offense had
been obtained. No further evidence of excessive speed was going
to be found either on the person of the offender or in the
passenger compartment of the car. (Emphasis supplied.)
The foregoing considered, petitioner must be acquitted. While he
may have failed to object to the illegality of his arrest at the
earliest opportunity, a waiver of an illegal warrantless arrest does
not, however, mean a waiver of the inadmissibility of evidence
seized during the illegal warrantless arrest. 22
The Constitution guarantees the right of the people to be secure
in their persons, houses, papers and effects against unreasonable
searches and seizures. 23 Any evidence obtained in violation of
said right shall be inadmissible for any purpose in any proceeding.
While the power to search and seize may at times be necessary to
the public welfare, still it must be exercised and the law
implemented without contravening the constitutional rights of
citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of
government. 24
The subject items seized during the illegal arrest are inadmissible.
25 The drugs are the very corpus delicti of the crime of illegal
possession of dangerous drugs. Thus, their inadmissibility
precludes conviction and calls for the acquittal of the accused. 26
WHEREFORE, the Petition is GRANTED. The 18 February 2011
Decision of the Court of Appeals in CA-G.R. CR No. 32516 affirming
the judgment of conviction dated 19 February 2009 of the
Regional Trial Court, 5th Judicial Region, Naga City, Branch 21, in
Criminal Case No. RTC 2003-0087, is hereby REVERSED and SET
ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED. The bail
bond posted for his provisional liberty is CANCELLED and
RELEASED.
SO ORDERED.
EN BANC
[G.R. No. 157870. November 3, 2008.]
SOCIAL JUSTICE SOCIETY (SJS), petitioner, vs. DANGEROUS
DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY
(PDEA), respondents.
[G.R. No. 158633. November 3, 2008.]
ATTY. MANUEL J. LASERNA, JR., petitioner, vs. DANGEROUS
DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY,
respondents.
[G.R. No. 161658. November 3, 2008.]
AQUILINO Q. PIMENTEL, JR., petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
DECISION
VELASCO, JR., J p:
In these kindred petitions, the constitutionality of Section 36 of
Republic Act No. (RA) 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, insofar as it
requires mandatory drug testing of candidates for public office,
students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged
before the prosecutor's office with certain offenses, among other
personalities, is put in issue. THEDcS
As far as pertinent, the challenged section reads as follows:
13
SEC. 36. Authorized Drug Testing.—Authorized drug testing shall
be done by any government forensic laboratories or by any of the
drug testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. . . . The drug testing shall
employ, among others, two (2) testing methods, the screening
test which will determine the positive result as well as the type of
drug used and the confirmatory test which will confirm a positive
screening test. . . . The following shall be subjected to undergo
drug testing:
xxx xxx xxx
(c) Students of secondary and tertiary schools. — Students
of secondary and tertiary schools shall, pursuant to the related
rules and regulations as contained in the school's student
handbook and with notice to the parents, undergo a random drug
testing . . .; STIHaE
(d) Officers and employees of public and private offices. —
Officers and employees of public and private offices, whether
domestic or overseas, shall be subjected to undergo a random
drug test as contained in the company's work rules and
regulations, . . . for purposes of reducing the risk in the workplace.
Any officer or employee found positive for use of dangerous drugs
shall be dealt with administratively which shall be a ground for
suspension or termination, subject to the provisions of Article 282
of the Labor Code and pertinent provisions of the Civil Service
Law; cAaETS
xxx xxx xxx
(f) All persons charged before the prosecutor's office with a
criminal offense having an imposable penalty of imprisonment of
not less than six (6) years and one (1) day shall undergo a
mandatory drug test;
(g) All candidates for public office whether appointed or
elected both in the national or local government shall undergo a
mandatory drug test.
In addition to the above stated penalties in this Section, those
found to be positive for dangerous drugs use shall be subject to
the provisions of Section 15 of this Act. TADIHE
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on
Elections)
On December 23, 2003, the Commission on Elections (COMELEC)
issued Resolution No. 6486, prescribing the rules and regulations
on the mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national and local
elections. The pertinent portions of the said resolution read as
follows: aIHSEc
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing. —. . .
xxx xxx xxx
(g) All candidates for public office . . . both in the national
or local government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides
that public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug
test, the public will know the quality of candidates they are
electing and they will be assured that only those who can serve
with utmost responsibility, integrity, loyalty, and efficiency would
be elected . . . .
NOW THEREFORE, The [COMELEC], pursuant to the authority
vested in it under the Constitution, Batas Pambansa Blg. 881
(Omnibus Election Code), [RA] 9165 and other election laws,
RESOLVED to promulgate, as it hereby promulgates, the following
rules and regulations on the conduct of mandatory drug testing to
candidates for public office[:] CDAHaE
SEC. 1. Coverage. — All candidates for public office, both
national and local, in the May 10, 2004 Synchronized National and
Local Elections shall undergo mandatory drug test in government
forensic laboratories or any drug testing laboratories monitored
and accredited by the Department of Health.
SEC. 3. ...
On March 25, 2004, in addition to the drug certificates filed with
their respective offices, the Comelec Offices and employees
concerned shall submit to the Law Department two (2) separate
lists of candidates. The first list shall consist of those candidates
who complied with the mandatory drug test while the second list
shall consist of those candidates who failed to comply . . . .
SEC. 4. Preparation and publication of names of candidates. —
Before the start of the campaign period, the [COMELEC] shall
prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test
while the second list shall consist of those candidates who failed
to comply with said drug test. . . . SCADIT
SEC. 5. Effect of failure to undergo mandatory drug test and file
drug test certificate. — No person elected to any public office
shall enter upon the duties of his office until he has undergone
mandatory drug test and filed with the offices enumerated under
Section 2 hereof the drug test certificate herein required.
(Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and
a candidate for re-election in the May 10, 2004 elections, 1 filed a
Petition for Certiorari and Prohibition under Rule 65. In it, he
seeks (1) to nullify Sec. 36 (g) of RA 9165 and COMELEC Resolution
No. 6486 dated December 23, 2003 for being unconstitutional in
that they impose a qualification for candidates for senators in
addition to those already provided for in the 1987 Constitution;
and (2) to enjoin the COMELEC from implementing Resolution No.
6486.
14
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of
the Constitution, which states:
SEC. 3. No person shall be a Senator unless he is a natural-born
citizen of the Philippines, and, on the day of the election, is at
least thirty-five years of age, able to read and write, a registered
voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election. aCTHEA
According to Pimentel, the Constitution only prescribes a
maximum of five (5) qualifications for one to be a candidate for,
elected to, and be a member of the Senate. He says that both the
Congress and COMELEC, by requiring, via RA 9165 and Resolution
No. 6486, a senatorial aspirant, among other candidates, to
undergo a mandatory drug test, create an additional qualification
that all candidates for senator must first be certified as drug free.
He adds that there is no provision in the Constitution authorizing
the Congress or COMELEC to expand the qualification
requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board
and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social
Justice Society (SJS), a registered political party, seeks to prohibit
the Dangerous Drugs Board (DDB) and the Philippine Drug
Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f),
and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue
delegation of legislative power when they give unbridled
discretion to schools and employers to determine the manner of
drug testing. For another, the provisions trench in the equal
protection clause inasmuch as they can be used to harass a
student or an employee deemed undesirable. And for a third, a
person's constitutional right against unreasonable searches is also
breached by said provisions. ADSTCI
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs
Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also
seeks in his Petition for Certiorari and Prohibition under Rule 65
that Sec. 36 (c), (d), (f), and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional right to
privacy, the right against unreasonable search and seizure, and
the right against self-incrimination, and for being contrary to the
due process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench
and the matter of the standing of petitioners SJS and Laserna to
sue. As respondents DDB and PDEA assert, SJS and Laserna failed
to allege any incident amounting to a violation of the
constitutional rights mentioned in their separate petitions. 2
It is basic that the power of judicial review can only be exercised
in connection with a bona fide controversy which involves the
statute sought to be reviewed. 3 But even with the presence of an
actual case or controversy, the Court may refuse to exercise
judicial review unless the constitutional question is brought
before it by a party having the requisite standing to challenge it. 4
To have standing, one must establish that he or she has suffered
some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the
challenged action; and the injury is likely to be redressed by a
favorable action. 5 HAcaCS
The rule on standing, however, is a matter of procedure; hence, it
can be relaxed for non-traditional plaintiffs, like ordinary citizens,
taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of
overarching significance to society, or of paramount public
interest. 6 There is no doubt that Pimentel, as senator of the
Philippines and candidate for the May 10, 2004 elections,
possesses the requisite standing since he has substantial interests
in the subject matter of the petition, among other preliminary
considerations. Regarding SJS and Laserna, this Court is wont to
relax the rule on locus standi owing primarily to the
transcendental importance and the paramount public interest
involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36 (g) of RA 9165 and COMELEC Resolution No.
6486 impose an additional qualification for candidates for
senator? Corollarily, can Congress enact a law prescribing
qualifications for candidates for senator in addition to those laid
down by the Constitution? and IECcaA
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the
right to privacy, the right against unreasonable searches and
seizure, and the equal protection clause? Or do they constitute
undue delegation of legislative power?
Pimentel Petition (Constitutionality of Sec. 36 [g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36 (g) of RA 9165 and
COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that, subject
to the provisions on nuisance candidates, a candidate for senator
needs only to meet the qualifications laid down in Sec. 3, Art. VI of
the Constitution, to wit: (1) citizenship, (2) voter registration, (3)
literacy, (4) age, and (5) residency. Beyond these stated
qualification requirements, candidates for senator need not
possess any other qualification to run for senator and be voted
upon and elected as member of the Senate. The Congress cannot
validly amend or otherwise modify these qualification standards,
as it cannot disregard, evade, or weaken the force of a
constitutional mandate, 7 or alter or enlarge the Constitution.
cASEDC
Pimentel's contention is well-taken. Accordingly, Sec. 36 (g) of RA
9165 should be, as it is hereby declared as, unconstitutional. It is
basic that if a law or an administrative rule violates any norm of
the Constitution, that issuance is null and void and has no effect.
15
The Constitution is the basic law to which all laws must conform;
no act shall be valid if it conflicts with the Constitution. 8 In the
discharge of their defined functions, the three departments of
government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must
be observed. 9
Congress' inherent legislative powers, broad as they may be, are
subject to certain limitations. As early as 1927, in Government v.
Springer, the Court has defined, in the abstract, the limits on
legislative power in the following wise:
Someone has said that the powers of the legislative department
of the Government, like the boundaries of the ocean, are
unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of
each of the departments . . . are limited and confined within the
four walls of the constitution or the charter, and each department
can only exercise such powers as are necessarily implied from the
given powers. The Constitution is the shore of legislative authority
against which the waves of legislative enactment may dash, but
over which it cannot leap. 10 EHSIcT
Thus, legislative power remains limited in the sense that it is
subject to substantive and constitutional limitations which
circumscribe both the exercise of the power itself and the
allowable subjects of legislation. 11 The substantive constitutional
limitations are chiefly found in the Bill of Rights 12 and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing
the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing
and administering election laws or promulgating rules and
regulations to implement Sec. 36 (g), validly impose qualifications
on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to
meet such additional qualification, the COMELEC, to be sure, is
also without such power. The right of a citizen in the democratic
process of election should not be defeated by unwarranted
impositions of requirement not otherwise specified in the
Constitution. 13
Sec. 36 (g) of RA 9165, as sought to be implemented by the
assailed COMELEC resolution, effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the
Constitution. As couched, said Sec. 36 (g) unmistakably requires a
candidate for senator to be certified illegal-drug clean, obviously
as a pre-condition to the validity of a certificate of candidacy for
senator or, with like effect, a condition sine qua non to be voted
upon and, if proper, be proclaimed as senator-elect. The
COMELEC resolution completes the chain with the proviso that
"[n]o person elected to any public office shall enter upon the
duties of his office until he has undergone mandatory drug test".
Viewed, therefore, in its proper context, Sec. 36 (g) of RA 9165
and the implementing COMELEC Resolution add another
qualification layer to what the 1987 Constitution, at the minimum,
requires for membership in the Senate. Whether or not the drug-
free bar set up under the challenged provision is to be hurdled
before or after election is really of no moment, as getting elected
would be of little value if one cannot assume office for non- the matter to the Court which shall order that the applicant be
compliance with the drug-testing requirement. CHDTEA examined for drug dependency. If the examination . . . results in
the certification that the applicant is a drug dependent, he/she
It may of course be argued, in defense of the validity of Sec. 36 (g) shall be ordered by the Court to undergo treatment and
of RA 9165, that the provision does not expressly state that non- rehabilitation in a Center designated by the Board . . . .
compliance with the drug test imposition is a disqualifying factor
or would work to nullify a certificate of candidacy. This argument xxx xxx xxx
may be accorded plausibility if the drug test requirement is
optional. But the particular section of the law, without exception, Sec. 55. Exemption from the Criminal Liability Under the
made drug-testing on those covered mandatory, necessarily Voluntary Submission Program. — A drug dependent under the
suggesting that the obstinate ones shall have to suffer the adverse voluntary submission program, who is finally discharged from
consequences for not adhering to the statutory command. And confinement, shall be exempt from the criminal liability under
since the provision deals with candidates for public office, it Section 15 of this Act subject to the following conditions: ISDHEa
stands to reason that the adverse consequence adverted to can
xxx xxx xxx
only refer to and revolve around the election and the assumption
of public office of the candidates. Any other construal would
School children, the US Supreme Court noted, are most vulnerable
reduce the mandatory nature of Sec. 36 (g) of RA 9165 into a pure
to the physical, psychological, and addictive effects of drugs.
jargon without meaning and effect whatsoever.
Maturing nervous systems of the young are more critically
impaired by intoxicants and are more inclined to drug
While it is anti-climactic to state it at this juncture, COMELEC
dependency. Their recovery is also at a depressingly low rate. 15
Resolution No. 6486 is no longer enforceable, for by its terms, it
was intended to cover only the May 10, 2004 synchronized
The right to privacy has been accorded recognition in this
elections and the candidates running in that electoral event.
jurisdiction as a facet of the right protected by the guarantee
Nonetheless, to obviate repetition, the Court deems it appropriate
against unreasonable search and seizure 16 under Sec. 2, Art. III
to review and rule, as it hereby rules, on its validity as an
17 of the Constitution. But while the right to privacy has long
implementing issuance. DCcTHa
come into its own, this case appears to be the first time that the
validity of a state-decreed search or intrusion through the
It ought to be made abundantly clear, however, that the
medium of mandatory random drug testing among students and
unconstitutionality of Sec. 36 (g) of RA 9165 is rooted on its having
employees is, in this jurisdiction, made the focal point. Thus, the
infringed the constitutional provision defining the qualification or
issue tendered in these proceedings is veritably one of first
eligibility requirements for one aspiring to run for and serve as
impression.
senator.
US jurisprudence is, however, a rich source of persuasive
SJS Petition (Constitutionality of Sec. 36 [c], [d], [f], and [g] of RA
jurisprudence. With respect to random drug testing among school
9165)
children, we turn to the teachings of Vernonia School District 47J
The drug test prescribed under Sec. 36 (c), (d), and (f) of RA 9165 v. Acton (Vernonia) and Board of Education of Independent School
for secondary and tertiary level students and public and private District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board
employees, while mandatory, is a random and suspicionless of Education), 18 both fairly pertinent US Supreme Court-decided
arrangement. The objective is to stamp out illegal drug and cases involving the constitutionality of governmental search.
safeguard in the process "the well being of [the] citizenry, cDSAEI
particularly the youth, from the harmful effects of dangerous
In Vernonia, school administrators in Vernonia, Oregon wanted to
drugs". This statutory purpose, per the policy-declaration portion
address the drug menace in their respective institutions following
of the law, can be achieved via the pursuit by the state of "an
the discovery of frequent drug use by school athletes. After
intensive and unrelenting campaign against the trafficking and use
consultation with the parents, they required random urinalysis
of dangerous drugs . . . through an integrated system of planning,
drug testing for the school's athletes. James Acton, a high school
implementation and enforcement of anti-drug abuse policies,
student, was denied participation in the football program after he
programs and projects". 14 The primary legislative intent is not
refused to undertake the urinalysis drug testing. Acton forthwith
criminal prosecution, as those found positive for illegal drug use as
sued, claiming that the school's drug testing policy violated, inter
a result of this random testing are not necessarily treated as
alia, the Fourth Amendment 19 of the US Constitution.
criminals. They may even be exempt from criminal liability should
the illegal drug user consent to undergo rehabilitation. Secs. 54
The US Supreme Court, in fashioning a solution to the issues
and 55 of RA 9165 are clear on this point: aIAHcE
raised in Vernonia, considered the following: (1) schools stand in
loco parentis over their students; (2) school children, while not
Sec. 54. Voluntary Submission of a Drug Dependent to
shedding their constitutional rights at the school gate, have less
Confinement, Treatment and Rehabilitation. — A drug dependent
privacy rights; (3) athletes have less privacy rights than non-
or any person who violates Section 15 of this Act may, by
athletes since the former observe communal undress before and
himself/herself or through his/her parent, [close relatives] . . .
after sports events; (4) by joining the sports activity, the athletes
apply to the Board . . . for treatment and rehabilitation of the drug
voluntarily subjected themselves to a higher degree of school
dependency. Upon such application, the Board shall bring forth
16
supervision and regulation; (5) requiring urine samples does not
invade a student's privacy since a student need not undress for
this kind of drug testing; and (6) there is need for the drug testing
because of the dangerous effects of illegal drugs on the young.
The US Supreme Court held that the policy constituted reasonable
search under the Fourth 20 and 14th Amendments and declared
the random drug-testing policy constitutional. ACIDSc
In Board of Education, the Board of Education of a school in
Tecumseh, Oklahoma required a drug test for high school
students desiring to join extra-curricular activities. Lindsay Earls, a
member of the show choir, marching band, and academic team
declined to undergo a drug test and averred that the drug-testing
policy made to apply to non-athletes violated the Fourth and 14th
Amendments. As Earls argued, unlike athletes who routinely
undergo physical examinations and undress before their peers in
locker rooms, non-athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the
constitutionality of drug testing even among non-athletes on the
basis of the school's custodial responsibility and authority. In so
ruling, said court made no distinction between a non-athlete and
an athlete. It ratiocinated that schools and teachers act in place of
the parents with a similar interest and duty of safeguarding the
health of the students. And in holding that the school could
implement its random drug-testing policy, the Court hinted that
such a test was a kind of search in which even a reasonable parent
might need to engage.
In sum, what can reasonably be deduced from the above two
cases and applied to this jurisdiction are: (1) schools and their
administrators stand in loco parentis with respect to their
students; (2) minor students have contextually fewer rights than
an adult, and are subject to the custody and supervision of their
parents, guardians, and schools; (3) schools, acting in loco
parentis, have a duty to safeguard the health and well-being of
their students and may adopt such measures as may reasonably
be necessary to discharge such duty; and (4) schools have the
right to impose conditions on applicants for admission that are
fair, just, and non-discriminatory. EAcCHI
Guided by Vernonia and Board of Education, the Court is of the
view and so holds that the provisions of RA 9165 requiring
mandatory, random, and suspicionless drug testing of students
are constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and
policies. To be sure, the right to enroll is not absolute; it is subject
to fair, reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited
drugs in the country that threatens the well-being of the people,
21 particularly the youth and school children who usually end up
as victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of
students in secondary and tertiary schools is not only acceptable
but may even be necessary if the safety and interest of the
student population, doubtless a legitimate concern of the
government, are to be promoted and protected. To borrow from
17
Vernonia, "[d]eterring drug use by our Nation's schoolchildren is
as important as enhancing efficient enforcement of the Nation's
laws against the importation of drugs"; the necessity for the State
to act is magnified by the fact that the effects of a drug-infested
school are visited not just upon the users, but upon the entire
student body and faculty. 22 Needless to stress, the random
testing scheme provided under the law argues against the idea
that the testing aims to incriminate unsuspecting individual
students. TAHCEc
Just as in the case of secondary and tertiary level students, the
mandatory but random drug test prescribed by Sec. 36 of RA 9165
for officers and employees of public and private offices is
justifiable, albeit not exactly for the same reason. The Court notes
in this regard that petitioner SJS, other than saying that
"subjecting almost everybody to drug testing, without probable
cause, is unreasonable, an unwarranted intrusion of the individual
right to privacy", 23 has failed to show how the mandatory,
random, and suspicionless drug testing under Sec. 36 (c) and (d) of
RA 9165 violates the right to privacy and constitutes unlawful
and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution. 24 Petitioner Laserna's lament is just as simplistic,
sweeping, and gratuitous and does not merit serious
consideration. Consider what he wrote without elaboration:
The US Supreme Court and US Circuit Courts of Appeals have
made various rulings on the constitutionality of mandatory drug
tests in the school and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug tests violate a
citizen's constitutional right to privacy and right against
unreasonable search and seizure. They are quoted extensively
hereinbelow. 25 EHCDSI
The essence of privacy is the right to be left alone. 26 In context,
the right to privacy means the right to be free from unwarranted
exploitation of one's person or from intrusion into one's private
activities in such a way as to cause humiliation to a person's
ordinary sensibilities. 27 And while there has been general
agreement as to the basic function of the guarantee against
unwarranted search, "translation of the abstract prohibition
against 'unreasonable searches and seizures' into workable broad
guidelines for the decision of particular cases is a difficult task", to
borrow from C. Camara v. Municipal Court. 28 Authorities are
agreed though that the right to privacy yields to certain
paramount rights of the public and defers to the state's exercise
of police power. 29
As the warrantless clause of Sec. 2, Art III of the Constitution is
couched and as has been held, "reasonableness" is the touchstone
of the validity of a government search or intrusion. 30 And
whether a search at issue hews to the reasonableness standard is
judged by the balancing of the government-mandated intrusion
on the individual's privacy interest against the promotion of some
compelling state interest. 31 In the criminal context,
reasonableness requires showing of probable cause to be
personally determined by a judge. Given that the drug-testing
policy for employees –– and students for that matter –– under RA
9165 is in the nature of administrative search needing what was
referred to in Vernonia as "swift and informal disciplinary
procedures", the probable-cause standard is not required or even
practicable. Be that as it may, the review should focus on the
reasonableness of the challenged administrative search in
question. EcICDT
The first factor to consider in the matter of reasonableness is the
nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves
as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement.
The employees' privacy interest in an office is to a large extent
circumscribed by the company's work policies, the collective
bargaining agreement, if any, entered into by management and
the bargaining unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced;
and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion
authorized by the challenged law. Reduced to a question form, is
the scope of the search or intrusion clearly set forth, or, as
formulated in Ople v. Torres, is the enabling law authorizing a
search "narrowly drawn" or "narrowly focused"? 32 ESCcaT
The poser should be answered in the affirmative. For one, Sec. 36
of RA 9165 and its implementing rules and regulations (IRR), as
couched, contain provisions specifically directed towards
preventing a situation that would unduly embarrass the
employees or place them under a humiliating experience. While
every officer and employee in a private establishment is under the
law deemed forewarned that he or she may be a possible subject
of a drug test, nobody is really singled out in advance for drug
testing. The goal is to discourage drug use by not telling in
advance anyone when and who is to be tested. And as may be
observed, Sec. 36 (d) of RA 9165 itself prescribes what, in Ople, is
a narrowing ingredient by providing that the employees
concerned shall be subjected to "random drug test as contained in
the company's work rules and regulations . . . for purposes of
reducing the risk in the work place."
For another, the random drug testing shall be undertaken under
conditions calculated to protect as much as possible the
employee's privacy and dignity. As to the mechanics of the test,
the law specifies that the procedure shall employ two testing
methods, i.e., the screening test and the confirmatory test,
doubtless to ensure as much as possible the trustworthiness of
the results. But the more important consideration lies in the fact
that the test shall be conducted by trained professionals in access-
controlled laboratories monitored by the Department of Health
(DOH) to safeguard against results tampering and to ensure an
accurate chain of custody. 33 In addition, the IRR issued by the
DOH provides that access to the drug results shall be on the "need
to know" basis; 34 that the "drug test result and the records shall
be [kept] confidential subject to the usual accepted practices to
protect the confidentiality of the test results". 35 Notably, RA
9165 does not oblige the employer concerned to report to the
prosecuting agencies any information or evidence relating to the
violation of the Comprehensive Dangerous Drugs Act received as a
18
result of the operation of the drug testing. All told, therefore, the
intrusion into the employees' privacy, under RA 9165, is
accompanied by proper safeguards, particularly against
embarrassing leakages of test results, and is relatively minimal.
STHAaD
To reiterate, RA 9165 was enacted as a measure to stamp out
illegal drug in the country and thus protect the well-being of the
citizens, especially the youth, from the deleterious effects of
dangerous drugs. The law intends to achieve this through the
medium, among others, of promoting and resolutely pursuing a
national drug abuse policy in the workplace via a mandatory
random drug test. 36 To the Court, the need for drug testing to at
least minimize illegal drug use is substantial enough to override
the individual's privacy interest under the premises. The Court can
consider that the illegal drug menace cuts across gender, age
group, and social-economic lines. And it may not be amiss to state
that the sale, manufacture, or trafficking of illegal drugs, with their
ready market, would be an investor's dream were it not for the
illegal and immoral components of any of such activities. The drug
problem has hardly abated since the martial law public execution
of a notorious drug trafficker. The state can no longer assume a
laid back stance with respect to this modern-day scourge. Drug
enforcement agencies perceive a mandatory random drug test to
be an effective way of preventing and deterring drug use among
employees in private offices, the threat of detection by random
testing being higher than other modes. The Court holds that the
chosen method is a reasonable and enough means to lick the
problem. aSACED
Taking into account the foregoing factors, i.e., the reduced
expectation of privacy on the part of the employees, the
compelling state concern likely to be met by the search, and the
well-defined limits set forth in the law to properly guide
authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of
the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials
and employees also labor under reasonable supervision and
restrictions imposed by the Civil Service law and other laws on
public officers, all enacted to promote a high standard of ethics in
the public service. 37 And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it
should pass the test for civil servants, who, by constitutional
command, are required to be accountable at all times to the
people and to serve them with utmost responsibility and
efficiency. 38
Petitioner SJS' next posture that Sec. 36 of RA 9165 is
objectionable on the ground of undue delegation of power hardly
commends itself for concurrence. Contrary to its position, the
provision in question is not so extensively drawn as to give
unbridled options to schools and employers to determine the
manner of drug testing. Sec. 36 expressly provides how drug
testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be conducted.
It enumerates the persons who shall undergo drug testing. In the
case of students, the testing shall be in accordance with the
school rules as contained in the student handbook and with notice
to parents. On the part of officers/employees, the testing shall
take into account the company's work rules. In either case, the
random procedure shall be observed, meaning that the persons to
be subjected to drug test shall be picked by chance or in an
unplanned way. And in all cases, safeguards against misusing and
compromising the confidentiality of the test results are
established. AaDSTH
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue,
in consultation with the DOH, Department of the Interior and
Local Government, Department of Education, and Department of
Labor and Employment, among other agencies, the IRR necessary
to enforce the law. In net effect then, the participation of schools
and offices in the drug testing scheme shall always be subject to
the IRR of RA 9165. It is, therefore, incorrect to say that schools
and employers have unchecked discretion to determine how
often, under what conditions, and where the drug tests shall be
conducted.
waive their right to privacy. 40 To impose mandatory drug testing
on the accused is a blatant attempt to harness a medical test as a
tool for criminal prosecution, contrary to the stated objectives of
RA 9165. Drug testing in this case would violate a persons' right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse
still, the accused persons are veritably forced to incriminate
themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No.
161658 and declares Sec. 36 (g) of RA 9165 and COMELEC
Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY
GRANT the petition in G.R. Nos. 157870 and 158633 by declaring
Sec. 36 (c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its
Sec. 36 (f) UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec. 36 (f)
and (g) of RA 9165. No costs. aTSEcA
SO ORDERED.

The validity of delegating legislative power is now a quiet area in

the constitutional landscape. 39 In the face of the increasing
complexity of the task of the government and the increasing
inability of the legislature to cope directly with the many problems
demanding its attention, resort to delegation of power, or
entrusting to administrative agencies the power of subordinate
legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36 [c], [d], [f], and [g] of

RA 9165)

Unlike the situation covered by Sec. 36 (c) and (d) of RA 9165, the
Court finds no valid justification for mandatory drug testing for
persons accused of crimes. In the case of students, the
constitutional viability of the mandatory, random, and
suspicionless drug testing for students emanates primarily from
the waiver by the students of their right to privacy when they seek
entry to the school, and from their voluntarily submitting their
persons to the parental authority of school authorities. In the case
of private and public employees, the constitutional soundness of
the mandatory, random, and suspicionless drug testing proceeds
from the reasonableness of the drug test policy and requirement.
EHaCTA

We find the situation entirely different in the case of persons

charged before the public prosecutor's office with criminal
offenses punishable with six (6) years and one (1) day
imprisonment. The operative concepts in the mandatory drug
testing are "randomness" and "suspicionless". In the case of
persons charged with a crime before the prosecutor's office, a
mandatory drug testing can never be random or suspicionless. The
ideas of randomness and being suspicionless are antithetical to
their being made defendants in a criminal complaint. They are not
randomly picked; neither are they beyond suspicion. When
persons suspected of committing a crime are charged, they are
singled out and are impleaded against their will. The persons thus
charged, by the bare fact of being haled before the prosecutor's
office and peaceably submitting themselves to drug testing, if that
be the case, do not necessarily consent to the procedure, let alone

19
 relatively new evidentiary tool. Assailed in this petition are the
Court of Appeals (CA) Decision 1 dated September 25, 2009 and
Resolution dated December 17, 2009. TaCDIc

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to

Establish Illegitimate Filiation (with Motion for the Submission of
Parties to DNA Testing) 2 before the Regional Trial Court (RTC),
Branch 72, Valenzuela City. Petitioner narrated that, sometime in
1967, his mother, Elsie Uy (Elsie), migrated to Manila from Davao
and stayed with a certain "Ate Belen (Belen)" who worked in a
prominent nightspot in Manila. Elsie would oftentimes accompany
Belen to work. On one occasion, Elsie got acquainted with
respondent, Jesus S. Lucas, at Belen's workplace, and an intimate
relationship developed between the two. Elsie eventually got
pregnant and, on March 11, 1969, she gave birth to petitioner,
Jesse U. Lucas. The name of petitioner's father was not stated in
petitioner's certificate of live birth. However, Elsie later on told
petitioner that his father is respondent. On August 1, 1969,
petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay
City. Respondent allegedly extended financial support to Elsie and
petitioner for a period of about two years. When the relationship
of Elsie and respondent ended, Elsie refused to accept
respondent's offer of support and decided to raise petitioner on
her own. While petitioner was growing up, Elsie made several
attempts to introduce petitioner to respondent, but all attempts
were in vain. DCHIAS

Attached to the petition were the following: (a) petitioner's

certificate of live birth; (b) petitioner's baptismal certificate; (c)
petitioner's college diploma, showing that he graduated from
Saint Louis University in Baguio City with a degree in Psychology;
(d) his Certificate of Graduation from the same school; (e)
Certificate of Recognition from the University of the Philippines,
College of Music; and (f) clippings of several articles from different
newspapers about petitioner, as a musical prodigy.

Respondent was not served with a copy of the petition.

Nonetheless, respondent learned of the petition to establish
filiation. His counsel therefore went to the trial court on August
29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear
the Case. Hence, on September 3, 2007, the RTC, finding the
petition to be sufficient in form and substance, issued the Order 3
setting the case for hearing and urging anyone who has any
objection to the petition to file his opposition. The court also
SECOND DIVISION
directed that the Order be published once a week for three
consecutive weeks in any newspaper of general circulation in the
[G.R. No. 190710. June 6, 2011.]
Philippines, and that the Solicitor General be furnished with
JESSE U. LUCAS, petitioner, vs. JESUS S. LUCAS, respondent. copies of the Order and the petition in order that he may appear
and represent the State in the case. cCTAIE
DECISION
On September 4, 2007, unaware of the issuance of the September
NACHURA, J p: 3, 2007 Order, respondent filed a Special Appearance and
Comment. He manifested inter alia that: (1) he did not receive the
Is a prima facie showing necessary before a court can issue a DNA summons and a copy of the petition; (2) the petition was
testing order? In this petition for review on certiorari, we address adversarial in nature and therefore summons should be served on
this question to guide the Bench and the Bar in dealing with a him as respondent; (3) should the court agree that summons was
20
required, he was waiving service of summons and making a
voluntary appearance; and (4) notice by publication of the petition
and the hearing was improper because of the confidentiality of
the subject matter. 4
On September 14, 2007, respondent also filed a Manifestation
and Comment on Petitioner's Very Urgent Motion to Try and Hear
the Case. Respondent reiterated that the petition for recognition
is adversarial in nature; hence, he should be served with
summons. 2005cdasia
After learning of the September 3, 2007 Order, respondent filed a
motion for reconsideration. 5 Respondent averred that the
petition was not in due form and substance because petitioner
could not have personally known the matters that were alleged
therein. He argued that DNA testing cannot be had on the basis of
a mere allegation pointing to respondent as petitioner's father.
Moreover, jurisprudence is still unsettled on the acceptability of
DNA evidence.
On July 30, 2008, the RTC, acting on respondent's motion for
reconsideration, issued an Order 6 dismissing the case. The court
remarked that, based on the case of Herrera v. Alba, 7 there are
four significant procedural aspects of a traditional paternity action
which the parties have to face: a prima facie case, affirmative
defenses, presumption of legitimacy, and physical resemblance
between the putative father and the child. The court opined that
petitioner must first establish these four procedural aspects
before he can present evidence of paternity and filiation, which
may include incriminating acts or scientific evidence like blood
group test and DNA test results. The court observed that the
petition did not show that these procedural aspects were present.
Petitioner failed to establish a prima facie case considering that
(a) his mother did not personally declare that she had sexual
relations with respondent, and petitioner's statement as to what
his mother told him about his father was clearly hearsay; (b) the
certificate of live birth was not signed by respondent; and (c)
although petitioner used the surname of respondent, there was
no allegation that he was treated as the child of respondent by
the latter or his family. The court opined that, having failed to
establish a prima facie case, respondent had no obligation to
present any affirmative defenses. The dispositive portion of the
said Order therefore reads:
WHEREFORE, for failure of the petitioner to establish compliance
with the four procedural aspects of a traditional paternity action
in his petition, his motion for the submission of parties to DNA
testing to establish paternity and filiation is hereby DENIED. This
case is DISMISSED without prejudice. aASEcH
SO ORDERED. 8
Petitioner seasonably filed a motion for reconsideration to the
Order dated July 30, 2008, which the RTC resolved in his favor.
Thus, on October 20, 2008, it issued the Order 9 setting aside the
court's previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30,
2008 is hereby reconsidered and set aside. cITaCS
21
Let the Petition (with Motion for the Submission of Parties to DNA
Testing) be set for hearing on January 22, 2009 at 8:30 in the
morning.
xxx xxx xxx
SO ORDERED. 10
This time, the RTC held that the ruling on the grounds relied upon
by petitioner for filing the petition is premature considering that a
full-blown trial has not yet taken place. The court stressed that
the petition was sufficient in form and substance. It was verified,
it included a certification against forum shopping, and it contained
a plain, concise, and direct statement of the ultimate facts on
which petitioner relies on for his claim, in accordance with Section
1, Rule 8 of the Rules of Court. The court remarked that the
allegation that the statements in the petition were not of
petitioner's personal knowledge is a matter of evidence. The court
also dismissed respondent's arguments that there is no basis for
the taking of DNA test, and that jurisprudence is still unsettled on
the acceptability of DNA evidence. It noted that the new Rule on
DNA Evidence 11 allows the conduct of DNA testing, whether at
the court's instance or upon application of any person who has
legal interest in the matter in litigation. cCAaHD
Respondent filed a Motion for Reconsideration of Order dated
October 20, 2008 and for Dismissal of Petition, 12 reiterating that
(a) the petition was not in due form and substance as no
defendant was named in the title, and all the basic allegations
were hearsay; and (b) there was no prima facie case, which made
the petition susceptible to dismissal.
The RTC denied the motion in the Order dated January 19, 2009,
and rescheduled the hearing. 13
Aggrieved, respondent filed a petition for certiorari with the CA,
questioning the Orders dated October 20, 2008 and January 19,
2009. DAcSIC
On September 25, 2009, the CA decided the petition for certiorari
in favor of respondent, thus:
WHEREFORE, the instant petition for certiorari is hereby GRANTED
for being meritorious. The assailed Orders dated October 20, 2008
and January 19, 2009 both issued by the Regional Trial Court,
Branch 172 of Valenzuela City in SP. Proceeding Case No. 30-V-07
are REVERSED and SET ASIDE. Accordingly, the case docketed as
SP. Proceeding Case No. 30-V-07 is DISMISSED. 14
The CA held that the RTC did not acquire jurisdiction over the
person of respondent, as no summons had been served on him.
Respondent's special appearance could not be considered as
voluntary appearance because it was filed only for the purpose of
questioning the jurisdiction of the court over respondent.
Although respondent likewise questioned the court's jurisdiction
over the subject matter of the petition, the same is not equivalent
to a waiver of his right to object to the jurisdiction of the court
over his person. HTSIEa
The CA remarked that petitioner filed the petition to establish
illegitimate filiation, specifically seeking a DNA testing order to
abbreviate the proceedings. It noted that petitioner failed to show
that the four significant procedural aspects of a traditional
paternity action had been met. The CA further held that a DNA
testing should not be allowed when the petitioner has failed to
establish a prima facie case, thus:
While the tenor [of Section 4, Rule on DNA Evidence] appears to
be absolute, the rule could not really have been intended to
trample on the substantive rights of the parties. It could have not
meant to be an instrument to promote disorder, harassment, or
extortion. It could have not been intended to legalize
unwarranted expedition to fish for evidence. Such will be the
situation in this particular case if a court may at any time order
the taking of a DNA test. If the DNA test in compulsory recognition
cases is immediately available to the petitioner/complainant
without requiring first the presentation of corroborative proof,
then a dire and absurd rule would result. Such will encourage and
promote harassment and extortion. cDTIAC
xxx xxx xxx
At the risk of being repetitious, the Court would like to stress that
it sees the danger of allowing an absolute DNA testing to a
compulsory recognition test even if the plaintiff/petitioner failed
to establish prima facie proof. . . . If at anytime, motu proprio and
without pre-conditions, the court can indeed order the taking of
DNA test in compulsory recognition cases, then the prominent
and well-to-do members of our society will be easy prey for
opportunists and extortionists. For no cause at all, or even for [sic]
casual sexual indiscretions in their younger years could be used as
a means to harass them. Unscrupulous women, unsure of the
paternity of their children may just be taking the chances-just in
case-by pointing to a sexual partner in a long past one-time
encounter. Indeed an absolute and unconditional taking of DNA
test for compulsory recognition case opens wide the opportunities
for extortionist to prey on victims who have no stomach for
scandal. 15
Petitioner moved for reconsideration. On December 17, 2009, the
CA denied the motion for lack of merit. 16
In this petition for review on certiorari, petitioner raises the
following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE
PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER
RAISED IN THE PETITION FOR CERTIORARI. HCaDET
I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
RULED THAT JURISDICTION WAS NOT ACQUIRED OVER THE
PERSON OF THE RESPONDENT.
I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
FAILED TO REALIZE THAT THE RESPONDENT HAD ALREADY
22
SUBMITTED VOLUNTARILY TO THE JURISDICTION OF THE COURT A
QUO. AIaDcH
I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
ESSENTIALLY RULED THAT THE TITLE OF A PLEADING, RATHER
THAN ITS BODY, IS CONTROLLING.
II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE
MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO)
FOR THE CONDUCT OF DNA TESTING. AaDSEC
II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE ORDERED
AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF
FILIATION.
III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS
MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA,
ESPECIALLY AS REGARDS THE 'FOUR SIGNIFICANT PROCEDURAL
ASPECTS OF A TRADITIONAL PATERNITY ACTION.' 17
Petitioner contends that respondent never raised as issue in his
petition for certiorari the court's lack of jurisdiction over his
person. Hence, the CA had no legal basis to discuss the same,
because issues not raised are deemed waived or abandoned. At
any rate, respondent had already voluntarily submitted to the
jurisdiction of the trial court by his filing of several motions asking
for affirmative relief, such as the (a) Motion for Reconsideration of
the Order dated September 3, 2007; (b) Ex Parte Motion to
Resolve Motion for Reconsideration of the Order dated November
6, 2007; and (c) Motion for Reconsideration of the Order dated
October 20, 2008 and for Dismissal of Petition. Petitioner points
out that respondent even expressly admitted that he has waived
his right to summons in his Manifestation and Comment on
Petitioner's Very Urgent Motion to Try and Hear the Case. Hence,
the issue is already moot and academic. IaECcH
Petitioner argues that the case was adversarial in nature.
Although the caption of the petition does not state respondent's
name, the body of the petition clearly indicates his name and his
known address. He maintains that the body of the petition is
controlling and not the caption.
Finally, petitioner asserts that the motion for DNA testing should
not be a reason for the dismissal of the petition since it is not a
legal ground for the dismissal of cases. If the CA entertained any
doubt as to the propriety of DNA testing, it should have simply
denied the motion. 18 Petitioner points out that Section 4 of the
Rule on DNA Evidence does not require that there must be a prior
proof of filiation before DNA testing can be ordered. He adds that
the CA erroneously relied on the four significant procedural
aspects of a paternity case, as enunciated in Herrera v. Alba. 19
Petitioner avers that these procedural aspects are not applicable
at this point of the proceedings because they are matters of
evidence that should be taken up during the trial. 20
In his Comment, respondent supports the CA's ruling on most
issues raised in the petition for certiorari and merely reiterates his
previous arguments. However, on the issue of lack of jurisdiction,
respondent counters that, contrary to petitioner's assertion, he
raised the issue before the CA in relation to his claim that the
petition was not in due form and substance. Respondent denies
that he waived his right to the service of summons. He insists that
the alleged waiver and voluntary appearance was conditional
upon a finding by the court that summons is indeed required. He
avers that the assertion of affirmative defenses, aside from lack of
jurisdiction over the person of the defendant, cannot be
considered as waiver of the defense of lack of jurisdiction over
such person. cTEICD
The petition is meritorious.
Primarily, we emphasize that the assailed Orders of the trial court
were orders denying respondent's motion to dismiss the petition
for illegitimate filiation. An order denying a motion to dismiss is an
interlocutory order which neither terminates nor finally disposes
of a case, as it leaves something to be done by the court before
the case is finally decided on the merits. As such, the general rule
is that the denial of a motion to dismiss cannot be questioned in a
special civil action for certiorari, which is a remedy designed to
correct errors of jurisdiction and not errors of judgment. Neither
can a denial of a motion to dismiss be the subject of an appeal
unless and until a final judgment or order is rendered. In a number
of cases, the court has granted the extraordinary remedy of
certiorari on the denial of the motion to dismiss but only when it
has been tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction. 21 In the present case, we discern no
grave abuse of discretion on the part of the trial court in denying
the motion to dismiss. ACaEcH
The grounds for dismissal relied upon by respondent were (a) the
court's lack of jurisdiction over his person due to the absence of
summons, and (b) defect in the form and substance of the petition
to establish illegitimate filiation, which is equivalent to failure to
state a cause of action.
We need not belabor the issues on whether lack of jurisdiction
was raised before the CA, whether the court acquired jurisdiction
over the person of respondent, or whether respondent waived his
right to the service of summons. We find that the primordial issue
here is actually whether it was necessary, in the first place, to
serve summons on respondent for the court to acquire jurisdiction
over the case. In other words, was the service of summons
jurisdictional? The answer to this question depends on the nature
of petitioner's action, that is, whether it is an action in personam,
in rem, or quasi in rem.
An action in personam is lodged against a person based on
personal liability; an action in rem is directed against the thing
itself instead of the person; while an action quasi in rem names a
person as defendant, but its object is to subject that person's
interest in a property to a corresponding lien or obligation. A
23
petition directed against the "thing" itself or the res, which
concerns the status of a person, like a petition for adoption,
annulment of marriage, or correction of entries in the birth
certificate, is an action in rem. 22
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the
case. In a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction
on the court, provided that the latter has jurisdiction over the res.
Jurisdiction over the res is acquired either (a) by the seizure of the
property under legal process, whereby it is brought into actual
custody of the law, or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and
made effective. 23
The herein petition to establish illegitimate filiation is an action in
rem. By the simple filing of the petition to establish illegitimate
filiation before the RTC, which undoubtedly had jurisdiction over
the subject matter of the petition, the latter thereby acquired
jurisdiction over the case. An in rem proceeding is validated
essentially through publication. Publication is notice to the whole
world that the proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any sort to the
right sought to be established. 24 Through publication, all
interested parties are deemed notified of the petition. AaCcST
If at all, service of summons or notice is made to the defendant, it
is not for the purpose of vesting the court with jurisdiction, but
merely for satisfying the due process requirements. 25 This is but
proper in order to afford the person concerned the opportunity to
protect his interest if he so chooses. 26 Hence, failure to serve
summons will not deprive the court of its jurisdiction to try and
decide the case. In such a case, the lack of summons may be
excused where it is determined that the adverse party had, in fact,
the opportunity to file his opposition, as in this case. We find that
the due process requirement with respect to respondent has been
satisfied, considering that he has participated in the proceedings
in this case and he has the opportunity to file his opposition to the
petition to establish filiation.
To address respondent's contention that the petition should have
been adversarial in form, we further hold that the herein petition
to establish filiation was sufficient in form. It was indeed
adversarial in nature despite its caption which lacked the name of
a defendant, the failure to implead respondent as defendant, and
the non-service of summons upon respondent. A proceeding is
adversarial where the party seeking relief has given legal warning
to the other party and afforded the latter an opportunity to
contest it. 27 In this petition — classified as an action in rem —
the notice requirement for an adversarial proceeding was likewise
satisfied by the publication of the petition and the giving of notice
to the Solicitor General, as directed by the trial court.
The petition to establish filiation is sufficient in substance. It
satisfies Section 1, Rule 8 of the Rules of Court, which requires the
complaint to contain a plain, concise, and direct statement of the
ultimate facts upon which the plaintiff bases his claim. A fact is
essential if it cannot be stricken out without leaving the statement
of the cause of action inadequate. 28 A complaint states a cause
of action when it contains the following elements: (1) the legal
right of plaintiff, (2) the correlative obligation of the defendant,
and (3) the act or omission of the defendant in violation of said
legal right. 29
The petition sufficiently states the ultimate facts relied upon by
petitioner to establish his filiation to respondent. Respondent,
however, contends that the allegations in the petition were
hearsay as they were not of petitioner's personal knowledge. Such
matter is clearly a matter of evidence that cannot be determined
at this point but only during the trial when petitioner presents his
evidence. CSHcDT
In a motion to dismiss a complaint based on lack of cause of
action, the question submitted to the court for determination is
the sufficiency of the allegations made in the complaint to
constitute a cause of action and not whether those allegations of
fact are true, for said motion must hypothetically admit the truth
of the facts alleged in the complaint. 30 The inquiry is confined to
the four corners of the complaint, and no other. 31 The test of the
sufficiency of the facts alleged in the complaint is whether or not,
admitting the facts alleged, the court could render a valid
judgment upon the same in accordance with the prayer of the
complaint. 32
If the allegations of the complaint are sufficient in form and
substance but their veracity and correctness are assailed, it is
incumbent upon the court to deny the motion to dismiss and
require the defendant to answer and go to trial to prove his
defense. The veracity of the assertions of the parties can be
ascertained at the trial of the case on the merits. 33
The statement in Herrera v. Alba 34 that there are four significant
procedural aspects in a traditional paternity case which parties
have to face has been widely misunderstood and misapplied in
this case. A party is confronted by these so-called procedural
aspects during trial, when the parties have presented their
respective evidence. They are matters of evidence that cannot be
determined at this initial stage of the proceedings, when only the
petition to establish filiation has been filed. The CA's observation
that petitioner failed to establish a prima facie case — the first
procedural aspect in a paternity case — is therefore misplaced. A
prima facie case is built by a party's evidence and not by mere
allegations in the initiatory pleading. ACETIa
Clearly then, it was also not the opportune time to discuss the lack
of a prima facie case vis-à-vis the motion for DNA testing since no
evidence has, as yet, been presented by petitioner. More
essentially, it is premature to discuss whether, under the
circumstances, a DNA testing order is warranted considering that
no such order has yet been issued by the trial court. In fact, the
latter has just set the said case for hearing.
At any rate, the CA's view that it would be dangerous to allow a
DNA testing without corroborative proof is well taken and
deserves the Court's attention. In light of this observation, we find
that there is a need to supplement the Rule on DNA Evidence to
aid the courts in resolving motions for DNA testing order,
particularly in paternity and other filiation cases. We, thus,
24
address the question of whether a prima facie showing is
necessary before a court can issue a DNA testing order. CSaHDT
The Rule on DNA Evidence was enacted to guide the Bench and
the Bar for the introduction and use of DNA evidence in the
judicial system. It provides the "prescribed parameters on the
requisite elements for reliability and validity (i.e., the proper
procedures, protocols, necessary laboratory reports, etc.), the
possible sources of error, the available objections to the
admission of DNA test results as evidence as well as the probative
value of DNA evidence." It seeks "to ensure that the evidence
gathered, using various methods of DNA analysis, is utilized
effectively and properly, [and] shall not be misused and/or abused
and, more importantly, shall continue to ensure that DNA analysis
serves justice and protects, rather than prejudice the public." 35
Not surprisingly, Section 4 of the Rule on DNA Evidence merely
provides for conditions that are aimed to safeguard the accuracy
and integrity of the DNA testing. Section 4 states:
SEC. 4. Application for DNA Testing Order. — The appropriate
court may, at any time, either motu proprio or on application of
any person who has a legal interest in the matter in litigation,
order a DNA testing. Such order shall issue after due hearing and
notice to the parties upon a showing of the following: DAEcIS
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected
to the type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require
confirmation for good reasons; HCSEIT
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce
new information that is relevant to the proper resolution of the
case; and
(e) The existence of other factors, if any, which the court
may consider as potentially affecting the accuracy or integrity of
the DNA testing. cSTHAC
This Rule shall not preclude a DNA testing, without need of a prior
court order, at the behest of any party, including law enforcement
agencies, before a suit or proceeding is commenced.
This does not mean, however, that a DNA testing order will be
issued as a matter of right if, during the hearing, the said
conditions are established.
In some states, to warrant the issuance of the DNA testing order,
there must be a show cause hearing wherein the applicant must
first present sufficient evidence to establish a prima facie case or a
reasonable possibility of paternity or "good cause" for the holding
of the test. 36 In these states, a court order for blood testing is
considered a "search," which, under their Constitutions (as in
ours), must be preceded by a finding of probable cause in order to
be valid. Hence, the requirement of a prima facie case, or
reasonable possibility, was imposed in civil actions as a
counterpart of a finding of probable cause. The Supreme Court of
Louisiana eloquently explained —
Although a paternity action is civil, not criminal, the constitutional
prohibition against unreasonable searches and seizures is still
applicable, and a proper showing of sufficient justification under
the particular factual circumstances of the case must be made
before a court may order a compulsory blood test. Courts in
various jurisdictions have differed regarding the kind of
procedures which are required, but those jurisdictions have
almost universally found that a preliminary showing must be
made before a court can constitutionally order compulsory blood
testing in paternity cases. We agree, and find that, as a
preliminary matter, before the court may issue an order for
compulsory blood testing, the moving party must show that there
is a reasonable possibility of paternity. As explained hereafter, in
cases in which paternity is contested and a party to the action
refuses to voluntarily undergo a blood test, a show cause hearing
must be held in which the court can determine whether there is
sufficient evidence to establish a prima facie case which warrants
issuance of a court order for blood testing. 37
The same condition precedent should be applied in our
jurisdiction to protect the putative father from mere harassment
suits. Thus, during the hearing on the motion for DNA testing, the
petitioner must present prima facie evidence or establish a
reasonable possibility of paternity. CTacSE
Notwithstanding these, it should be stressed that the issuance of a
DNA testing order remains discretionary upon the court. The court
may, for example, consider whether there is absolute necessity
for the DNA testing. If there is already preponderance of evidence
to establish paternity and the DNA test result would only be
corroborative, the court may, in its discretion, disallow a DNA
testing.
WHEREFORE, premises considered, the petition is GRANTED. The
Court of Appeals Decision dated September 25, 2009 and
Resolution dated December 17, 2009 are REVERSED and SET
ASIDE. The Orders dated October 20, 2008 and January 19, 2009
of the Regional Trial Court of Valenzuela City are AFFIRMED.
HCTAEc
SO ORDERED.
SECOND DIVISION
25
[G.R. No. 205821. October 1, 2014.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GARRY DELA
CRUZ y DE GUZMAN, accused-appellant.
DECISION
LEONEN, J p:
"Law enforcers should not trifle with the legal requirement to
ensure integrity in the chain of custody of seized dangerous drugs
and drug paraphernalia. This is especially true when only a
miniscule amount of dangerous drugs is alleged to have been
taken from the accused." 1 TIaDHE
This resolves an appeal from a conviction for violation of Sections
5 and 11 of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002.
On September 15, 2004, accused-appellant Garry dela Cruz (dela
Cruz) was charged with illegal sale and illegal possession of
dangerous drugs in two separate informations, 2 as follows:
Criminal Case No. 5450 (20920)
VIOLATION OF SECTION 5, A[R]TICLE (sic) II K OF THE
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
(REPUBLIC ACT NO. 9165)
That on or about September 14, 2004, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, not being authorized by law to sell,
deliver, transport, distribute or give away to another any
dangerous drugs, did then and there wilfully, unlawfully and
feloniously, SELL AND DELIVER to PO1 WILFREDO BOBON y
TARROZA, a member of the PNP, who acted as buyer, one (1)
small heat-sealed transparent plastic pack containing white
crystalline substance having a total weight of 0.0120 gram which
when subjected to qualitative examination gave positive result to
the tests for the presence of METHAMPHETAMINE
HYDROCHLORIDE (shabu) knowing the same to be a dangerous
drug. HSIDTE
CONTRARY TO LAW.
Criminal Case No. 5451 (20921)
VIOLATION OF SECTION 11, ARTICLE II OF THE
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
(REPUBLIC ACT NO. 9165)
That on or about September 14, 2004, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, not being authorized by law, did then
and there wilfully, unlawfully and feloniously, have in his
possession and under his custody and control six (6) pieces heat-
sealed transparent plastic sachets each containing white
crystalline substance, each weighing as follows: 1) 0.0135 gram; 2)
0.0183 gram; 3) 0.0542 gram; 4) 0.0197 gram; 5) 0.0100 [gram];
and 6) 0.0128 gram or a total of 0.1285 gram; which when
subjected to qualitative examination gave positive result to the
tests for Methamphetamine Hydrochloride (shabu) knowing same
to be a dangerous drug.
CONTRARY TO LAW. 3 (Citations omitted) HAEDCT
As alleged by the prosecution, dela Cruz was arrested in a buy-
bust operation. The buy-bust operation was allegedly conducted
after a civilian informant (the informant) tipped the Zamboanga
City Police Office that a certain "Gary" was selling illegal drugs at
the parking area for buses behind Food Mart, Governor Lim
Street, Sangali, Bunguioa, Zamboanga City (the target area). 4
The buy-bust operation team included PO1 Wilfredo Bobon (PO1
Bobon), as poseur-buyer, and SPO1 Roberto Roca (SPO1 Roca), as
back-up arresting officer. It was agreed that "PO1 Bobon would
remove his bull cap once the sale of illegal drugs was
[consummated]." The buy-bust team prepared a PhP100.00 bill
with serial number KM 776896 as marked money. 5
At around 11:00 a.m. of September 14, 2004, the buy-bust
operation team, accompanied by the informant, went to the
target area. The informant initially brokered the sale of shabu. It
was PO1 Bobon who handed the marked money to dela Cruz in
exchange for one (1) heat-sealed plastic sachet of suspected
shabu. After which, he removed his bull cap. SPO1 Roca then
arrested dela Cruz. 6 TacESD
Upon frisking dela Cruz, PO1 Bobon supposedly recovered six (6)
more heat-sealed sachets of suspected shabu. PO1 Bobon placed
the sachet he purchased from dela Cruz in his right pocket and the
six (6) other sachets in his left pocket. SPO1 Roca recovered the
marked PhP100.00 bill. 7
Dela Cruz and the seven (7) sachets seized from him were then
brought to the Zamboanga City Police Station. 8 There, PO1 Bobon
taped the sachets. He then marked the sachet from his right
pocket with his initials, "WB." 9 He marked the sachets from his
left pocket as "WB-1," "WB-2," "WB-3," "WB-4," "WB-5," and
"WB-6." 10
On the same day, the seven (7) sachets were turned over to SPO1
Federico Lindo, Jr., the investigating officer, who prepared the
request for laboratory examination. Subsequently, the tests
yielded positive results for shabu. 11
During trial, the prosecution presented as witnesses PO1 Bobon,
SPO1 Roca, and forensic chemist Police Inspector Melvin L.
Manuel. The sole witness presented for the defense was dela Cruz
himself. 12 AcICTS
For his part, dela Cruz acknowledged that on the morning of
September 14, 2004, he was in the target area. As he was leaving
the comfort room, someone embraced him from behind, while
another poked a gun at him. He was then handcuffed and brought
to an L-300 van which was parked in front of Food Mart. Inside the
van, he was asked if he was Jing-Jong, alias Jong-Jong. Despite his
denials, he was brought to the police station. It was when he was
26
already detained that he learned that he was charged for violation
of the Comprehensive Dangerous Drugs Act of 2002. 13
On August 19, 2010, the Regional Trial Court, Branch 13,
Zamboanga City, convicted dela Cruz for violating Article II,
Section 5 of the Comprehensive Dangerous Drugs Act of 2002 and
sentenced him to life imprisonment and a fine of PhP500,000.00.
He was also convicted for violating Article II, Section 11 of the
Comprehensive Dangerous Drugs Act of 2002 and sentenced to 12
years and one day up to 14 years imprisonment and a fine of
PhP300,000.00. The dispositive portion of this decision reads:
WHEREFORE, this Court finds:
1. In Criminal Case No. 5450 (20920), accused GARRY DELA
CRUZ y DE GUZMAN guilty beyond reasonable doubt for violating
Section 5, Article II of R.A. 9165 and sentences him to suffer the
penalty of LIFE IMPRISONMENT and to pay a fine of FIVE
HUNDRED THOUSAND PESOS (P500,000) without subsidiary
imprisonment in case of insolvency;
2. In Criminal Case No. 5451 (20921), accused GARRY DELA
CRUZ y DE GUZMAN guilty beyond reasonable doubt for violating
Section 11, Article II of R.A. 9165 and sentences him to suffer the
penalty of TWELVE YEARS AND ONE DAY to FOURTEEN YEARS of
imprisonment and pay a fine of THREE HUNDRED THOUSAND
PESOS (P300,000) without subsidiary imprisonment in case of
insolvency.
The methamphetamine hydrochloride used as evidence in these
cases are hereby ordered confiscated to be turned over to the
proper authorities for disposition.
SO ORDERED. 14 AEDHST
On appeal to the Court of Appeals, dela Cruz assailed the
prosecution's failure to establish the chain of custody of the
seized sachets of shabu. He also assailed the validity of the buy-
bust operation and the prosecution's failure to present the
informant in court. 15
On May 31, 2012, the Court of Appeals rendered a decision 16
affirming dela Cruz' conviction in toto. Thereafter, dela Cruz filed
his notice of appeal. 17
In the resolution 18 dated April 15, 2013, this court noted the
records forwarded by the Court of Appeals and informed the
parties that they may file their supplemental briefs.
On June 6, 2013, the Office of the Solicitor General filed a
manifestation and motion, 19 on behalf of the People of the
Philippines, noting that it would no longer file a supplemental
brief as the brief it filed with the Court of Appeals had adequately
addressed the arguments and issues raised by dela Cruz.
On August 7, 2013, dela Cruz filed a manifestation 20 indicating
that he, too, would no longer file a supplemental brief and that he
was instead re-pleading, adopting, and reiterating the defenses
and arguments in the brief he filed before the Court of Appeals.
For resolution is the issue of whether dela Cruz's guilt beyond
reasonable doubt for violating Sections 5 and 11 of the
Comprehensive Dangerous Drugs Act of 2002 was established.
Subsumed in the resolution of this issue are the issues raised by
dela Cruz in the brief he filed with the Court of Appeals, foremost
of which is whether the prosecution was able to establish
compliance with the chain of custody requirements under Section
21 of the Comprehensive Dangerous Drugs Act of 2002.
The elements that must be established to sustain convictions for
illegal sale and illegal possession of dangerous drugs are settled:
In actions involving the illegal sale of dangerous drugs, the
following elements must first be established: (1) proof that the
transaction or sale took place and (2) the presentation in court of
the corpus delicti or the illicit drug as evidence. acHDTE
On the other hand, in prosecutions for illegal possession of a
dangerous drug, it must be shown that (1) the accused was in
possession of an item or an object identified to be a prohibited or
regulated drug, (2) such possession is not authorized by law, and
(3) the accused was freely and consciously aware of being in
possession of the drug. Similarly, in this case, the evidence of the
corpus delicti must be established beyond reasonable doubt. 21
With respect to the element of corpus delicti, Section 21 of the
Comprehensive Dangerous Drugs Act of 2002, as amended by
Republic Act No. 10640 provides for the custody and disposition of
confiscated, seized, and/or surrendered drugs and/or drug
paraphernalia. Particularly on the matter of custody before a
criminal case is filed, Section 21, as amended, provides:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(1) The apprehending team having initial custody and
control of the dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory
equipment shall, immediately after seizure and confiscation,
conduct a physical inventory of the seized items and photograph
the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official and a
representative of the National Prosecution Service or the media
who shall be required to sign the copies of the inventory and be
given a copy thereof: Provided, That the physical inventory and
photograph shall be conducted at the place where the search
warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable,
in case of warrantless seizures: Provided, finally, That
noncompliance of these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending officer/team,
27
shall not render void and invalid such seizures and custody over
said items. TAScID
(2) Within twenty-four (24) hours upon confiscation/seizure
of dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the
same shall be submitted to the PDEA Forensic Laboratory for a
qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination
results, which shall be done by the forensic laboratory examiner,
shall be issued immediately upon the receipt of the subject
item/s: Provided, That when the volume of dangerous drugs, plant
sources of dangerous drugs, and controlled precursors and
essential chemicals does not allow the completion of testing
within the time frame, a partial laboratory examination report
shall be provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic laboratory:
Provided, however, That a final certification shall be issued
immediately upon completion of the said examination and
certification;
xxx xxx xxx
The significance of complying with Section 21's requirements
cannot be overemphasized. Non-compliance is tantamount to
failure in establishing identity of corpus delicti, an essential
element of the offenses of illegal sale and illegal possession of
dangerous drugs. By failing to establish an element of these
offenses, non-compliance will, thus, engender the acquittal of an
accused.
We reiterate the extensive discussion on this matter from our
recent decision in People v. Holgado: 22
As this court declared in People v. Morales, "failure to comply
with Paragraph 1, Section 21, Article II of RA 9165 implie[s] a
concomitant failure on the part of the prosecution to establish the
identity of the corpus delicti." 23 It "produce[s] doubts as to the
origins of the [seized paraphernalia]." 24
The significance of ensuring the integrity of drugs and drug
paraphernalia in prosecutions under Republic Act No. 9165 is
discussed in People v. Belocura: 25 cAHIaE
Worse, the Prosecution failed to establish the identity of the
prohibited drug that constituted the corpus delicti itself. The
omission naturally raises grave doubt about any search being
actually conducted and warrants the suspicion that the prohibited
drugs were planted evidence.
In every criminal prosecution for possession of illegal drugs, the
Prosecution must account for the custody of the incriminating
evidence from the moment of seizure and confiscation until the
moment it is offered in evidence. That account goes to the weight
of evidence. It is not enough that the evidence offered has
probative value on the issues, for the evidence must also be
sufficiently connected to and tied with the facts in issue. The
evidence is not relevant merely because it is available but that it
has an actual connection with the transaction involved and with
the parties thereto. This is the reason why authentication and
laying a foundation for the introduction of evidence are
important. 26 (Emphasis supplied)
In Malilin v. People, 27 this court explained that the exactitude
required by Section 21 goes into the very nature of narcotics as
the subject of prosecutions under Republic Act No. 9165:
Indeed, the likelihood of tampering, loss or mistake with respect
to an exhibit is greatest when the exhibit is small and is one that
has physical characteristics fungible in nature and similar in form
to substances familiar to people in their daily lives. Graham vs.
State positively acknowledged this danger. In that case where a
substance later analyzed as heroin — was handled by two police
officers prior to examination who however did not testify in court
on the condition and whereabouts of the exhibit at the time it was
in their possession — was excluded from the prosecution
evidence, the court pointing out that the white powder seized
could have been indeed heroin or it could have been sugar or
baking powder. It ruled that unless the state can show by records
or testimony, the continuous whereabouts of the exhibit at least
between the time it came into the possession of police officers
until it was tested in the laboratory to determine its composition,
testimony of the state as to the laboratory's findings is
inadmissible. ICaDHT
A unique characteristic of narcotic substances is that they are not
readily identifiable as in fact they are subject to scientific analysis
to determine their composition and nature. The Court cannot
reluctantly close its eyes to the likelihood, or at least the
possibility, that at any of the links in the chain of custody over the
same there could have been tampering, alteration or substitution
of substances from other cases — by accident or otherwise — in
which similar evidence was seized or in which similar evidence
was submitted for laboratory testing. Hence, in authenticating the
same, a standard more stringent than that applied to cases
involving objects which are readily identifiable must be applied, a
more exacting standard that entails a chain of custody of the item
with sufficient completeness if only to render it improbable that
the original item has either been exchanged with another or been
contaminated or tampered with. 28 (Emphasis supplied)
Compliance with the chain of custody requirement provided by
Section 21, therefore, ensures the integrity of confiscated, seized,
and/or surrendered drugs and/or drug paraphernalia in four (4)
respects: first, the nature of the substances or items seized;
second, the quantity (e.g., weight) of the substances or items
seized; third, the relation of the substances or items seized to the
incident allegedly causing their seizure; and fourth, the relation of
the substances or items seized to the person/s alleged to have
been in possession of or peddling them. Compliance with this
requirement forecloses opportunities for planting, contaminating,
or tampering of evidence in any manner.
By failing to establish identity of corpus delicti, non-compliance
with Section 21 indicates a failure to establish an element of the
offense of illegal sale of dangerous drugs. It follows that this non-
28
compliance suffices as a ground for acquittal. As this court stated
in People v. Lorenzo: 29 EHcaAI
In both illegal sale and illegal possession of prohibited drugs,
conviction cannot be sustained if there is a persistent doubt on
the identity of the drug. The identity of the prohibited drug must
be established with moral certainty. Apart from showing that the
elements of possession or sale are present, the fact that the
substance illegally possessed and sold in the first place is the same
substance offered in court as exhibit must likewise be established
with the same degree of certitude as that needed to sustain a
guilty verdict. 30 (Emphasis supplied)
The prosecution's sweeping guarantees as to the identity and
integrity of seized drugs and drug paraphernalia will not secure a
conviction. Not even the presumption of regularity in the
performance of official duties will suffice. In fact, whatever
presumption there is as to the regularity of the manner by which
officers took and maintained custody of the seized items is
"negated." 31 Republic Act No. 9165 requires compliance with
Section 21.
Even the doing of acts which ostensibly approximate compliance
but do not actually comply with the requirements of Section 21
does not suffice. In People v. Magat, 32 for instance, this court
had occasion to emphasize the inadequacy of merely marking the
items supposedly seized: "Marking of the seized drugs alone by
the law enforcers is not enough to comply with the clear and
unequivocal procedures prescribed in Section 21 of R.A. No.
9165." 33
The exactitude which the state requires in handling seized
narcotics and drug paraphernalia is bolstered by the amendments
made to Section 21 by Republic Act No. 10640. Section 21(1), as
amended, now includes the following proviso, thereby making it
even more stringent than as originally worded:
Provided, That the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at
the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
warrantless seizures:
In People v. Nandi, 34 this court explained that four (4) links
"should be established in the chain of custody of the confiscated
item: first, the seizure and marking, if practicable, of the illegal
drug recovered from the accused by the apprehending officer;
second, the turnover of the illegal drug seized by the
apprehending officer to the investigating officer; third, the
turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and fourth, the
turnover and submission of the marked illegal drug seized from
the forensic chemist to the court." 35
In Nandi, where the prosecution failed to show how the seized
items were handled following the actual seizure and, thereafter,
turned over for examination, this court held that the accused
must be acquitted:
After a closer look, the Court finds that the linkages in the chain of
custody of the subject item were not clearly established. As can be
gleaned from his forequoted testimony, PO1 Collado failed to
provide informative details on how the subject shabu was handled
immediately after the seizure. He just claimed that the item was
handed to him by the accused in the course of the transaction
and, thereafter, he handed it to the investigator. AECacT
There is no evidence either on how the item was stored,
preserved, labeled, and recorded. PO1 Collado could not even
provide the court with the name of the investigator. He admitted
that he was not present when it was delivered to the crime
laboratory. It was Forensic Chemist Bernardino M. Banac, Jr. who
identified the person who delivered the specimen to the crime
laboratory. He disclosed that he received the specimen from one
PO1 Cuadra, who was not even a member of the buy-bust team.
Per their record, PO1 Cuadra delivered the letter-request with the
attached seized item to the CPD Crime Laboratory Office where a
certain PO2 Semacio recorded it and turned it over to the
Chemistry Section.
In view of the foregoing, the Court is of the considered view that
chain of custody of the illicit drug seized was compromised.
Hence, the presumption of regularity in the performance of duties
cannot be applied in this case.
Given the flagrant procedural lapses the police committed in
handling the seized shabu and the obvious evidentiary gaps in the
chain of its custody, a presumption of regularity in the
performance of duties cannot be made in this case. A
presumption of regularity in the performance of official duty is
made in the context of an existing rule of law or statute
authorizing the performance of an act or duty or prescribing a
procedure in the performance thereof. The presumption applies
when nothing in the record suggests that the law enforcers
deviated from the standard conduct of official duty required by
law; where the official act is irregular on its face, the presumption
cannot arise. In light of the flagrant lapses we noted, the lower
courts were obviously wrong when they relied on the
presumption of regularity in the performance of official duty.
THcaDA
With the chain of custody in serious question, the Court cannot
gloss over the argument of the accused regarding the weight of
the seized drug. The standard procedure is that after the
confiscation of the dangerous substance, it is brought to the crime
laboratory for a series of tests. The result thereof becomes one of
the bases of the charge to be filed. 36 (Citations omitted)
As Holgado emphasized, "[e]ven the doing of acts which
ostensibly approximate compliance but do not actually comply
with the requirements of Section 21 does not suffice." 37 In
People v. Garcia, 38 this court noted that the mere marking of
seized paraphernalia, unsupported by a physical inventory and
taking of photographs, and in the absence of the persons required
by Section 21 to be present, does not suffice:
Thus, other than the markings made by PO1 Garcia and the police
investigator (whose identity was not disclosed), no physical
inventory was ever made, and no photograph of the seized items
29
was taken under the circumstances required by R.A. No. 9165 and
its implementing rules. We observe that while there was
testimony with respect to the marking of the seized items at the
police station, no mention whatsoever was made on whether the
marking had been done in the presence of Ruiz or his
representatives. There was likewise no mention that any
representative from the media and the Department of Justice, or
any elected official had been present during this inventory, or that
any of these people had been required to sign the copies of the
inventory. 39 (Citations omitted)
In this case, the Regional Trial Court acknowledged that no
physical inventory of the seized items was conducted. 40 Similarly,
there is nothing in the records to show that the seized items were
photographed in the manner required by Section 21. Likewise,
none of the persons required by Section 21 to be present (or their
possible substitutes) have been shown to be present.
The Regional Trial Court and the Court of Appeals assert that dela
Cruz must nevertheless be convicted as "it had been clearly
established that the identity of the items were [sic] properly
preserved." 41 They anchor this conclusion on PO1 Bobon's having
supposedly kept the seized sachets in his own pockets: one (1)
sachet in his right pocket and six (6) sachets in his left pocket.
The Court of Appeals reasons: IEHaSc
We found no gap in the prosecution's presentation of the chain of
custody. There was a seizure of seven (7) heat-sealed sachets of
shabu as a result of a valid buy-bust operation. PO1 Bobon and
SPO1 Roca testified how the seizure was conducted. PO1 Bobon
was able to identify the shabu which were involved in the illegal
sale vis-a-vis the one involved in illegal possession because he
knowingly put them in different pockets. The seized drugs were
marked at the police station which was only 200 meters away
from the area where the arrest was made. The identity of these
seized items were secured as PO1 Bobon placed tapes on the
respective heat-sealed sachets of shabu and marked them with his
initials which he later identified in court. 42 (Citation omitted)
The circumstance of PO1 Bobon keeping narcotics in his own
pockets precisely underscores the importance of strictly
complying with Section 21. His subsequent identification in open
court of the items coming out of his own pockets is self-serving.
The prosecution effectively admits that from the moment of the
supposed buy-bust operation until the seized items' turnover for
examination, these items had been in the sole possession of a
police officer. In fact, not only had they been in his possession,
they had been in such close proximity to him that they had been
nowhere else but in his own pockets.
Keeping one of the seized items in his right pocket and the rest in
his left pocket is a doubtful and suspicious way of ensuring the
integrity of the items. Contrary to the Court of Appeals' finding
that PO1 Bobon took the necessary precautions, we find his
actions reckless, if not dubious.
Even without referring to the strict requirements of Section 21,
common sense dictates that a single police officer's act of bodily-
keeping the item(s) which is at the crux of offenses penalized
under the Comprehensive Dangerous Drugs Act of 2002, is fraught
with dangers. One need not engage in a meticulous counter-
checking with the requirements of Section 21 to view with distrust
the items coming out of PO1 Bobon's pockets. That the Regional
Trial Court and the Court of Appeals both failed to see through
this and fell — hook, line, and sinker — for PO1 Bobon's avowals is
mind-boggling.
Moreover, PO1 Bobon did so without even offering the slightest
justification for dispensing with the requirements of Section 21.
CSIDTc
Section 21, paragraph 1, of the Comprehensive Dangerous Drugs
Act of 2002, includes a proviso to the effect that "noncompliance
of (sic) these requirements under justifiable grounds, as long as
the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures and custody over said
items." Plainly, the prosecution has not shown that — on
September 14, 2004, when dela Cruz was arrested and the sachets
supposedly seized and marked — there were "justifiable grounds"
for dispensing with compliance with Section 21. All that the
prosecution has done is insist on its self-serving assertion that the
integrity of the seized sachets has, despite all its lapses,
nevertheless been preserved.
Apart from the blatantly irregular handling by PO1 Bobon of the
seven (7) sachets, it is also admitted that no physical inventory
and taking of photographs in the presence of dela Cruz or of any
of the other persons specified by Section 21 were conducted. 43
As in People v. Garcia, the mere marking of seized paraphernalia,
will not suffice to sustain a conviction in this case.
The miniscule amount of narcotics supposedly seized from dela
Cruz amplifies the doubts on their integrity. In total, the seven (7)
sachets supposedly contained all of 0.1405 gram of shabu. This
quantity is so miniscule it amounts to little more than 7% of the
weight of a five-centavo coin (1.9 grams) or a one-centavo coin
(2.0 grams).
As we have discussed in People v. Holgado:
While the miniscule amount of narcotics seized is by itself not a
ground for acquittal, this circumstance underscores the need for
more exacting compliance with Section 21. In Malilin v. People,
this court said that "the likelihood of tampering, loss or mistake
with respect to an exhibit is greatest when the exhibit is small and
is one that has physical characteristics fungible in nature and
similar in form to substances familiar to people in their daily
lives."
xxx xxx xxx
Trial courts should meticulously consider the factual intricacies of
cases involving violations of Republic Act No. 9165. All details that
factor into an ostensibly uncomplicated and barefaced narrative
must be scrupulously considered. Courts must employ heightened
scrutiny, consistent with the requirement of proof beyond
30
reasonable doubt, in evaluating cases involving miniscule amounts
of drugs. These can be readily planted and tampered. . . . 44
(Citations omitted)
As the integrity of the corpus delicti of the crimes for which dela
Cruz is charged has not been established, it follows that there is
no basis for finding him guilty beyond reasonable doubt. It is
proper that dela Cruz be acquitted.
We close by hearkening to the same words with which we ended
in Holgado:
It is lamentable that while our dockets are clogged with
prosecutions under Republic Act No. 9165 involving small-time
drug users and retailers, we are seriously short of prosecutions
involving the proverbial "big fish." We are swamped with cases
involving small fry who have been arrested for miniscule amounts.
While they are certainly a bane to our society, small retailers are
but low-lying fruits in an exceedingly vast network of drug cartels.
Both law enforcers and prosecutors should realize that the more
effective and efficient strategy is to focus resources more on the
source and true leadership of these nefarious organizations.
Otherwise, all these executive and judicial resources expended to
attempt to convict an accused for 0.05 gram of shabu under
doubtful custodial arrangements will hardly make a dent in the
overall picture. It might in fact be distracting our law enforcers
from their more challenging task: to uproot the causes of this drug
menace. We stand ready to assess cases involving greater
amounts of drugs and the leadership of these cartels. 45
WHEREFORE, premises considered, the decision dated May 31,
2012 of the Court of Appeals in CA-G.R. CR-H.C. No. 00869-MIN is
REVERSED and SET ASIDE. Accused-appellant Garry dela Cruz y de
Guzman is hereby ACQUITTED for failure of the prosecution to
prove his guilt beyond reasonable doubt. He is ordered
immediately RELEASED from detention, unless he is confined for
any other lawful cause.
Let a copy of this decision be furnished the Director of the Bureau
of Corrections, Muntinlupa City, for immediate implementation.
The Director of the Bureau of Corrections is directed to report to
this court within five days from receipt of this decision the action
he has taken. Copies shall also be furnished the Director General
of the Philippine National Police and the Director General of the
Philippine Drugs Enforcement Agency for their information.
TaISEH
The Regional Trial Court is directed to turn over the seized sachets
of shabu to the Dangerous Drugs Board for destruction in
accordance with law.
SO ORDERED.
 FIRST DIVISION

[G.R. No. 113271. October 16, 1997.]

WATEROUS DRUG CORPORATION and MS. EMMA CO,

petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and
ANTONIA MELODIA CATOLICO, respondents.

Atty. D.P. Mercado & Associates for petitioners.

The Solicitor General for respondents.

SYNOPSIS

Catolico filed before the Office of the Labor Arbiter a case for
unfair labor practice, illegal dismissal and illegal suspension
against the petitioner Waterous Drug Corporation. Labor Arbiter
Alex Lopez decided in favor of private respondent, dismissing the
ground of unfair labor practice, but, however, declared the
dismissal and suspension illegal, for failure by petitioners to prove
their allegations against private respondent and to show any
investigation was conducted, and was therefore, dismissed
without just cause and due process. cdasia

On September 30, 1993, the NLRC dismissed petitioner's appeal

for lack of merit, and affirmed the labor arbiter's findings, but with
modification on the dispositive portion of the appealed decision
by deleting the award for illegal suspension as the same was
already included in the computation of the aggregate of the
awards in the amount of P35,401.86. Their motion for
reconsideration having been denied, petitioners filed this special
civil action for certiorari, with the allegations that the NLRC
committed grave abuse of discretion and that due process was
duly accorded to private respondent. In addition, petitioner
further alleged that the Commission gravely erred in applying
Section 3, Article III of the Constitution.

The Supreme Court held that, except as to the third ground, the
instant petition must fail. Concededly, Catolico was denied due
process. Even though he was given an opportunity to explain her
side in writing, no hearing was ever conducted for the proper
investigation of her allegations against private respondent. It
clearly appears that her dismissal was based on hearsay
information. Hearsay evidence carries no probative value.
Catolico's dismissal then was obviously grounded on mere
suspicion, which in no case can justify an employee's dismissal. In
view thereof, the instant petition is dismissed and the challenged
decision and resolution of the NLRC are affirmed. The NLRC's
reason for upholding the Labor Arbiter's decision, i.e., that the
evidence against respondent was inadmissible in evidence for

31
having been obtained in violation of her constitutional rights, was
set aside.
SYLLABUS
1. LABOR AND SOCIAL LEGISLATION; LABOR CODE;
TERMINATION OF EMPLOYMENT; DISMISSAL OF AN EMPLOYEE
BASED ON MERE SUSPICION, NOT VALID; CASE AT BAR. — It is
settled that the burden is on the employer to prove just and valid
cause for dismissing an employee. and its failure to discharge that
burden would result in a finding that the dismissal is unjustified.
Here, WATEROUS proved unequal to the task. It is evident from
the Supervisor's memorandum that Catolico was dismissed
because of an alleged anomalous transaction with YSP.
Unfortunately for petitioners, their evidence does not establish
that there was an overcharge. Control Clerk Eugenio C. Valdez
claims to have discovered Catolico's inappropriate transaction . . .
It clearly appears then that Catolico's dismissal was based on
hearsay information. Estelita Reyes never testified nor executed
an affidavit relative to this case; thus, we have to reject the
statements attributed to her by Valdez. Hearsay evidence carries
no probative value. . . . Catolico's dismissal then was obviously
grounded on mere suspicion, which in no case can justify an
employee's dismissal. Suspicion is not among the valid causes
provided by the Labor Code for the termination of employment;
and even the dismissal of an employee for loss of trust and
confidence must rest on substantial grounds and not on the
employer's arbitrariness, whims, caprices, or suspicion. Besides,
Catolico was not shown to be a managerial employee, to which
class of employees the term "trust and confidence" is restricted.
2. ID.; ID.; ID.; THE FACT THAT AN EMPLOYEE WAS GIVEN
AN OPPORTUNITY TO EXPLAIN HER SIDE, BUT NO HEARING WAS
CONDUCTED, CONSTITUTES DENIAL OF DUE PROCESS; CASE AT
BAR. — Catolico was denied due process. Procedural due process
requires that an employee be apprised of the charge against him,
given reasonable time to answer the charge, allowed ample
opportunity to be heard and defend himself, and assisted by a
representative if the employee so desires. Ample opportunity
connotes every kind of assistance that management must accord
the employee to enable him to prepare adequately for his
defense, including legal representation. In the case at bar,
although Catolico was given an opportunity to explain her side,
she was dismissed from the service in the memorandum of 5
March 1990 issued by her Supervisor after receipt of her letter
and that of her counsel. No hearing was ever conducted after the
issues were joined through said letters. The Supervisor's
memorandum spoke of "evidences [sic] in [WATEROUS]
possession," which were not, however, submitted. What the
"evidences" [sic] other than the sales invoice and the check were,
only the Supervisor knew.
3. ID.; ID.; ID.; AWARD OF SEPARATION PAY IN LIEU OF
REINSTATEMENT, IN THE BEST INTEREST OF THE PARTIES; CASE AT
BAR. — Since it has been determined by the Labor Arbiter that
Catolico's reinstatement would not be to the best interest of the
parties, he correctly awarded separation pay to Catolico.
Separation pay in lieu of reinstatement is computed at one
month's salary for every year of service, In this case, however,
32
Labor Arbiter Lopez computed the separation pay to one-half
month's salary for every year of service. Catolico did not oppose
or raise an objection. As such, we will uphold the award of
separation pay as fixed by the Labor Arbiter.
4. CONSTITUTIONAL LAW; 1987 CONSTITUTION, BILL OF
RIGHTS; DOES NOT PROTECT CITIZENS FROM. UNREASONABLE
SEARCHES AND SEIZURES PERPETRATED BY PRIVATE INDIVIDUALS.
— As regards the constitutional violation upon which the NLRC
anchored its decision, we find no reason to revise the doctrine laid
down in People vs. Marti that the Bill of Rights does not protect
citizens from unreasonable searches and seizures perpetrated by
private individuals. It is not true, as counsel for Catolico claims,
that the citizens have no recourse against such assaults. On the
contrary, and as said counsel admits, such an invasion gives rise to
both criminal and civil liabilities. AEIHCS
DECISION
DAVIDE, JR., J p:
"Nor is he a true Servant [who] buys dear to share in the Profit
with the Seller." 1
This petition for certiorari under Rule 65 of the Rules of Court
seeks to declare private respondent Antonia Melodia Catolico
(hereafter Catolico) not a "true Servant," thereby assailing the 30
September 1993 decision 2 and 2 December 1993 Resolution 3 of
the National Labor Relations Commission (NLRC) in NLRC-NCR CA
No. 005160-93, which sustained the reinstatement and monetary
awards in favor of private respondent 4 and denied the
petitioner's motion for reconsideration. 5
The facts are as follows:
Catolico was hired as a pharmacist by petitioner Waterous Drug
Corporation (hereafter WATEROUS) on 15 August 1988.
On 31 July 1989, Catolico received a memorandum 6 from
WATEROUS Vice President-General Manager Emma R. Co warning
her not to dispense medicine to employees chargeable to the
latter's accounts because the same was a prohibited practice. On
the same date, Co issued another memorandum 7 to Catolico
warning her not to negotiate with suppliers of medicine without
consulting the Purchasing Department, as this would impair the
company's control of purchases and, besides she was not
authorized to deal directly with the suppliers.
As regards the first memorandum, Catolico did not deny her
responsibility but explained that her act was "due to negligence,"
since fellow employee Irene Soliven "obtained the medicines in
bad faith and through misrepresentation when she claimed that
she was given a charge slip by the Admitting Dept." Catolico then
asked the company to look into the fraudulent activities of
Soliven. 8
In a memorandum 9 dated 21 November 1989, WATEROUS
Supervisor Luzviminda E. Bautro warned Catolico against the "rush
delivery of medicines without the proper documents."
On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez
informed Co that he noticed an irregularity involving Catolico and
Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he
described as follows:
. . . A case in point is medicine purchased under our Purchase
Order (P.O.) No. 19045 with YSP Sales Invoice No. 266
representing purchase of ten (10) bottles of Voren tablets at
P384.00 per unit. Previous P.O.'s issued to YSP, Inc. showed that
the price per bottle is P320.00 while P.O. No. 19045 is priced at
P384.00 or an over price of P64.00 per bottle (or total of P640.00).
WDRC paid the amount of P3,840.00 thru MBTC Check No.
222832 dated December 15, 1988, Verification was made to YSP,
Inc. to determine the discrepancy and it was found that the cost
per bottle was indeed overpriced. YSP, Inc. Accounting
Department (Ms. Estelita Reyes) confirmed that the difference
represents refund of jack-up price of ten bottles of Voren tablets
per sales invoice no. 266 as per their check voucher no. 629552
(shown to the undersigned), which was paid to Ms. Catolico
through China Bank check no. 892068 dated November 9, 1989 . .
.
The undersigned talked to Ms. Catolico regarding the check but
she denied having received it and that she is unaware of the
overprice. However, upon conversation with Ms. Saldana, EDRC
Espana Pharmacy Clerk, she confirmed that the check amounting
to P640.00 was actually received by Ms. Catolico. As a matter of
fact, Ms. Catolico even asked Ms. Saldana if she opened the
envelope containing the check but Ms. Saldana answered her
"talagang ganyan, bukas." It appears that the amount in question
(P640.00) had been pocketed by Ms. Catolico. 10 aisadc
Forthwith, in her memorandum 11 dated 31 January 1990, Co
asked Catolico to explain, within twenty-four hours, her side of
the reported irregularity. Catolico asked for additional time to give
her explanation, 12 and she was granted a 48-hour extension from
1 to 3 February 1990. However, on 2 February 1990, she was
informed that effective 6 February 1990 to 7 March 1990, she
would be placed on preventive suspension to protect the interests
of the company. 13
In a letter dated 2 February 1990, Catolico requested access to the
file containing Sales Invoice No. 266 for her to be able to make a
satisfactory explanation. In said letter she protested Saldaña's
invasion of her privacy when Saldaña opened an envelope
addressed to Catolico. 14
In a letter 15 to Co dated 10 February 1990, Catolico, through her
counsel, explained that the check she received from YSP was a
Christmas gift and not a "refund of overprice." She also averred
that the preventive suspension was ill-motivated, as it sprang
from an earlier incident between her and Co's secretary, Irene
Soliven.
On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro,
issued a memorandum 16 notifying Catolico of her termination;
thus:
We received your letter of explanation and your lawyer's letter
dated Feb. 2, 1990 and Feb. 10, 1990 respectively regarding our
33
imposition of preventive suspension on you for acts of dishonesty.
However, said letters failed to rebut the evidences [sic] in our
possession which clearly shows that as a Pharmacist stationed at
Espana Branch, you actually made Purchase Orders at YSP Phils.,
Inc. for 10 bottles of Voren tablets at P384.00/bottle with
previous price of P320.00/bottle only. A check which you received
in the amount of P640.00 actually represents the refund of over
price of said medicines and this was confirmed by Ms. Estelita
Reyes, YSP Phils., Inc. Accounting Department.
Your actuation constitutes an act of dishonesty detrimental to the
interest of the company. Accordingly, you are hereby terminated
effective March 8, 1990.
On 5 May 1990, Catolico filed before the Office of the Labor
Arbiter a complaint for unfair labor practice, illegal dismissal, and
illegal suspension. 17
In his decision 18 of 10 May 1993, Labor Arbiter Alex Arcadio
Lopez found no proof of unfair labor practice against petitioners.
Nevertheless, he decided in favor of Catolico because petitioners
failed to "prove what [they] alleged as complainant's dishonesty,"
and to show that any investigation was conducted. Hence, the
dismissal was without just cause and due process. He thus
declared the dismissal and suspension illegal but disallowed
reinstatement, as it would not be to the best interest of the
parties. Accordingly, he awarded separation pay to Catolico
computed at one-half month's pay for every year of service; back
wages for one year; and the additional sum of P2,000.00 for illegal
suspension "representing 30 days work." Arbiter Lopez computed
the award in favor of Catolico as follows:
30 days Preventive Suspension P2,000.00
Backwages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15
—————
TOTAL AWARD: P35,401.86
—————
Petitioners seasonably appealed from the decision and urged the
NLRC to set it aside because the Labor Arbiter erred in finding that
Catolico was denied due process and that there was no just cause
to terminate her services.
In its decision 19 of 30 September 1993, the NLRC affirmed the
findings of the Labor Arbiter on the ground that petitioners were
not able to prove a just cause for Catolico's dismissal from her
employment. It found that petitioner's evidence consisted only of
the check of P640.00 drawn by YSP in favor of complainant, which
her co-employee saw when the latter opened the envelope. But, it
declared that the check was inadmissible in evidence pursuant to
Sections 2 and 3(1 and 2) of Article III of the Constitution. 20 It
concluded:
With the smoking gun evidence of respondents being rendered
inadmissible, by virtue of the constitutional right invoked by
complainants, respondents' case falls apart as it is bereft of
evidence which cannot be used as a legal basis for complainant's
dismissal.
The NLRC then dismissed the appeal for lack of merit, but
modified the dispositive portion of the appealed decision by
deleting the award for illegal suspension as the same was already
included in the computation of the aggregate of the awards in the
amount of P35,401.86.
Their motion for reconsideration having been denied, petitioners
filed this special civil action for certiorari, which is anchored on
the following grounds:
I. Public respondent committed grave abuse of discretion
in its finding of facts.
II. Due process was duly accorded to private respondent.
III. Public respondent gravely erred in applying Section 3,
Article III of the 1987 Constitution.
As to the first and second grounds, petitioners insist that Catolico
had been receiving "commissions" from YSP, or probably from
other suppliers, and that the check issued to her on 9 November
1989 was not the first or the last. They also maintained that
Catolico occupied a confidential position and that Catolico's
receipt of YSP's check, aggravated by her "propensity to violate
company rules," constituted breach of confidence. And contrary
to the findings of NLRC, Catolico was given ample opportunity to
explain her side of the controversy.
Anent the third ground, petitioners submit that, in light of the
decision in the People v. Marti, 21 the constitutional protection
against unreasonable searches and seizures refers to the
immunity of one's person from interference by government and
cannot be extended to acts committed by private individuals so as
to bring it within the ambit of alleged unlawful intrusion by the
government.
In its Manifestation in Lieu of Comment, the Office of the Solicitor
General (OSG) disagreed with the NLRC's decision, as it was of the
persuasion that (a) the conclusions reached by public respondent
are inconsistent with its findings of fact; and (b) the incident
involving the opening of envelope addressed to private
respondent does not warrant the application of the constitutional
provisions. It observed that Catolico was given "several
opportunities" to explain her side of the check controversy, and
concluded that the opportunities granted her and her subsequent
explanation "satisfy the requirements of just cause and due
process." The OSG was also convinced that Catolico's dismissal
was based on just cause and that Catolico's admission of the
existence of the check, as well as her "lame excuse" that it was
Christmas gift from YSP, constituted substantial evidence of
dishonesty. Finally, the OSG echoed petitioners' argument that
there was no violation of the right of privacy of communication in
this case, 22 adding that petitioner WATEROUS was justified in
opening an envelope from one of its regular suppliers as it could
34
assume that the letter was a business communication in which it
had an interest.
In its Comment which we required to be filed in view of the
adverse stand of the OSG, the NLRC contends that petitioners
miserably failed to proved their claim that it committed grave
abuse of discretion in its findings of fact. It then prays that we
dismiss this petition. cda
In her Comment, Catolico assets that petitioners' evidence is too
"flimsy" to justify her dismissal. The check in issue was given to
her, and she had no duty to turn it over to her employer.
Company rules do not prohibit an employee from accepting gifts
from clients, and there is no indication in the contentious check
that it was meant as a refund for overpriced medicines. Besides,
the check was discovered in violation of the constitutional
provision on the right to privacy and communication; hence, as
correctly held by the NLRC, it was inadmissible in evidence.
Catolico likewise disputes petitioners' claim that the audit report
and her initial response that she never received a check were
sufficient to justify her dismissal. When she denied having
received a check from YSP, she meant that she did not receive any
refund of overprice, consistent with her position that what she
received was a token gift. All that can be gathered from the audit
report is that there was apparently an overcharge, with no basis
to conclude that Catolico pocketed the amount in collusion with
YSP. She thus concluded that her dismissal was based on a mere
suspicion.
Finally, Catolico insists that she could not have breached the trust
and confidence of WATEROUS because, being merely a
pharmacist, she did not handle "confidential information or
sensitive properties." She was doing the task of a saleslady: selling
drugs and making requisitions when supplies were low.
A thorough review of the record leads us to no other conclusion
than that, except as to the third ground, the instant petition must
fail.
Concededly, Catolico was denied due process. Procedural due
process requires that an employee be apprised of the charge
against him, given reasonable time to answer the charge, allowed
amply opportunity to be heard and defend himself, and assisted
by a representative if the employee so desires. 23 Ample
opportunity connotes every kind of assistance that management
must accord the employee to enable him to prepare adequately
for his defense, including legal representation. 24
In the case at bar, although Catolico was given an opportunity to
explain her side, she was dismissed from the service in the
memorandum of 5 March 1990 issued by her Supervisor after
receipt of her letter and that of her counsel. No hearing was ever
conducted after the issues were joined through said letters. The
Supervisor's memorandum spoke of "evidences [sic] in
[WATEROUS] possession," which were not, however, submitted.
What the "evidences" [sic] other than the sales invoice and the
check were, only the Supervisor knew.
Catolico was also unjustly dismissed. It is settled that the burden is
on the employer to prove just and valid cause for dismissing an
employee, and its failure to discharge that burden would result in
a finding that the dismissal is unjustified. 25 Here, WATEROUS
proved unequal to the task.
It is evident from the Supervisor's memorandum that Catolico was
dismissed because of an alleged anomalous transaction with YSP.
Unfortunately for petitioners, their evidence does not establish
that there was an overcharge. Control Clerk Eugenio C. Valdez,
who claims to have discovered Catolico's inappropriate
transaction, stated in his affidavit: 26
4. My findings revealed that on or before the month of July
31, 1989, Ms. Catolico in violation of the [company] procedure,
made an under the table deal with YSP Phils. to supply WDRC
needed medicines like Voren tablets at a jack-up price of P384.00
per bottle of 50 mg. which has a previous price of only P320.00;
5. I verified the matter to YSP Phils. to determine the
discrepancy and I found out that the cost per bottle was indeed
overpriced. The Accounting Department of YSP Phils. through Ms.
Estelita Reyes confirmed that there was really an overprice and
she said that the difference was refunded through their check
voucher no. 629552 which was shown to me and the payee is
Melodia Catolico, through a China Bank Check No. 892068 dated
November 9, 1989.
It clearly appears then that Catolico's dismissal was based on
hearsay information. Estelita Reyes never testified nor executed
an affidavit relative to this case; thus, we have to reject the
statements attributed to her by Valdez. Hearsay evidence carries
no probative value. 27
Besides, it was never shown that petitioners paid for the Voren
tablets. While Valdez informed Co, through the former's
memorandum 28 of 29 January 1990, that WATEROUS paid YSP
P3,840.00 "thru MBTC Check No. 222832," the said check was
never presented in evidence, nor was any receipt from YSP
offered by petitioners. cdrep
Moreover, the two purchase orders for Voren tablets presented
by petitioners do not indicate an overcharge. The purchase order
dated 16 August 1989 29 stated that the Voren tablets cost
P320.00 per box, while the purchase order dated 5 October 1989
30 priced the Voren tablets at P384.00 per bottle. The difference
in price may then be attributed to the different packaging used in
each purchase order.
Assuming that there was an overcharge, the two purchase orders
for the Voren tablets were recommended by Director-MMG Mario
R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved by
Vice President-General Manager Emma R. Co. The purchase
orders were silent as to Catolico's participation in the purchase. If
the price increase was objectionable to petitioners, they or their
officers should have disapproved the transaction. Consequently,
petitioners had no one to blame for their predicament but
themselves. This set of facts emphasizes the exceedingly
incredible situation proposed by petitioners. Despite the
memorandum warning Catolico not to negotiate with suppliers of
35
medicine, there was no proof that she ever transacted, or that she
had the opportunity to transact, with the said suppliers. Again, as
the purchase orders indicate, Catolico was not at all involved in
the sale of the Voren tablets. There was no occasion for Catolico
to initiate, much less benefit from, what Valdez called an "under
the table deal" with YSP.
Catolico's dismissal then was obviously grounded on mere
suspicion, which in no case can justify an employee's dismissal.
Suspicion is not among the valid causes provided by the Labor
Code for the termination of employment; 31 and even the
dismissal of an employee for loss of trust and confidence must
rest on substantial grounds and not on the employer's
arbitrariness, whims, caprices, or suspicion. 32 Besides, Catolico
was not shown to be a managerial employee, to which class of
employees the term "trust and confidence" is restricted. 33
As regards the constitutional violation upon which the NLRC
anchored its decision, we find no reason to revise the doctrine laid
down in People vs. Marti 34 that the Bill of Rights does not protect
citizens from unreasonable searches and seizures perpetrated by
private individuals. It is not true, as counsel for Catolico claims,
that the citizens have no recourse against such assaults. On the
contrary, and as said counsel admits, such an invasion gives rise to
both criminal and civil liabilities.
Finally, since it has been determined by the Labor Arbiter that
Catolico's reinstatement would not be to the best interest of the
parties, he correctly awarded separation pay to Catolico.
Separation pay in lieu of reinstatement is computed at one
month's salary for every year of service. 35 In this case, however,
Labor Arbiter Lopez computed the separation pay at one-half
month's salary for every year of service. Catolico did not oppose
or raise an objection. As such, we will uphold the award of
separation pay as fixed by the Labor Arbiter.
WHEREFORE, the instant petition is hereby DISMISSED and the
challenged decision and resolution of the National Labor Relations
Commission dated 30 September 1993 and 2 December 1993,
respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED,
except as to its reason for upholding the Labor Arbiter's decision,
viz., that the evidence against private respondent was
inadmissible for having been obtained in violation of her
constitutional rights of privacy of communication and against
unreasonable searches and seizures which is hereby set aside.
Costs against petitioners.
SO ORDERED.
 [G.R. No. 107383. February 20, 1996.]

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and

ALFREDO MARTIN, respondents.

Leonides S. Respicio & Associates Law Office for petitioner.

Galileo P. Brion for private respondent.

SYLLABUS

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO PRIVACY OF

COMMUNICATION AND CORRESPONDENCE; 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. — Indeed the documents and papers in question are
inadmissible in evidence. The constitutional injunction declaring
"the privacy of communication and correspondence [to be]
inviolable" is no less applicable simply because it is the wife (who
thinks herself aggrieved by her husband's infidelity) who is the
party against whom the constitutional provision is to be enforced.
The only exception to the prohibition in the Constitution is if there
is a "lawful order [from a] court or when public safety or order
requires otherwise, as prescribed by law." Any violation of this
provision renders the evidence obtained inadmissible "for any
purpose in any proceeding." 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.

DECISION

MENDOZA, J p:

This is a petition to review the decision of the Court of Appeals,

affirming the decision of the Regional Trial Court of Manila
(Branch X) which ordered petitioner to return documents and
papers taken by her from private respondent's clinic without the
latter's knowledge and consent.

36
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo
Martin. On March 26, 1982, petitioner entered the clinic of her
husband, a doctor of medicine, and in the presence of her mother,
a driver and private respondent's secretary, forcibly opened the
drawers and cabinet in her husband's clinic and took 157
documents consisting of private correspondence between Dr.
Martin and his alleged paramours, greeting cards, cancelled
checks, diaries, Dr. Martin's passport, and photographs. The
documents and papers were seized for use in evidence in a case
for legal separation and for disqualification from the practice of
medicine which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the
documents and papers and for damages against petitioner. The
case was filed with the Regional Trial Court of Manila, Branch X,
which, after trial, rendered judgment for private respondent, Dr.
Alfredo Martin, declaring him "the capital/exclusive owner of the
properties described in paragraph 3 of plaintiff's Complaint or
those further described in the Motion to Return and Suppress"
and ordering Cecilia Zulueta and any person acting in her behalf to
immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and
attorney's fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were
enjoined from "using or submitting/admitting as evidence" the
documents and papers in question. On appeal, the Court of
Appeals affirmed the decision of the Regional Trial Court. Hence
this petition.
There is no question that the documents and papers in question
belong to private respondent, Dr. Alfredo Martin, and that they
were taken by his wife, the herein petitioner, without his
knowledge and consent. For that reason, the trial court declared
the documents and papers to be properties of private respondent,
ordered petitioner to return them to private respondent and
enjoined her from using them in evidence. In appealing from the
decision of the Court of Appeals affirming the trial court's
decision, petitioner's only ground is that in Alfredo Martin v.
Alfonso Felix, Jr., 1 this Court ruled that the documents and
papers (marked as Annexes A-1 to J-7 of respondent's comment in
that case) were admissible in evidence and, therefore, their use by
petitioner's attorney, Alfonso Felix, 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 respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix,
Jr. was for disbarment. Among other things, private respondent,
Dr. Alfredo Martin, as complainant in that case, charged that in
using the documents in evidence, Atty. Felix, Jr. committed
malpractice or gross misconduct because of the injunctive order
of the trial court. In dismissing the complaint against Atty. Felix,
Jr., this Court took note of the following defense of Atty. Felix, Jr.
which it found to be "impressed with merit:" 2
37
On the alleged malpractice or gross misconduct of respondent
[Alfonso Felix, Jr.], he maintains that:
xxx xxx xxx
4. When respondent refiled Cecilia's case for legal
separation before the Pasig Regional Trial Court, there was
admittedly an order of the Manila Regional Trial Court prohibiting
Cecilia from using the documents Annex "A-1 to J-7." On
September 6, 1983, however having appealed the said order to
this Court on a petition for certiorari, this Court issued a
restraining order on aforesaid date which order temporarily set
aside the order of the trial court. Hence, during the enforceability
of this Court's order, respondent's request for petitioner to admit
the genuineness and authenticity of the subject annexes cannot
be looked upon as malpractice. Notably, petitioner Dr. Martin
finally admitted the truth and authenticity of the questioned
annexes. At that point in time, would it have been malpractice for
respondent to use petitioner's admission as evidence against him
in the legal separation case pending in the Regional Trial Court of
Makati? Respondent submits it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel
but by Dr. Martin himself under oath. Such verified admission
constitutes an affidavit, and, therefore, receivable in evidence
against him. Petitioner became bound by his admission. For
Cecilia to avail herself of her husband's admission and use the
same in her action for legal separation cannot be treated as
malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case
amounts to no more than a declaration that his use of the
documents and papers for the purpose of securing Dr. Martin's
admission as to their genuineness and authenticity did not
constitute a violation of the injunctive order of the trial court. By
no means does the decision in that case establish the admissibility
of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted
of the charge of violating the writ of preliminary injunction issued
by the trial court, it was only because, at the time he used the
documents and papers, enforcement of the order of the trial court
was temporarily restrained by this Court. The TRO issued by this
Court was eventually lifted as the petition for certiorari filed by
petitioner against the trial court's order was dismissed and,
therefore, the prohibition against the further use of the
documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in
evidence. The constitutional injunction declaring "the privacy of
communication and correspondence [to be] inviolable" 3 is no less
applicable simply because it is the wife (who thinks herself
aggrieved by her husband's infidelity) who is the party against
whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a
"lawful order [from a] court or when public safety or order
requires otherwise, as prescribed by law." 4 Any violation of this
provision renders the evidence obtained inadmissible "for any
purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one
of them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the constitutional
protection is ever available to him or to her.

The law insures absolute freedom of communication between the

spouses by making it privileged. Neither husband nor wife may
testify for or against the other without the consent of the affected
spouse while the marriage subsists. 6 Neither may be examined
without the consent of the other as to any communication
received in confidence by one from the other during the marriage,
save for specified exceptions. 7 But one thing is freedom of
communication; quite another is a compulsion for each one to
share what one knows with the other. And this has nothing to do
with the duty of fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED. [G.R. No. 110662. August 4, 1994.]

TERESITA SALCEDO-ORTANEZ, petitioner, vs. COURT OF

APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94,
Regional Trial Court of Quezon city and RAFAEL S. ORTANEZ,
respondents.

SYLLABUS

REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; NOT

AVAILABLE TO CHALLENGE INTERLOCUTORY ORDER OF TRIAL
COURT; EXCEPTION; CASE AT BAR. — The extraordinary writ of
certiorari is generally not available to challenge an interlocutory
order of a trial court. The proper remedy in such cases is an
ordinary appeal from an adverse judgment, incorporating in said
appeal the grounds for assailing the interlocutory order. However,
where the assailed interlocutory order is patently erroneous and
the remedy of appeal would not afford adequate and expeditious
relief, the Court may allow certiorari as a mode of redress. In the
present case, the trial court issued the assailed order admitting all
of the evidence offered by private respondent, including tape
recordings of telephone conversations of petitioner with
unidentified persons. These tape recordings were made and
obtained when private respondent allowed his friends from the
military to wire tap his home telephone. Rep. Act No. 4200
entitled "An Act to Prohibit and Penalize Wire Tapping and other
Related Violations of the Privacy of Communication, and for other
purposes" expressly makes such tape recordings inadmissible in
evidence. . . . . Clearly, respondents trial court and Court of
Appeals failed to consider the afore-quoted provisions of the law
in admitting in evidence the cassette tapes in question. Absent a
clear showing that both parties to the telephone conversations
allowed the recording of the same, the inadmissibility of the
subject tapes is mandatory under Rep. Act No. 4200.

DECISION

PADILLA, J p:

38
This is a petition for review under Rule 45 of the Rules of Court
which seeks to reverse the decision * of respondent Court of
Appeals in CA-G.R. SP No. 28545 entitle "Teresita Salcedo-Ortanez
versus Hon. Romeo F. Zamora, Presiding Judge, Br. 94, Regional
Trial Court of Quezon City and Rafael S. Ortanez". prcd
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with
the Regional Trial Court of Quezon City a complaint for annulment
of marriage with damages against petitioner Teresita Salcedo-
Ortanez, on grounds of lack of marriage license and/or
psychological incapacity of the petitioner. The complaint was
docketed as Civil Case No. Q-90-5360 and raffled to Branch 94,
RTC of Quezon City presided over by respondent Judge Romeo F.
Zamora.
Private respondent, after presenting his evidence, orally formally
offered in evidence Exhibits "A" to "M"
Among the exhibits offered by private respondent were three (3)
cassette tapes of alleged telephone conversations between
petitioner and unidentified persons.
Petitioner submitted her Objection/Comment to private
respondent's oral offer of evidence on 9 June 1992; on the same
day, the trial court admitted all of private respondent's offered
evidence. Cdpr
A motion for reconsideration from petitioner was denied on 23
June 1992.
A petition for certiorari was then filed by petitioner in the Court of
Appeals assailing the admission in evidence of the
aforementioned cassette tapes.
On 10 June 1993, the Court of appeals rendered judgment which
is the subject of the present petition, which in part reads:
"It is much too obvious that the petition will have to fail, for two
basic reasons:
(1) Tape recordings are not inadmissible per se. They and
any other variant thereof can be admitted in evidence for certain
purposes, depending on how they are presented and offered and
on how the trial judge utilizes them in the interest of truth and
fairness and the even handed administration of justice.
(2) A petition for certiorari is notoriously inappropriate to
rectify a supposed error in admitting evidence adduced during
trial. The ruling on admissibility is interlocutory; neither does it
impinge on jurisdiction. If it is erroneous, the ruling should be
questioned in the appeal from the judgment on the merits and
not through the special civil action of certiorari. The error,
assuming gratuitously that it exists, cannot be anymore than an
error of law, properly correctible by appeal and not by certiorari.
Otherwise, we will have the sorry spectacle of a case being subject
of a counterproductive 'ping-pong' to and from the appellate
court as often as a trial court is perceived to have made an error
in any of its rulings with respect to evidentiary matters in the
course of trial. This we cannot sanction.
39
WHEREFORE, the petition for certiorari being devoid of merit, is
hereby DISMISSED". 1
From this adverse judgment, petitioner filed the present petition
for review, stating: Cdpr
"Grounds for Allowance of the Petition"
"10. The decision of respondent [Court of Appeals] has no
basis in law nor previous decisions of the Supreme Court.
10.1 In affirming the questioned order of respondent judge,
the Court of Appeals has decided a question of substance not
theretofore determined by the Supreme Court as the question of
admissibility in evidence of tape recordings has not, thus, far,
been addressed and decided squarely by the Supreme Court.
11. In affirming the questioned order of respondent judge,
the Court of Appeals has likewise rendered a decision in a way not
in accord with law and with applicable decisions of the Supreme
Court.
11.1 Although the questioned order is interlocutory in nature, the
same can still be [the] subject of a petition for certiorari." 2
The main issue to be resolved is whether or not the remedy of
certiorari under Rule 65 of the Rules of Court was properly availed
of by the petitioner in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to
challenge an interlocutory order of a trial court. The proper
remedy in such cases is an ordinary appeal from an adverse
judgment, incorporating in said appeal the grounds for assailing
the interlocutory order. LLpr
However, where the assailed interlocutory order is patently
erroneous and the remedy of appeal would not afford adequate
and expeditious relief, the court may allow certiorari as a mode of
redress. 3
In the present case, the trial court issued the assailed order
admitting all of the evidence offered by private respondent,
including tape recordings of telephone conversations of petitioner
with unidentified persons. These tape recordings were made and
obtained when private respondent allowed his friends from the
military to wire tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire
Tapping and Other Related Violations of the Privacy of
Communication, and for other purposes" expressly makes such
tape recordings inadmissible in evidence. The relevant provisions
of Rep. Act No. 4200 are as follows:
"Section 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication or
spoken word, to tap any wire or cable, or by using any other
device or arrangement, to secretly overhear, intercept, or record
such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described. . . ."
"Section 4. Any communication or spoken word, or the
existence, contents, substance, purport, or meaning of the same
or any part thereof, or any information therein contained,
obtained or secured by any person in violation of the preceding
sections of this Act shall not be admissible in evidence in any
judicial, quasi-judicial, legislative or administrative hearing or
investigation."

Clearly, respondents trial court and Court of Appeals failed to

consider the afore-quoted provisions of the law in admitting in
evidence the cassette tapes in question. Absent a clear showing
that both parties to the telephone conversations allowed to
recording of the same, the inadmissibility of the subject tapes is
mandatory under Rep. Act No. 4200. prLL

Additionally, it should be mentioned that the above-mentioned

Republic Act in Section 2 thereof imposes a penalty of
imprisonment of not less than six (6) months and up to six (6)
years for violation of said Act. 5

We need not address the other arguments raised by the parties,

involving the applicability of American jurisprudence, having
arrived at the conclusion that the subject cassette tapes are
U.S. Supreme Court
inadmissible in evidence under Philippine law.
Katz v. United States, 389 U.S. 347 (1967)
WHEREFORE, the decision of the Court of Appeals in CA-G.R. SP Katz v. United States
No. 28545 is hereby SET ASIDE. The subject cassette tapes are No. 35
declared inadmissible in evidence. Argued October 17, 1967
Decided December 18, 1967
SO ORDERED. 389 U.S. 347
CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Petitioner was convicted under an indictment charging him with

transmitting wagering information by telephone across state lines
in violation of 18 U.S.C. § 1084. Evidence of petitioner's end of the
conversations, overheard by FBI agents who had attached an
electronic listening and recording device to the outside of the
telephone booth from which the calls were made, was introduced
at the trial. The Court of Appeals affirmed the conviction, finding
that there was no Fourth Amendment violation, since there was
"no physical entrance into the area occupied by" petitioner.

Held:

1. The Government's eavesdropping activities violated the privacy

upon which petitioner justifiably relied while using the telephone
booth, and thus constituted a "search and seizure" within the
meaning of the Fourth Amendment. Pp. 389 U. S. 350-353.

(a) The Fourth Amendment governs not only the seizure of

tangible items, but extends as well to the recording of oral
statements. Silverman v. United States, 365 U. S. 505, 365 U. S.
511. P. 389 U. S. 353.

(b) Because the Fourth Amendment protects people, rather than

places, its reach cannot turn on the presence or absence of a
physical intrusion into any given enclosure. The "trespass"
40
doctrine of Olmstead v. United States, 277 U. S. 438, and Goldman
v. United States, 316 U. S. 129, is no longer controlling. Pp. 389 U.
S. 351, 389 U. S. 353.
2. Although the surveillance in this case may have been so
narrowly circumscribed that it could constitutionally have been
authorized in advance, it was not in fact conducted pursuant to
the warrant procedure which is a constitutional precondition of
such electronic surveillance. Pp. 389 U. S. 354-359.
369 F.2d 130, reversed.
Page 389 U. S. 348
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the District Court for the Southern
District of California under an eight-count indictment charging him
with transmitting wagering information by telephone from Los
Angeles to Miami and Boston, in violation of a federal statute.
[Footnote 1] At trial, the Government was permitted, over the
petitioner's objection, to introduce evidence of the petitioner's
end of telephone conversations, overheard by FBI agents who had
attached an electronic listening and recording device to the
outside of the public telephone booth from which he had placed
his calls. In affirming his conviction, the Court of Appeals rejected
the contention that the recordings had been obtained in violation
of the Fourth Amendment,
Page 389 U. S. 349
because "[t]here was no physical entrance into the area occupied
by [the petitioner]." [Footnote 2] We granted certiorari in order to
consider the constitutional questions thus presented. [Footnote 3]
The petitioner has phrased those questions as follows:
"A. Whether a public telephone booth is a constitutionally
protected area so that evidence obtained by attaching an
electronic listening recording device to the top of such a booth is
obtained in violation of the right to privacy of the user of the
booth. "
Page 389 U. S. 350
"B. Whether physical penetration of a constitutionally protected
area is necessary before a search and seizure can be said to be
violative of the Fourth Amendment to the United States
Constitution."
We decline to adopt this formulation of the issues. In the first
place, the correct solution of Fourth Amendment problems is not
necessarily promoted by incantation of the phrase
"constitutionally protected area." Secondly, the Fourth
Amendment cannot be translated into a general constitutional
"right to privacy." That Amendment protects individual privacy
against certain kinds of governmental intrusion, but its
protections go further, and often have nothing to do with privacy
at all. [Footnote 4] Other provisions of the Constitution protect
personal privacy from other forms of governmental invasion.
[Footnote 5] But the protection of a person's general right to
41
privacy -- his right to be let alone by other people [Footnote 6] --
is, like the
Page 389 U. S. 351
protection of his property and of his very life, left largely to the
law of the individual States. [Footnote 7]
Because of the misleading way the issues have been formulated,
the parties have attached great significance to the
characterization of the telephone booth from which the petitioner
placed his calls. The petitioner has strenuously argued that the
booth was a "constitutionally protected area." The Government
has maintained with equal vigor that it was not. [Footnote 8] But
this effort to decide whether or not a given "area," viewed in the
abstract, is "constitutionally protected" deflects attention from
the problem presented by this case. [Footnote 9] For the Fourth
Amendment protects people, not places. What a person
knowingly exposes to the public, even in his own home or office, is
not a subject of Fourth Amendment protection. See Lewis v.
United States, 385 U. S. 206, 385 U. S. 210; United States v.
Lee, 274 U. S. 559, 274 U. S. 563. But what he seeks to preserve as
private, even in an area accessible to the public, may be
constitutionally protected.
Page 389 U. S. 352
See Rios v. United States, 364 U. S. 253; Ex parte Jackson, 96 U. S.
727, 96 U. S. 733.
The Government stresses the fact that the telephone booth from
which the petitioner made his calls was constructed partly of
glass, so that he was as visible after he entered it as he would
have been if he had remained outside. But what he sought to
exclude when he entered the booth was not the intruding eye -- it
was the uninvited ear. He did not shed his right to do so simply
because he made his calls from a place where he might be seen.
No less than an individual in a business office, [Footnote 10] in a
friend's apartment, [Footnote 11] or in a taxicab, [Footnote 12] a
person in a telephone booth may rely upon the protection of the
Fourth Amendment. One who occupies it, shuts the door behind
him, and pays the toll that permits him to place a call is surely
entitled to assume that the words he utters into the mouthpiece
will not be broadcast to the world. To read the Constitution more
narrowly is to ignore the vital role that the public telephone has
come to play in private communication.
The Government contends, however, that the activities of its
agents in this case should not be tested by Fourth Amendment
requirements, for the surveillance technique they employed
involved no physical penetration of the telephone booth from
which the petitioner placed his calls. It is true that the absence of
such penetration was at one time thought to foreclose further
Fourth Amendment inquiry, Olmstead v. United States, 277 U. S.
438, 277 U. S. 457, 277 U. S. 464, 277 U. S. 466; Goldman v. United
States, 316 U. S. 129,316 U. S. 134-136, for that Amendment was
thought to limit only searches and seizures of tangible
Page 389 U. S. 353
property. [Footnote 13] But "[t]he premise that property interests
control the right of the Government to search and seize has been
discredited." Warden v. Hayden, 387 U. S. 294, 387 U. S. 304.
Thus, although a closely divided Court supposed in Olmstead that
surveillance without any trespass and without the seizure of any
material object fell outside the ambit of the Constitution, we have
since departed from the narrow view on which that decision
rested. Indeed, we have expressly held that the Fourth
Amendment governs not only the seizure of tangible items, but
extends as well to the recording of oral statements, overheard
without any "technical trespass under . . . local property
law." Silverman v. United States, 365 U. S. 505, 365 U. S. 511.
Once this much is acknowledged, and once it is recognized that
the Fourth Amendment protects people -- and not simply "areas" -
- against unreasonable searches and seizures, it becomes clear
that the reach of that Amendment cannot turn upon the presence
or absence of a physical intrusion into any given enclosure.
We conclude that the underpinnings
of Olmstead and Goldman have been so eroded by our
subsequent decisions that the "trespass" doctrine there
enunciated can no longer be regarded as controlling. The
Government's activities in electronically listening to and recording
the petitioner's words violated the privacy upon which he
justifiably relied while using the telephone booth, and thus
constituted a "search and seizure" within the meaning of the
Fourth Amendment. The fact that the electronic device employed
to achieve that end did not happen to penetrate the wall of the
booth can have no constitutional significance.
Page 389 U. S. 354
The question remaining for decision, then, is whether the search
and seizure conducted in this case complied with constitutional
standards. In that regard, the Government's position is that its
agents acted in an entirely defensible manner: they did not begin
their electronic surveillance until investigation of the petitioner's
activities had established a strong probability that he was using
the telephone in question to transmit gambling information to
persons in other States, in violation of federal law. Moreover, the
surveillance was limited, both in scope and in duration, to the
specific purpose of establishing the contents of the petitioner's
unlawful telephonic communications. The agents confined their
surveillance to the brief periods during which he used the
telephone booth, [Footnote 14] and they took great care to
overhear only the conversations of the petitioner himself.
[Footnote 15]
Accepting this account of the Government's actions as accurate, it
is clear that this surveillance was so narrowly circumscribed that a
duly authorized magistrate, properly notified of the need for such
investigation, specifically informed of the basis on which it was to
proceed, and clearly apprised of the precise intrusion it would
entail, could constitutionally have authorized, with appropriate
safeguards, the very limited search and seizure that the
Government asserts, in fact, took place. Only last Term we
sustained the validity of
Page 389 U. S. 355
42
such an authorization, holding that, under sufficiently "precise and
discriminate circumstances," a federal court may empower
government agents to employ a concealed electronic device "for
the narrow and particularized purpose of ascertaining the truth of
the . . . allegations" of a "detailed factual affidavit alleging the
commission of a specific criminal offense." Osborn v. United
States, 385 U. S. 323, 385 U. S. 329-330. Discussing that holding,
the Court in Berger v. New York, 388 U. S. 41, said that "the order
authorizing the use of the electronic device" in Osborn "afforded
similar protections to those . . . of conventional warrants
authorizing the seizure of tangible evidence." Through those
protections, "no greater invasion of privacy was permitted than
was necessary under the circumstances." Id. at 388 U. S. 57.
[Footnote 16] Here, too, a similar
Page 389 U. S. 356
judicial order could have accommodated "the legitimate needs of
law enforcement" [Footnote 17] by authorizing the carefully
limited use of electronic surveillance.
The Government urges that, because its agents relied upon the
decisions in Olmstead and Goldman, and because they did no
more here than they might properly have done with prior judicial
sanction, we should retroactively validate their conduct. That we
cannot do. It is apparent that the agents in this case acted with
restraint. Yet the inescapable fact is that this restraint was
imposed by the agents themselves, not by a judicial officer. They
were not required, before commencing the search, to present
their estimate of probable cause for detached scrutiny by a
neutral magistrate. They were not compelled, during the conduct
of the search itself, to observe precise limits established in
advance by a specific court order. Nor were they directed, after
the search had been completed, to notify the authorizing
magistrate in detail of all that had been seized. In the absence of
such safeguards, this Court has never sustained a search upon the
sole ground that officers reasonably expected to find evidence of
a particular crime and voluntarily confined their activities to the
least intrusive
Page 389 U. S. 357
means consistent with that end. Searches conducted without
warrants have been held unlawful "notwithstanding facts
unquestionably showing probable cause," Agnello v. United
States, 269 U. S. 20, 269 U. S. 33, for the Constitution requires
"that the deliberate, impartial judgment of a judicial officer . . . be
interposed between the citizen and the police. . . ." Wong Sun v.
United States, 371 U. S. 471, 371 U. S. 481-482. "Over and again,
this Court has emphasized that the mandate of the [Fourth]
Amendment requires adherence to judicial processes," United
States v. Jeffers, 342 U. S. 48, 342 U. S. 51, and that searches
conducted outside the judicial process, without prior approval by
judge or magistrate, are per seunreasonable under the Fourth
Amendment [Footnote 18] -- subject only to a few specifically
established and well delineated exceptions. [Footnote 19]
It is difficult to imagine how any of those exceptions could ever
apply to the sort of search and seizure involved in this case. Even
electronic surveillance substantially contemporaneous with an
individual's arrest could hardly be deemed an "incident" of that
arrest. [Footnote 20]

Page 389 U. S. 358

Nor could the use of electronic surveillance without prior

authorization be justified on grounds of "hot pursuit." [Footnote
21] And, of course, the very nature of electronic surveillance
precludes its use pursuant to the suspect's consent. [Footnote 22]

The Government does not question these basic principles. Rather,

it urges the creation of a new exception to cover this case.
[Footnote 23] It argues that surveillance of a telephone booth
should be exempted from the usual requirement of advance
authorization by a magistrate upon a showing of probable cause.
We cannot agree. Omission of such authorization

"bypasses the safeguards provided by an objective

predetermination of probable cause, and substitutes instead the
far less reliable procedure of an after-the-event justification for
the . . . search, too likely to be subtly influenced by the familiar
shortcomings of hindsight judgment."

Beck v. Ohio, 379 U. S. 89, 379 U. S. 96. And bypassing a neutral

predetermination of the scope of a search leaves individuals
secure from Fourth Amendment
Page 389 U. S. 359
violations "only in the discretion of the police." Id. at 379 U. S. 97.
These considerations do not vanish when the search in question is
transferred from the setting of a home, an office, or a hotel room
to that of a telephone booth. Wherever a man may be, he is
entitled to know that he will remain free from unreasonable
searches and seizures. The government agents here ignored "the
procedure of antecedent justification . . . that is central to the
Fourth Amendment," [Footnote 24] a procedure that we hold to
be a constitutional precondition of the kind of electronic
surveillance involved in this case. Because the surveillance here
failed to meet that condition, and because it led to the
petitioner's conviction, the judgment must be reversed.
It is so ordered.
[G.R. No. 181881. October 18, 2011.]
BRICCIO "Ricky" A. POLLO, petitioner, vs. CHAIRPERSON KARINA
CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN
BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE
COMMISSION, respondents.
DECISION
VILLARAMA, JR., J p:
This case involves a search of office computer assigned to a
government employee who was charged administratively and
eventually dismissed from the service. The employee's personal
files stored in the computer were used by the government
employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which
seeks to reverse and set aside the Decision 1 dated October 11,
2007 and Resolution 2 dated February 29, 2008 of the Court of
Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R.
SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify
the proceedings conducted by the Civil Service Commission (CSC)
which found him guilty of dishonesty, grave misconduct, conduct
prejudicial to the best interest of the service, and violation of
Republic Act (R.A.) No. 6713 and penalized him with dismissal.
CacISA

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC

Regional Office No. IV and also the Officer-in-Charge of the Public
Assistance and Liaison Division (PALD) under the "Mamamayan
Muna Hindi Mamaya Na" program of the CSC.
43
On January 3, 2007 at around 2:30 p.m., an unsigned letter-
complaint addressed to respondent CSC Chairperson Karina
Constantino-David which was marked "Confidential" and sent
through a courier service (LBC) from a certain "Alan San Pascual"
of Bagong Silang, Caloocan City, was received by the Integrated
Records Management Office (IRMO) at the CSC Central Office.
Following office practice in which documents marked
"Confidential" are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson
David. ATDHSC
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask
from you personally if it is just alright for an employee of your
agency to be a lawyer of an accused gov't employee having a
pending case in the csc. I honestly think this is a violation of law
and unfair to others and your office.
I have known that a person have been lawyered by one of your
attorney in the region 4 office. He is the chief of the Mamamayan
muna hindi mamaya na division. He have been helping many who
have pending cases in the CSC. The justice in our govt system will
not be served if this will continue. Please investigate this anomaly
because our perception of your clean and good office is being
tainted. TSADaI
Concerned Govt employee 3
Chairperson David immediately formed a team of four personnel
with background in information technology (IT), and issued a
memo directing them to conduct an investigation and specifically
"to back up all the files in the computers found in the
Mamamayan Muna (PALD) and Legal divisions." 4 After some
briefing, the team proceeded at once to the CSC-ROIV office at
Panay Avenue, Quezon City. Upon their arrival thereat around
5:30 p.m., the team informed the officials of the CSC-ROIV,
respondents Director IV Lydia Castillo (Director Castillo) and
Director III Engelbert Unite (Director Unite) of Chairperson David's
directive.
The backing-up of all files in the hard disk of computers at the
PALD and Legal Services Division (LSD) was witnessed by several
employees, together with Directors Castillo and Unite who closely
monitored said activity. At around 6:00 p.m., Director Unite sent
text messages to petitioner and the head of LSD, who were both
out of the office at the time, informing them of the ongoing
copying of computer files in their divisions upon orders of the CSC
Chair. The text messages received by petitioner read:
44
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs
of PALD and LSD per instruction of the Chairman. If you can make
it here now it would be better."
"All PCs of PALD and LSD are being backed up per memo of the
chair."
"CO IT people arrived just now for this purpose. We were not also
informed about this.
"We can't do anything about . . . it . . . it's a directive from chair."
"Memo of the chair was referring to an anonymous complaint";
"ill send a copy of the memo via mms" 5
Petitioner replied also thru text message that he was leaving the
matter to Director Unite and that he will just get a lawyer.
Another text message received by petitioner from PALD staff also
reported the presence of the team from CSC main office: "Sir may
mga taga C.O. daw sa kuarto natin." 6 At around 10:00 p.m. of the
same day, the investigating team finished their task. The next day,
all the computers in the PALD were sealed and secured for the
purpose of preserving all the files stored therein. Several diskettes
containing the back-up files sourced from the hard disk of PALD
and LSD computers were turned over to Chairperson David. The
contents of the diskettes were examined by the CSC's Office for
Legal Affairs (OLA). It was found that most of the files in the 17
diskettes containing files copied from the computer assigned to
and being used by the petitioner, numbering about 40 to 42
documents, were draft pleadings or letters 7 in connection with
administrative cases in the CSC and other tribunals. On the basis
of this finding, Chairperson David issued the Show-Cause Order 8
dated January 11, 2007, requiring the petitioner, who had gone on
extended leave, to submit his explanation or counter-affidavit
within five days from notice. DIEAHc
Evaluating the subject documents obtained from petitioner's
personal files, Chairperson David made the following
observations:
Most of the foregoing files are drafts of legal pleadings or
documents that are related to or connected with administrative
cases that may broadly be lumped as pending either in the CSCRO
No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is
also of note that most of these draft pleadings are for and on
behalves of parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the one
who prepared them was knowingly, deliberately and willfully
aiding and advancing interests adverse and inimical to the interest
of the CSC as the central personnel agency of the government
tasked to discipline misfeasance and malfeasance in the
government service. The number of pleadings so prepared further
demonstrates that such person is not merely engaged in an
isolated practice but pursues it with seeming regularity. It would
also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned
had engaged in this customary practice without any consideration,
and in fact, one of the retrieved files (item 13 above) appears to
insinuate the collection of fees. That these draft pleadings were
obtained from the computer assigned to Pollo invariably raises the
presumption that he was the one responsible or had a hand in
their drafting or preparation since the computer of origin was
within his direct control and disposition. 9
Petitioner filed his Comment, denying that he is the person
referred to in the anonymous letter-complaint which had no
attachments to it, because he is not a lawyer and neither is he
"lawyering" for people with cases in the CSC. He accused CSC
officials of conducting a "fishing expedition" when they unlawfully
copied and printed personal files in his computer, and
subsequently asking him to submit his comment which violated
his right against self-incrimination. He asserted that he had
protested the unlawful taking of his computer done while he was
on leave, citing the letter dated January 8, 2007 in which he
informed Director Castillo that the files in his computer were his
personal files and those of his sister, relatives, friends and some
associates and that he is not authorizing their sealing, copying,
duplicating and printing as these would violate his constitutional
right to privacy and protection against self-incrimination and
warrantless search and seizure. He pointed out that though
government property, the temporary use and ownership of the
computer issued under a Memorandum of Receipt (MR) is ceded
to the employee who may exercise all attributes of ownership,
including its use for personal purposes. As to the anonymous
letter, petitioner argued that it is not actionable as it failed to
comply with the requirements of a formal complaint under the
Uniform Rules on Administrative Cases in the Civil Service
(URACC). In view of the illegal search, the files/documents copied
from his computer without his consent is thus inadmissible as
evidence, being "fruits of a poisonous tree." 10 CaAIES
On February 26, 2007, the CSC issued Resolution No. 070382 11
finding prima facie case against the petitioner and charging him
with Dishonesty, Grave Misconduct, Conduct Prejudicial to the
Best Interest of the Service and Violation of R.A. No. 6713 (Code of
Conduct and Ethical Standards for Public Officials and Employees).
Petitioner was directed to submit his answer under oath within
five days from notice and indicate whether he elects a formal
investigation. Since the charges fall under Section 19 of the
URACC, petitioner was likewise placed under 90 days preventive
suspension effective immediately upon receipt of the resolution.
Petitioner received a copy of Resolution No. 070382 on March 1,
2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to
Dismiss and/or to Defer) assailing the formal charge as without
basis having proceeded from an illegal search which is beyond the
authority of the CSC Chairman, such power pertaining solely to
the court. Petitioner reiterated that he never aided any people
with pending cases at the CSC and alleged that those files found in
his computer were prepared not by him but by certain persons
whom he permitted, at one time or another, to make use of his
computer out of close association or friendship. Attached to the
motion were the affidavit of Atty. Ponciano R. Solosa who
entrusted his own files to be kept at petitioner's CPU and Atty.
Eric N. Estrellado, the latter being Atty. Solosa's client who
attested that petitioner had nothing to do with the pleadings or
bill for legal fees because in truth he owed legal fees to Atty.
Solosa and not to petitioner. Petitioner contended that the case
45
should be deferred in view of the prejudicial question raised in the
criminal complaint he filed before the Ombudsman against
Director Buensalida, whom petitioner believes had instigated this
administrative case. He also prayed for the lifting of the
preventive suspension imposed on him. In its Resolution No.
070519 12 dated March 19, 2007, the CSC denied the omnibus
motion. The CSC resolved to treat the said motion as petitioner's
answer. AIDTHC
On March 14, 2007, petitioner filed an Urgent Petition 13 under
Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224,
assailing both the January 11, 2007 Show-Cause Order and
Resolution No. 070382 dated February 26, 2007 as having been
issued with grave abuse of discretion amounting to excess or total
absence of jurisdiction. Prior to this, however, petitioner lodged
an administrative/criminal complaint against respondents
Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC
Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of
the Ombudsman, and a separate complaint for disbarment against
Director Buensalida. 14
On April 17, 2007, petitioner received a notice of hearing from the
CSC setting the formal investigation of the case on April 30, 2007.
On April 25, 2007, he filed in the CA an Urgent Motion for the
issuance of TRO and preliminary injunction. 15 Since he failed to
attend the pre-hearing conference scheduled on April 30, 2007,
the CSC reset the same to May 17, 2007 with warning that the
failure of petitioner and/or his counsel to appear in the said pre-
hearing conference shall entitle the prosecution to proceed with
the formal investigation ex-parte. 16 Petitioner moved to defer or
to reset the pre-hearing conference, claiming that the
investigation proceedings should be held in abeyance pending the
resolution of his petition by the CA. The CSC denied his request
and again scheduled the pre-hearing conference on May 18, 2007
with similar warning on the consequences of petitioner and/or his
counsel's non-appearance. 17 This prompted petitioner to file
another motion in the CA, to cite the respondents, including the
hearing officer, in indirect contempt. 18
On June 12, 2007, the CSC issued Resolution No. 071134 19
denying petitioner's motion to set aside the denial of his motion
to defer the proceedings and to inhibit the designated hearing
officer, Atty. Bernard G. Jimenez. The hearing officer was directed
to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the
motion of the prosecution, petitioner was deemed to have waived
his right to the formal investigation which then proceeded ex
parte.
On July 24, 2007, the CSC issued Resolution No. 071420, 20 the
dispositive part of which reads:
WHEREFORE, foregoing premises considered, the Commission
hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of
Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of Republic Act 6713. He is
meted the penalty of DISMISSAL FROM THE SERVICE with all its
accessory penalties, namely, disqualification to hold public office,
forfeiture of retirement benefits, cancellation of civil service
eligibilities and bar from taking future civil service examinations.
21
On the paramount issue of the legality of the search conducted on
petitioner's computer, the CSC noted the dearth of jurisprudence
relevant to the factual milieu of this case where the government
as employer invades the private files of an employee stored in the
computer assigned to him for his official use, in the course of
initial investigation of possible misconduct committed by said
employee and without the latter's consent or participation. The
CSC thus turned to relevant rulings of the United States Supreme
Court, and cited the leading case of O'Connor v. Ortega 22 as
authority for the view that government agencies, in their capacity
as employers, rather than law enforcers, could validly conduct
search and seizure in the governmental workplace without
meeting the "probable cause" or warrant requirement for search
and seizure. Another ruling cited by the CSC is the more recent
case of United States v. Mark L. Simons 23 which declared that the
federal agency's computer use policy foreclosed any inference of
reasonable expectation of privacy on the part of its employees.
Though the Court therein recognized that such policy did not, at
the same time, erode the respondent's legitimate expectation of
privacy in the office in which the computer was installed, still, the
warrantless search of the employee's office was upheld as valid
because a government employer is entitled to conduct a
warrantless search pursuant to an investigation of work-related
misconduct provided the search is reasonable in its inception and
scope. CaDEAT
With the foregoing American jurisprudence as benchmark, the
CSC held that petitioner has no reasonable expectation of privacy
with regard to the computer he was using in the regional office in
view of the CSC computer use policy which unequivocally declared
that a CSC employee cannot assert any privacy right to a computer
assigned to him. Even assuming that there was no such
administrative policy, the CSC was of the view that the search of
petitioner's computer successfully passed the test of
reasonableness for warrantless searches in the workplace as
enunciated in the aforecited authorities. The CSC stressed that it
pursued the search in its capacity as government employer and
that it was undertaken in connection with an investigation
involving work-related misconduct, which exempts it from the
warrant requirement under the Constitution. With the matter of
admissibility of the evidence having been resolved, the CSC then
ruled that the totality of evidence adequately supports the
charges of grave misconduct, dishonesty, conduct prejudicial to
the best interest of the service and violation of R.A. No. 6713
against the petitioner. These grave infractions justified petitioner's
dismissal from the service with all its accessory penalties.
In his Memorandum 24 filed in the CA, petitioner moved to
incorporate the above resolution dismissing him from the service
in his main petition, in lieu of the filing of an appeal via a Rule 43
petition. In a subsequent motion, he likewise prayed for the
inclusion of Resolution No. 071800 25 which denied his motion for
reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition
for certiorari after finding no grave abuse of discretion committed
46
by respondents CSC officials. The CA held that: (1) petitioner was
not charged on the basis of the anonymous letter but from the
initiative of the CSC after a fact-finding investigation was
conducted and the results thereof yielded a prima facie case
against him; (2) it could not be said that in ordering the back-up of
files in petitioner's computer and later confiscating the same,
Chairperson David had encroached on the authority of a judge in
view of the CSC computer policy declaring the computers as
government property and that employee-users thereof have no
reasonable expectation of privacy in anything they create, store,
send, or receive on the computer system; and (3) there is nothing
contemptuous in CSC's act of proceeding with the formal
investigation as there was no restraining order or injunction
issued by the CA. IACDaS
His motion for reconsideration having been denied by the CA,
petitioner brought this appeal arguing that —
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND
COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN
LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER
E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF
CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO
THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED
PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE
HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE,
AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY
RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION
CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM
WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY
INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO
SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M.
IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION
[OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND
TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN
HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS
ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES
WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF O.M.
10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT
RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH
ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO
ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;
DSHcTC
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER
ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO
SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE
ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC
RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT
RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE
ANCILLARY PRAYER FOR TRO. 26
Squarely raised by the petitioner is the legality of the search
conducted on his office computer and the copying of his personal
files without his knowledge and consent, alleged as a
transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure under Section 2, Article
III of the 1987 Constitution, 27 which provides:
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.
The constitutional guarantee is not a prohibition of all searches
and seizures but only of "unreasonable" searches and seizures. 28
But to fully understand this concept and application for the
purpose of resolving the issue at hand, it is essential that we
examine the doctrine in the light of pronouncements in another
jurisdiction. As the Court declared in People v. Marti: 29
Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter
which, worded as follows:
"The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures
shall not be violated, and no warrants shall issue but upon
probable cause, to be determined 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." (Sec. 1[3],
Article III) DcaCSE
was in turn derived almost verbatim from the Fourth Amendment
to the United States Constitution. As such, the Court may turn to
the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this
jurisdiction. 30
47
In the 1967 case of Katz v. United States, 31 the US Supreme Court
held that the act of FBI agents in electronically recording a
conversation made by petitioner in an enclosed public telephone
booth violated his right to privacy and constituted a "search and
seizure". Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone
call, the protection of the Fourth Amendment extends to such
area. In the concurring opinion of Mr. Justice Harlan, it was
further noted that the existence of privacy right under prior
decisions involved a two-fold requirement: first, that a person has
exhibited an actual (subjective) expectation of privacy; and
second, that the expectation be one that society is prepared to
recognize as reasonable (objective). 32
In Mancusi v. DeForte 33 which addressed the reasonable
expectations of private employees in the workplace, the US
Supreme Court held that a union employee had Fourth
Amendment rights with regard to an office at union headquarters
that he shared with other union officials, even as the latter or
their guests could enter the office. The Court thus "recognized
that employees may have a reasonable expectation of privacy
against intrusions by police."
That the Fourth Amendment equally applies to a government
workplace was addressed in the 1987 case of O'Connor v. Ortega
34 where a physician, Dr. Magno Ortega, who was employed by a
state hospital, claimed a violation of his Fourth Amendment rights
when hospital officials investigating charges of mismanagement of
the psychiatric residency program, sexual harassment of female
hospital employees and other irregularities involving his private
patients under the state medical aid program, searched his office
and seized personal items from his desk and filing cabinets. In that
case, the Court categorically declared that "[i]ndividuals do not
lose Fourth Amendment rights merely because they work for the
government instead of a private employer." 35 A plurality of four
Justices concurred that the correct analysis has two steps: first,
because "some government offices may be so open to fellow
employees or the public that no expectation of privacy is
reasonable", a court must consider "[t]he operational realities of
the workplace" in order to determine whether an employee's
Fourth Amendment rights are implicated; and next, where an
employee has a legitimate privacy expectation, an employer's
intrusion on that expectation "for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct,
should be judged by the standard of reasonableness under all the
circumstances." 36 AIcECS
On the matter of government employees' reasonable expectations
of privacy in their workplace, O'Connor teaches:
. . . Public employees' expectations of privacy in their offices,
desks, and file cabinets, like similar expectations of employees in
the private sector, may be reduced by virtue of actual office
practices and procedures, or by legitimate regulation. . . . The
employee's expectation of privacy must be assessed in the context
of the employment relation. An office is seldom a private enclave
free from entry by supervisors, other employees, and business
and personal invitees. Instead, in many cases offices are
continually entered by fellow employees and other visitors during
the workday for conferences, consultations, and other work-
related visits. Simply put, it is the nature of government offices
that others — such as fellow employees, supervisors, consensual
visitors, and the general public — may have frequent access to an
individual's office. We agree with JUSTICE SCALIA that
"[c]onstitutional protection against unreasonable searches by the
government does not disappear merely because the government
has the right to make reasonable intrusions in its capacity as
employer," . . . but some government offices may be so open to
fellow employees or the public that no expectation of privacy is
reasonable. . . . Given the great variety of work environments in
the public sector, the question of whether an employee has a
reasonable expectation of privacy must be addressed on a case-
by-case basis. 37 (Citations omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US
Supreme Court declared that Dr. Ortega's Fourth Amendment
rights are implicated only if the conduct of the hospital officials
infringed "an expectation of privacy that society is prepared to
consider as reasonable." Given the undisputed evidence that
respondent Dr. Ortega did not share his desk or file cabinets with
any other employees, kept personal correspondence and other
private items in his own office while those work-related files (on
physicians in residency training) were stored outside his office,
and there being no evidence that the hospital had established any
reasonable regulation or policy discouraging employees from
storing personal papers and effects in their desks or file cabinets
(although the absence of such a policy does not create any
expectation of privacy where it would not otherwise exist), the
Court concluded that Dr. Ortega has a reasonable expectation of
privacy at least in his desk and file cabinets. 38
Proceeding to the next inquiry as to whether the search
conducted by hospital officials was reasonable, the O'Connor
plurality decision discussed the following principles: aESICD
Having determined that Dr. Ortega had a reasonable expectation
of privacy in his office, the Court of Appeals simply concluded
without discussion that the "search . . . was not a reasonable
search under the fourth amendment." . . . "[t]o hold that the
Fourth Amendment applies to searches conducted by [public
employers] is only to begin the inquiry into the standards
governing such searches . . . [W]hat is reasonable depends on the
context within which a search takes place. . . . Thus, we must
determine the appropriate standard of reasonableness applicable
to the search. A determination of the standard of reasonableness
applicable to a particular class of searches requires "balanc[ing]
the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the importance of the governmental
interests alleged to justify the intrusion." . . . In the case of
searches conducted by a public employer, we must balance the
invasion of the employees' legitimate expectations of privacy
against the government's need for supervision, control, and the
efficient operation of the workplace.
xxx xxx xxx
In our view, requiring an employer to obtain a warrant whenever
the employer wished to enter an employee's office, desk, or file
48
cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome.
Imposing unwieldy warrant procedures in such cases upon
supervisors, who would otherwise have no reason to be familiar
with such procedures, is simply unreasonable. In contrast to other
circumstances in which we have required warrants, supervisors in
offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related
searches are merely incident to the primary business of the
agency. Under these circumstances, the imposition of a warrant
requirement would conflict with the "common-sense realization
that government offices could not function if every employment
decision became a constitutional matter." . . . cCHITA
xxx xxx xxx
The governmental interest justifying work-related intrusions by
public employers is the efficient and proper operation of the
workplace. Government agencies provide myriad services to the
public, and the work of these agencies would suffer if employers
were required to have probable cause before they entered an
employee's desk for the purpose of finding a file or piece of office
correspondence. Indeed, it is difficult to give the concept of
probable cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a search is to
retrieve a file for work-related reasons. Similarly, the concept of
probable cause has little meaning for a routine inventory
conducted by public employers for the purpose of securing state
property. . . . To ensure the efficient and proper operation of the
agency, therefore, public employers must be given wide latitude
to enter employee offices for work-related, noninvestigatory
reasons.
We come to a similar conclusion for searches conducted pursuant
to an investigation of work-related employee misconduct. Even
when employers conduct an investigation, they have an interest
substantially different from "the normal need for law
enforcement." . . . Public employers have an interest in ensuring
that their agencies operate in an effective and efficient manner,
and the work of these agencies inevitably suffers from the
inefficiency, incompetence, mismanagement, or other work-
related misfeasance of its employees. Indeed, in many cases,
public employees are entrusted with tremendous responsibility,
and the consequences of their misconduct or incompetence to
both the agency and the public interest can be severe. In contrast
to law enforcement officials, therefore, public employers are not
enforcers of the criminal law; instead, public employers have a
direct and overriding interest in ensuring that the work of the
agency is conducted in a proper and efficient manner. In our view,
therefore, a probable cause requirement for searches of the type
at issue here would impose intolerable burdens on public
employers. The delay in correcting the employee misconduct
caused by the need for probable cause rather than reasonable
suspicion will be translated into tangible and often irreparable
damage to the agency's work, and ultimately to the public
interest. . . .
xxx xxx xxx
In sum, we conclude that the "special needs, beyond the normal
need for law enforcement make the . . . probable-cause
requirement impracticable," . . . for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-
related misconduct. A standard of reasonableness will neither
unduly burden the efforts of government employers to ensure the
efficient and proper operation of the workplace, nor authorize
arbitrary intrusions upon the privacy of public employees. We
hold, therefore, that public employer intrusions on the
constitutionally protected privacy interests of government
employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged
by the standard of reasonableness under all the circumstances.
Under this reasonableness standard, both the inception and the
scope of the intrusion must be reasonable: TECIHD
"Determining the reasonableness of any search involves a twofold
inquiry: first, one must consider 'whether the . . . action was
justified at its inception,' . . .; second, one must determine
whether the search as actually conducted 'was reasonably related
in scope to the circumstances which justified the interference in
the first place,'" . . .
Ordinarily, a search of an employee's office by a supervisor will be
"justified at its inception" when there are reasonable grounds for
suspecting that the search will turn up evidence that the
employee is guilty of work-related misconduct, or that the search
is necessary for a noninvestigatory work-related purpose such as
to retrieve a needed file. . . . The search will be permissible in its
scope when "the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in light of . . .
the nature of the [misconduct]." . . . 39 (Citations omitted;
emphasis supplied.)
Since the District Court granted summary judgment without a
hearing on the factual dispute as to the character of the search
and neither was there any finding made as to the scope of the
search that was undertaken, the case was remanded to said court
for the determination of the justification for the search and
seizure, and evaluation of the reasonableness of both the
inception of the search and its scope.
In O'Connor the Court recognized that "special needs" authorize
warrantless searches involving public employees for work-related
reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employee's
reasonable expectation of privacy. This reasonableness test
implicates neither probable cause nor the warrant requirement,
which are related to law enforcement. 40
O'Connor was applied in subsequent cases raising issues on
employees' privacy rights in the workplace. One of these cases
involved a government employer's search of an office computer,
United States v. Mark L. Simons 41 where the defendant Simons,
an employee of a division of the Central Intelligence Agency (CIA),
was convicted of receiving and possessing materials containing
child pornography. Simons was provided with an office which he
did not share with anyone, and a computer with Internet access.
The agency had instituted a policy on computer use stating that
49
employees were to use the Internet for official government
business only and that accessing unlawful material was specifically
prohibited. The policy also stated that users shall understand that
the agency will periodically audit, inspect, and/or monitor the
user's Internet access as deemed appropriate. CIA agents
instructed its contractor for the management of the agency's
computer network, upon initial discovery of prohibited internet
activity originating from Simons' computer, to conduct a remote
monitoring and examination of Simons' computer. After
confirming that Simons had indeed downloaded pictures that
were pornographic in nature, all the files on the hard drive of
Simon's computer were copied from a remote work station. Days
later, the contractor's representative finally entered Simon's
office, removed the original hard drive on Simon's computer,
replaced it with a copy, and gave the original to the agency
security officer. Thereafter, the agency secured warrants and
searched Simons' office in the evening when Simons was not
around. The search team copied the contents of Simons'
computer; computer diskettes found in Simons' desk drawer;
computer files stored on the zip drive or on zip drive diskettes;
videotapes; and various documents, including personal
correspondence. At his trial, Simons moved to suppress these
evidence, arguing that the searches of his office and computer
violated his Fourth Amendment rights. After a hearing, the district
court denied the motion and Simons was found guilty as charged.
CDAcIT
Simons appealed his convictions. The US Supreme Court ruled that
the searches of Simons' computer and office did not violate his
Fourth Amendment rights and the first search warrant was valid.
It held that the search remains valid under the O'Connor
exception to the warrant requirement because evidence of the
crime was discovered in the course of an otherwise proper
administrative inspection. Simons' violation of the agency's
Internet policy happened also to be a violation of criminal law;
this does not mean that said employer lost the capacity and
interests of an employer. The warrantless entry into Simons' office
was reasonable under the Fourth Amendment standard
announced in O'Connor because at the inception of the search,
the employer had "reasonable grounds for suspecting" that the
hard drive would yield evidence of misconduct, as the employer
was already aware that Simons had misused his Internet access to
download over a thousand pornographic images. The retrieval of
the hard drive was reasonably related to the objective of the
search, and the search was not excessively intrusive. Thus, while
Simons had a reasonable expectation of privacy in his office, he
did not have such legitimate expectation of privacy with regard to
the files in his computer.
. . . To establish a violation of his rights under the Fourth
Amendment, Simons must first prove that he had a legitimate
expectation of privacy in the place searched or the item seized. . .
. And, in order to prove a legitimate expectation of privacy,
Simons must show that his subjective expectation of privacy is one
that society is prepared to accept as objectively reasonable. . . .
xxx xxx xxx
. . . We conclude that the remote searches of Simons' computer
did not violate his Fourth Amendment rights because, in light of
the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we
conclude that Simons' Fourth Amendment rights were not
violated by FBIS' retrieval of Simons' hard drive from his office.
Simons did not have a legitimate expectation of privacy with
regard to the record or fruits of his Internet use in light of the FBIS
Internet policy. The policy clearly stated that FBIS would "audit,
inspect, and/or monitor" employees' use of the Internet, including
all file transfers, all websites visited, and all e-mail messages, "as
deemed appropriate." . . . This policy placed employees on notice
that they could not reasonably expect that their Internet activity
would be private. Therefore, regardless of whether Simons
subjectively believed that the files he transferred from the
Internet were private, such a belief was not objectively reasonable
after FBIS notified him that it would be overseeing his Internet
use. . . . Accordingly, FBIS' actions in remotely searching and
seizing the computer files Simons downloaded from the Internet
did not violate the Fourth Amendment. DHcSIT
xxx xxx xxx
The burden is on Simons to prove that he had a legitimate
expectation of privacy in his office. . . . Here, Simons has shown
that he had an office that he did not share. As noted above, the
operational realities of Simons' workplace may have diminished
his legitimate privacy expectations. However, there is no evidence
in the record of any workplace practices, procedures, or
regulations that had such an effect. We therefore conclude that,
on this record, Simons possessed a legitimate expectation of
privacy in his office.
xxx xxx xxx
In the final analysis, this case involves an employee's supervisor
entering the employee's government office and retrieving a piece
of government equipment in which the employee had absolutely
no expectation of privacy — equipment that the employer knew
contained evidence of crimes committed by the employee in the
employee's office. This situation may be contrasted with one in
which the criminal acts of a government employee were unrelated
to his employment. Here, there was a conjunction of the conduct
that violated the employer's policy and the conduct that violated
the criminal law. We consider that FBIS' intrusion into Simons'
office to retrieve the hard drive is one in which a reasonable
employer might engage. . . . 42 (Citations omitted; emphasis
supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board
43 which involved the constitutionality of a provision in R.A. No.
9165 requiring mandatory drug testing of candidates for public
office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged
before the prosecutor's office with certain offenses, have also
recognized the fact that there may be such legitimate intrusion of
privacy in the workplace.
50
The first factor to consider in the matter of reasonableness is the
nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves
as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement.
The employees' privacy interest in an office is to a large extent
circumscribed by the company's work policies, the collective
bargaining agreement, if any, entered into by management and
the bargaining unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced;
and a degree of impingement upon such privacy has been upheld.
(Emphasis supplied.) ADCETI
Applying the analysis and principles announced in O'Connor and
Simons to the case at bar, we now address the following
questions: (1) Did petitioner have a reasonable expectation of
privacy in his office and computer files?; and (2) Was the search
authorized by the CSC Chair, the copying of the contents of the
hard drive on petitioner's computer reasonable in its inception
and scope?
In this inquiry, the relevant surrounding circumstances to consider
include "(1) the employee's relationship to the item seized; (2)
whether the item was in the immediate control of the employee
when it was seized; and (3) whether the employee took actions to
maintain his privacy in the item." These factors are relevant to
both the subjective and objective prongs of the reasonableness
inquiry, and we consider the two questions together. 44 Thus,
where the employee used a password on his computer, did not
share his office with co-workers and kept the same locked, he had
a legitimate expectation of privacy and any search of that space
and items located therein must comply with the Fourth
Amendment. 45
We answer the first in the negative. Petitioner failed to prove that
he had an actual (subjective) expectation of privacy either in his
office or government-issued computer which contained his
personal files. Petitioner did not allege that he had a separate
enclosed office which he did not share with anyone, or that his
office was always locked and not open to other employees or
visitors. Neither did he allege that he used passwords or adopted
any means to prevent other employees from accessing his
computer files. On the contrary, he submits that being in the
public assistance office of the CSC-ROIV, he normally would have
visitors in his office like friends, associates and even unknown
people, whom he even allowed to use his computer which to him
seemed a trivial request. He described his office as "full of people,
his friends, unknown people" and that in the past 22 years he had
been discharging his functions at the PALD, he is "personally
assisting incoming clients, receiving documents, drafting cases on
appeals, in charge of accomplishment report, Mamamayan Muna
Program, Public Sector Unionism, Correction of name,
accreditation of service, and hardly had anytime for himself alone,
that in fact he stays in the office as a paying customer." 46 Under
this scenario, it can hardly be deduced that petitioner had such
expectation of privacy that society would recognize as reasonable.
aASDTE
Moreover, even assuming arguendo, in the absence of allegation
or proof of the aforementioned factual circumstances, that
petitioner had at least a subjective expectation of privacy in his
computer as he claims, such is negated by the presence of policy
regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)"
explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil
Service Commission and may be used only for legitimate business
purposes.
2. Users shall be permitted access to Computer Resources
to assist them in the performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may
be revoked at any given time.
xxx xxx xxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of
the Commission shall not have an expectation of privacy in
anything they create, store, send, or receive on the computer
system. EScAHT
The Head of the Office for Recruitment, Examination
and Placement shall select and assign Users to handle the
confidential examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right
to privacy in anything they create, store, send, or receive on the
computer through the Internet or any other computer network.
Users understand that the CSC may use human or automated
means to monitor the use of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer
resource is not a personal property or for the exclusive use of a
User to whom a memorandum of receipt (MR) has been issued. It
can be shared or operated by other users. However, he is
accountable therefor and must insure its care and maintenance.
xxx xxx xxx
Passwords
12. Responsibility for passwords. Users shall be responsible
for safeguarding their passwords for access to the computer
system. Individual passwords shall not be printed, stored online,
or given to others. Users shall be responsible for all transactions
made using their passwords. No User may access the computer
system with another User's password or account.
13. Passwords do not imply privacy. Use of passwords to
gain access to the computer system or to encode particular files or
messages does not imply that Users have an expectation of
privacy in the material they create or receive on the computer
system. The Civil Service Commission has global passwords that
51
permit access to all materials stored on its networked computer
system regardless of whether those materials have been encoded
with a particular User's password. Only members of the
Commission shall authorize the application of the said global
passwords. TCEaDI
xxx xxx xxx 47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its
employees on notice that they have no expectation of privacy in
anything they create, store, send or receive on the office
computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This
implies that on-the-spot inspections may be done to ensure that
the computer resources were used only for such legitimate
business purposes.
One of the factors stated in O'Connor which are relevant in
determining whether an employee's expectation of privacy in the
workplace is reasonable is the existence of a workplace privacy
policy. 48 In one case, the US Court of Appeals Eighth Circuit held
that a state university employee has not shown that he had a
reasonable expectation of privacy in his computer files where the
university's computer policy, the computer user is informed not to
expect privacy if the university has a legitimate reason to conduct
a search. The user is specifically told that computer files, including
e-mail, can be searched when the university is responding to a
discovery request in the course of litigation. Petitioner employee
thus cannot claim a violation of Fourth Amendment rights when
university officials conducted a warrantless search of his computer
for work-related materials. 49
As to the second point of inquiry on the reasonableness of the
search conducted on petitioner's computer, we answer in the
affirmative.
The search of petitioner's computer files was conducted in
connection with investigation of work-related misconduct
prompted by an anonymous letter-complaint addressed to
Chairperson David regarding anomalies in the CSC-ROIV where the
head of the Mamamayan Muna Hindi Mamaya Na division is
supposedly "lawyering" for individuals with pending cases in the
CSC. Chairperson David stated in her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has
received several text messages from unknown sources adverting
to certain anomalies in Civil Service Commission Regional Office IV
(CSCRO IV) such as, staff working in another government agency,
"selling" cases and aiding parties with pending cases, all done
during office hours and involved the use of government
properties; SAEHaC
9. That said text messages were not investigated for lack of
any verifiable leads and details sufficient to warrant an
investigation;
10. That the anonymous letter provided the lead and details
as it pinpointed the persons and divisions involved in the alleged
irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of
irregularities happening in CSCRO IV and its effect on the integrity
of the Commission, I decided to form a team of Central Office staff
to back up the files in the computers of the Public Assistance and
Liaison Division (PALD) and Legal Division;
xxx xxx xxx 50
A search by a government employer of an employee's office is
justified at inception when there are reasonable grounds for
suspecting that it will turn up evidence that the employee is guilty
of work-related misconduct. 51 Thus, in the 2004 case decided by
the US Court of Appeals Eighth Circuit, it was held that where a
government agency's computer use policy prohibited electronic
messages with pornographic content and in addition expressly
provided that employees do not have any personal privacy rights
regarding their use of the agency information systems and
technology, the government employee had no legitimate
expectation of privacy as to the use and contents of his office
computer, and therefore evidence found during warrantless
search of the computer was admissible in prosecution for child
pornography. In that case, the defendant employee's computer
hard drive was first remotely examined by a computer
information technician after his supervisor received complaints
that he was inaccessible and had copied and distributed non-
work-related e-mail messages throughout the office. When the
supervisor confirmed that defendant had used his computer to
access the prohibited websites, in contravention of the express
policy of the agency, his computer tower and floppy disks were
taken and examined. A formal administrative investigation ensued
and later search warrants were secured by the police department.
The initial remote search of the hard drive of petitioner's
computer, as well as the subsequent warrantless searches was
held as valid under the O'Connor ruling that a public employer can
investigate work-related misconduct so long as any search is
justified at inception and is reasonably related in scope to the
circumstances that justified it in the first place. 52 CAHaST
Under the facts obtaining, the search conducted on petitioner's
computer was justified at its inception and scope. We quote with
approval the CSC's discussion on the reasonableness of its actions,
consistent as it were with the guidelines established by O'Connor:
Even conceding for a moment that there is no such administrative
policy, there is no doubt in the mind of the Commission that the
search of Pollo's computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as
enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity
as a government employer and that it was undertaken in
connection with an investigation involving a work-related
misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was
received recounting that a certain division chief in the CSCRO No.
IV was "lawyering" for parties having pending cases with the said
regional office or in the Commission. The nature of the imputation
was serious, as it was grievously disturbing. If, indeed, a CSC
employee was found to be furtively engaged in the practice of
"lawyering" for parties with pending cases before the Commission
52
would be a highly repugnant scenario, then such a case would
have shattering repercussions. It would undeniably cast clouds of
doubt upon the institutional integrity of the Commission as a
quasi-judicial agency, and in the process, render it less effective in
fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but
must be seen to be so, otherwise the general public would not
have any trust and confidence in it.
Considering the damaging nature of the accusation, the
Commission had to act fast, if only to arrest or limit any possible
adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted
involving the computer resources in the concerned regional office.
That it was the computers that were subjected to the search was
justified since these furnished the easiest means for an employee
to encode and store documents. Indeed, the computers would be
a likely starting point in ferreting out incriminating evidence.
Concomitantly, the ephemeral nature of computer files, that is,
they could easily be destroyed at a click of a button, necessitated
drastic and immediate action. Pointedly, to impose the need to
comply with the probable cause requirement would invariably
defeat the purpose of the work-related investigation. ISTECA
Worthy to mention, too, is the fact that the Commission effected
the warrantless search in an open and transparent manner.
Officials and some employees of the regional office, who
happened to be in the vicinity, were on hand to observe the
process until its completion. In addition, the respondent himself
was duly notified, through text messaging, of the search and the
concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search
done on computer assigned to Pollo was not, in any way, vitiated
with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed
at ensuring its operational effectiveness and efficiency by going
after the work-related misfeasance of its employees.
Consequently, the evidence derived from the questioned search
are deemed admissible. 53
Petitioner's claim of violation of his constitutional right to privacy
must necessarily fail. His other argument invoking the privacy of
communication and correspondence under Section 3 (1), Article III
of the 1987 Constitution is also untenable considering the
recognition accorded to certain legitimate intrusions into the
privacy of employees in the government workplace under the
aforecited authorities. We likewise find no merit in his contention
that O'Connor and Simons are not relevant because the present
case does not involve a criminal offense like child pornography. As
already mentioned, the search of petitioner's computer was
justified there being reasonable ground for suspecting that the
files stored therein would yield incriminating evidence relevant to
the investigation being conducted by CSC as government
employer of such misconduct subject of the anonymous
complaint. This situation clearly falls under the exception to the
warrantless requirement in administrative searches defined in
O'Connor.
The Court is not unaware of our decision in Anonymous Letter-
Complaint against Atty. Miguel Morales, Clerk of Court,
Metropolitan Trial Court of Manila 54 involving a branch clerk
(Atty. Morales) who was investigated on the basis of an
anonymous letter alleging that he was consuming his working
hours filing and attending to personal cases, using office supplies,
equipment and utilities. The OCA conducted a spot investigation
aided by NBI agents. The team was able to access Atty. Morales'
personal computer and print two documents stored in its hard
drive, which turned out to be two pleadings, one filed in the CA
and another in the RTC of Manila, both in the name of another
lawyer. Atty. Morales' computer was seized and taken in custody
of the OCA but was later ordered released on his motion, but with
order to the MISO to first retrieve the files stored therein. The
OCA disagreed with the report of the Investigating Judge that
there was no evidence to support the charge against Atty.
Morales as no one from the OCC personnel who were interviewed
would give a categorical and positive statement affirming the
charges against Atty. Morales, along with other court personnel
also charged in the same case. The OCA recommended that Atty.
Morales should be found guilty of gross misconduct. The Court En
Banc held that while Atty. Morales may have fallen short of the
exacting standards required of every court employee, the Court
cannot use the evidence obtained from his personal computer
against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence
to support the claim of OCA that they were able to obtain the
subject pleadings with the consent of Atty. Morales, as in fact the
latter immediately filed an administrative case against the persons
who conducted the spot investigation, questioning the validity of
the investigation and specifically invoking his constitutional right
against unreasonable search and seizure. And as there is no other
evidence, apart from the pleadings, retrieved from the unduly
confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the
charges against him for insufficiency of evidence. TacADE
The above case is to be distinguished from the case at bar
because, unlike the former which involved a personal computer of
a court employee, the computer from which the personal files of
herein petitioner were retrieved is a government-issued
computer, hence government property the use of which the CSC
has absolute right to regulate and monitor. Such relationship of
the petitioner with the item seized (office computer) and other
relevant factors and circumstances under American Fourth
Amendment jurisprudence, notably the existence of CSC MO 10,
S. 2007 on Computer Use Policy, failed to establish that petitioner
had a reasonable expectation of privacy in the office computer
assigned to him.
Having determined that the personal files copied from the office
computer of petitioner are admissible in the administrative case
against him, we now proceed to the issue of whether the CSC was
correct in finding the petitioner guilty of the charges and
dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial
agencies, like the CSC, are accorded not only respect but even
finality if such findings are supported by substantial evidence.
53
Substantial evidence is such amount of relevant evidence which a
reasonable mind might accept as adequate to support a
conclusion, even if other equally reasonable minds might
conceivably opine otherwise. 55
The CSC based its findings on evidence consisting of a substantial
number of drafts of legal pleadings and documents stored in his
office computer, as well as the sworn affidavits and testimonies of
the witnesses it presented during the formal investigation.
According to the CSC, these documents were confirmed to be
similar or exactly the same content-wise with those on the case
records of some cases pending either with CSCRO No. IV, CSC-NCR
or the Commission Proper. There were also substantially similar
copies of those pleadings filed with the CA and duly furnished the
Commission. Further, the CSC found the explanation given by
petitioner, to the effect that those files retrieved from his
computer hard drive actually belonged to his lawyer friends
Estrellado and Solosa whom he allowed the use of his computer
for drafting their pleadings in the cases they handle, as
implausible and doubtful under the circumstances. We hold that
the CSC's factual finding regarding the authorship of the subject
pleadings and misuse of the office computer is well-supported by
the evidence on record, thus: DcCIAa
It is also striking to note that some of these documents were in
the nature of pleadings responding to the orders, decisions or
resolutions of these offices or directly in opposition to them such
as a petition for certiorari or a motion for reconsideration of CSC
Resolution. This indicates that the author thereof knowingly and
willingly participated in the promotion or advancement of the
interests of parties contrary or antagonistic to the Commission.
Worse, the appearance in one of the retrieved documents the
phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends
plausibility to an inference that the preparation or drafting of the
legal pleadings was pursued with less than a laudable motivation.
Whoever was responsible for these documents was simply doing
the same for the money — a "legal mercenary" selling or
purveying his expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the
computer of Pollo raises the presumption that he was the author
thereof. This is because he had a control of the said computer.
More significantly, one of the witnesses, Margarita Reyes,
categorically testified seeing a written copy of one of the
pleadings found in the case records lying on the table of the
respondent. This was the Petition for Review in the case of
Estrellado addressed to the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly
undermining the interest of the Commission, his very own
employer.
To deflect any culpability, Pollo would, however, want the
Commission to believe that the documents were the personal files
of some of his friends, including one Attorney Ponciano Solosa,
who incidentally served as his counsel of record during the formal
investigation of this case. In fact, Atty. Solosa himself executed a
sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness,
Reyes, who testified that during her entire stay in the PALD, she
never saw Atty. Solosa using the computer assigned to the
respondent. Reyes more particularly stated that she worked in
close proximity with Pollo and would have known if Atty. Solosa,
whom she personally knows, was using the computer in question.
Further, Atty. Solosa himself was never presented during the
formal investigation to confirm his sworn statement such that the
same constitutes self-serving evidence unworthy of weight and
credence. The same is true with the other supporting affidavits,
which Pollo submitted. cAHIST
At any rate, even admitting for a moment the said contention of
the respondent, it evinces the fact that he was unlawfully
authorizing private persons to use the computer assigned to him
for official purpose, not only once but several times gauging by
the number of pleadings, for ends not in conformity with the
interests of the Commission. He was, in effect, acting as a
principal by indispensable cooperation . . . Or at the very least, he
should be responsible for serious misconduct for repeatedly
allowing CSC resources, that is, the computer and the electricity,
to be utilized for purposes other than what they were officially
intended.
Further, the Commission cannot lend credence to the posturing of
the appellant that the line appearing in one of the documents,
"Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke
between the person alluded to therein, Eric N. Estrellado, and his
counsel, Atty. Solosa, and not indicative of anything more sinister.
The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer
assigned to the respondent, unless he had something to do with
it? 56
Petitioner assails the CA in not ruling that the CSC should not have
entertained an anonymous complaint since Section 8 of CSC
Resolution No. 99-1936 (URACC) requires a verified complaint:
Rule II — Disciplinary Cases
SEC. 8. Complaint. — A complaint against a civil service official
or employee shall not be given due course unless it is in writing
and subscribed and sworn to by the complainant. However, in
cases initiated by the proper disciplining authority, the complaint
need not be under oath.
No anonymous complaint shall be entertained unless there is
obvious truth or merit to the allegation therein or supported by
documentary or direct evidence, in which case the person
complained of may be required to comment. DSEIcT
xxx xxx xxx
We need not belabor this point raised by petitioner. The
administrative complaint is deemed to have been initiated by the
CSC itself when Chairperson David, after a spot inspection and
search of the files stored in the hard drive of computers in the two
divisions adverted to in the anonymous letter — as part of the
disciplining authority's own fact-finding investigation and
information-gathering — found a prima facie case against the
petitioner who was then directed to file his comment. As this
Court held in Civil Service Commission v. Court of Appeals 57 —
54
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O.
No. 292 and Section 8, Rule II of Uniform Rules on Administrative
Cases in the Civil Service, a complaint may be initiated against a
civil service officer or employee by the appropriate disciplining
authority, even without being subscribed and sworn to.
Considering that the CSC, as the disciplining authority for Dumlao,
filed the complaint, jurisdiction over Dumlao was validly acquired.
(Emphasis supplied.)
As to petitioner's challenge on the validity of CSC OM 10, S. 2002
(CUP), the same deserves scant consideration. The alleged
infirmity due to the said memorandum order having been issued
solely by the CSC Chair and not the Commission as a collegial
body, upon which the dissent of Commissioner Buenaflor is partly
anchored, was already explained by Chairperson David in her
Reply to the Addendum to Commissioner Buenaflor's previous
memo expressing his dissent to the actions and disposition of the
Commission in this case. According to Chairperson David, said
memorandum order was in fact exhaustively discussed, provision
by provision in the January 23, 2002 Commission Meeting,
attended by her and former Commissioners Erestain, Jr. and
Valmores. Hence, the Commission En Banc at the time saw no
need to issue a Resolution for the purpose and further because
the CUP being for internal use of the Commission, the practice
had been to issue a memorandum order. 58 Moreover, being an
administrative rule that is merely internal in nature, or which
regulates only the personnel of the CSC and not the public, the
CUP need not be published prior to its effectivity. 59
In fine, no error or grave abuse of discretion was committed by
the CA in affirming the CSC's ruling that petitioner is guilty of
grave misconduct, dishonesty, conduct prejudicial to the best
interest of the service, and violation of R.A. No. 6713. The gravity
of these offenses justified the imposition on petitioner of the
ultimate penalty of dismissal with all its accessory penalties,
pursuant to existing rules and regulations. acHCSD
WHEREFORE, the petition for review on certiorari is DENIED. The
Decision dated October 11, 2007 and Resolution dated February
29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are
AFFIRMED.
With costs against the petitioner.
SO ORDERED.
[G.R. No. 203335. April 22, 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.
[G.R. No. 203299. April 22, 2014.]
LOUIS "BAROK" C. BIRAOGO, petitioner, vs. NATIONAL BUREAU
OF INVESTIGATION and PHILIPPINE NATIONAL POLICE,
respondents.
[G.R. No. 203306. April 22, 2014.]
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.
[G.R. No. 203359. April 22, 2014.]
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.
[G.R. No. 203378. April 22, 2014.]
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.
[G.R. No. 203391. April 22, 2014.]
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.
[G.R. No. 203407. April 22, 2014.]
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
55
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.
[G.R. No. 203440. April 22, 2014.]
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.
[G.R. No. 203453. April 22, 2014.]
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 e-PETITION
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.
[G.R. No. 203454. April 22, 2014.]
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, petitioners,
vs. THE HON. SECRETARY OF JUSTICE, THE HON. SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, respondents.
[G.R. No. 203469. April 22, 2014.]
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.
[G.R. No. 203501. April 22, 2014.]
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.
[G.R. No. 203509. April 22, 2014.]
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES,
petitioner, vs. THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR.,
respondent.
[G.R. No. 203515. April 22, 2014.]
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.
[G.R. No. 203518. April 22, 2014.]
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. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW B.
56
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.
RESOLUTION
ABAD, J p:
A number of petitioners seek reconsideration of the Court's
February 18, 2014 Decision that declared invalid and
unconstitutional certain provisions of Republic Act 10125 * or the
Cybercrime Prevention Act of 2012 and upheld the validity of the
others. The respondents, represented by the Office of the Solicitor
General, also seek reconsideration of portions of that decision.
After going over their motions, however, the Court sees no
substantial arguments from either side to warrant the reversal of
its February 18, 2014 Decision. EDHTAI
The point about the legislative bicameral committee's insertions
of certain provisions that were neither in the House bill nor in the
Senate bill is something that the Court is not inclined to
investigate since insertions are within the power of those
committees to make so long as the passage of the law complies
with the constitutional requirements. 1 The Cybercrime
Prevention Act went through both houses and they approved it.
Any issue concerning alleged non-compliance with the governing
rules of both houses regarding committee insertions have to be
internally resolved by each house.
In any event, the Court will briefly address certain aspects of the
decision that drew the most objections. ScHAIT
Section 6 of the cybercrime law imposes penalties that are one
degree higher when the crimes defined in the Revised Penal Code
and certain special laws are committed with the use of
information and communication technologies (ICT). Some of the
petitioners insist that Section 6 is invalid since it produces an
unusual chilling effect on users of cyberspace that would hinder
free expression.
Petitioner Bloggers and Netizens for Democracy insist that Section
6 cannot stand in the absence of a definition of the term
"information and communication technology". 2 But petitioner
seems to forget the basic tenet that statutes should not be read in
isolation from one another. The parameters of that ICT exist in
many other laws. Indeed those parameters have been used as
basis for establishing government systems and classifying
evidence. 3 These along with common usage provide the needed
boundary within which the law may be applied.
The Court had ample opportunity to consider the proposition that
Section 6 violates the equal protection clause via the parties'
pleadings, oral arguments, and memoranda. But, as the Decision
stressed, the power to fix the penalties for violations of penal
laws, like the cybercrime law, exclusively belongs to Congress.
cEAIHa
In any event, Section 6 of the cybercrime law merely makes the
commission of existing crimes through the internet a qualifying
circumstance that raises by one degree the penalties
corresponding to such crimes. This is not at all arbitrary since a
substantial distinction exists between crimes committed through
the use of ICT and similar crimes committed using conventional
means.
The United Nations Special Rapporteur, 4 Frank La Rue,
acknowledged the material distinction. He pointed out that "[t]he
vast potential and benefits of the Internet are rooted in its unique
characteristics, such as its speed, worldwide reach and relative
anonymity." For this reason, while many governments advocate
freedom online, they recognize the necessity to regulate certain
aspects of the use of this media to protect the most vulnerable. 5
Not infrequently, certain users of the technology have found
means to evade being identified and for this reason have been
emboldened to reach far more victims or cause greater harm or
both. It is, therefore, logical for Congress to consider as
aggravating the deliberate use of available ICT by those who ply
their wicked trades. TAIEcS
Compared to traditional crimes, cybercrimes are more perverse.
In traditional estafa for example, the offender could reach his
victim only at a particular place and a particular time. It is rare
that he could consummate his crime without exposing himself to
detection and prosecution. Fraud online, however, crosses
national boundaries, generally depriving its victim of the means to
obtain reparation of the wrong done and seek prosecution and
punishment of the absent criminal. Cybercriminals enjoy the
advantage of anonymity, like wearing a mask during a heist.
Petitioners share the Chief Justice's concern for the overall impact
of those penalties, being one degree higher than those imposed
on ordinary crimes, including the fact that the prescriptive periods
for the equivalent cybercrimes have become longer. 6 ATSIED
Prescription is not a matter of procedure over which the Court has
something to say. Rather, it is substantive law since it assumes the
existence of an authority to punish a wrong, which authority the
Constitution vests in Congress alone. Thus, there is no question
that Congress may provide a variety of periods for the prescription
of offenses as it sees fit. What it cannot do is pass a law that
extends the periods of prescription to impact crimes committed
before its passage. 7
It is pointed out that the legislative discretion to fix the penalty for
crimes is not absolute especially when this discretion is exercised
in violation of the freedom of expression. The increase in the
57
penalty for online libel creates, according to this view, greater and
unusual chilling effect that violates the protection afforded to
such freedom.
But what the stiffer penalty for online libel truly targets are those
who choose to use this most pervasive of media without qualms,
tearing down the reputation of private individuals who value their
names and community standing. The law does not remotely and
could not have any chilling effect on the right of the people to
disagree, a most protected right, the exercise of which does not
constitute libel. cTCEIS
The majority of the movants believe that the Court's decision
upholding the constitutionality of Section 4 (c) (4), which penalizes
online libel, effectively tramples upon the right to free expression.
But libel is not a protected speech. There is no freedom to unjustly
destroy the reputation of a decent woman by publicly claiming
that she is a paid prostitute.
As early as 1912, the Court held that libel is a form of expression
not protected by the Constitution. 8 Libel, like obscenity, belongs
to those forms of speeches that have never attained
Constitutional protection and are considered outside the realm of
protected freedom. As explained by the US Supreme Court in
Champlinsky v. New Hampsire: 9
Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of
free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or "fighting" words — those which, by
their very utterance, inflict injury or tend to incite an immediate
breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social
interest in order and morality. "Resort to epithets or personal
abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a
criminal act would raise no question under that instrument."
(Emphasis supplied) ICDSca
The constitutional guarantee against prior restraint and
subsequent punishment, the jurisprudential requirement of
"actual malice," and the legal protection afforded by "privilege
communications" all ensure that protected speech remains to be
protected and guarded. As long as the expression or speech falls
within the protected sphere, it is the solemn duty of courts to
ensure that the rights of the people are protected.
At bottom, the deepest concerns of the movants seem to be the
fact that the government seeks to regulate activities in the
internet at all. For them, the Internet is a place where a everyone
should be free to do and say whatever he or she wants. But that is
anarchical. Any good thing can be converted to evil use if there
are no laws to prohibit such use. Indeed, both the United States
and the Philippines have promulgated laws that regulate the use
of and access to the Internet. 10 HCaDET

The movants argue that Section 4 (c) (4) is both vague and
overbroad. But, again, online libel is not a new crime. It is
essentially the old crime of libel found in the 1930 Revised Penal
Code and transposed to operate in the cyberspace. Consequently,
the mass of jurisprudence that secures the freedom of expression
from its reach applies to online libel. Any apprehended vagueness
in its provisions has long been settled by precedents.

The parties' other arguments in their respective motions for

reconsideration are mere reiterations that the Court already
considered and ruled upon when it promulgated its earlier
Decision.

WHEREFORE, the Court DENIES with finality the various motions

for reconsideration that both the petitioners and the respondents,
represented by the Office of the Solicitor General, filed for lack of
merit.

SO ORDERED. aEHIDT

58

THIRD DIVISION
[G.R. No. 202666. September 29, 2014.]
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID
SUZARA, petitioners, vs. ST. THERESA'S COLLEGE, MYLENE RHEZA
T. ESCUDERO, and JOHN DOES, respondents.
DECISION
VELASCO, JR., J p:
The individual's desire for privacy is never absolute, since
participation in society is an equally powerful desire. Thus each
individual is continually engaged in a personal adjustment process
in which he balances the desire for privacy with the desire for
disclosure and communication of himself to others, in light of the
environmental conditions and social norms set by the society in
which he lives.
~ Alan Westin, Privacy and Freedom (1967)
photos was not confined to the girls' Facebook friends, 4 but
were, in fact, viewable by any Facebook user. 5
Upon discovery, Escudero reported the matter and, through one
of her student's Facebook page, showed the photos to Kristine
Rose Tigol (Tigol), STC's Discipline-in-Charge, for appropriate
action. Thereafter, following an investigation, STC found the
identified students to have deported themselves in a manner
proscribed by the school's Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school
campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholic beverages in public
places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts
obscenity; contains sexually suggestive messages, language or
symbols; and

The Case 6. Posing and uploading pictures on the Internet that entail
ample body exposure.
Before Us is a Petition for Review on Certiorari under Rule 45 of
the Rules of Court, in relation to Section 19 of A.M. No. 08-1-16- On March 1, 2012, Julia, Julienne, Angela, and the other students
SC, 1 otherwise known as the "Rule on the Writ of Habeas Data." in the pictures in question, reported, as required, to the office of
Petitioners herein assail the July 27, 2012 Decision 2 of the Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC's high school
Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. principal and ICM 6 Directress. They claimed that during the
19251-CEB, which dismissed their habeas data petition. meeting, they were castigated and verbally abused by the STC
officials present in the conference, including Assistant Principal
The Facts
Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is
more, Sr. Purisima informed their parents the following day that,
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne),
as part of their penalty, they are barred from joining the
both minors, were, during the period material, graduating high
commencement exercises scheduled on March 30, 2012. EDHCSI
school students at St. Theresa's College (STC), Cebu City.
Sometime in January 2012, while changing into their swimsuits for
A week before graduation, or on March 23, 2012, Angela's
a beach party they were about to attend, Julia and Julienne, along
mother, Dr. Armenia M. Tan (Tan), filed a Petition for Injunction
with several others, took digital pictures of themselves clad only in
and Damages before the RTC of Cebu City against STC, et al.,
their undergarments. These pictures were then uploaded by
docketed as Civil Case No. CEB-38594. 7 In it, Tan prayed that
Angela Lindsay Tan (Angela) on her Facebook 3 profile. ITADaE
defendants therein be enjoined from implementing the sanction
that precluded Angela from joining the commencement exercises.
Back at the school, Mylene Rheza T. Escudero (Escudero), a
On March 25, 2012, petitioner Rhonda Ave Vivares (Vivares), the
computer teacher at STC's high school department, learned from
mother of Julia, joined the fray as an intervenor.
her students that some seniors at STC posted pictures online,
depicting themselves from the waist up, dressed only in
On March 28, 2012, defendants in Civil Case No. CEB-38594 filed
brassieres. Escudero then asked her students if they knew who
their memorandum, containing printed copies of the photographs
the girls in the photos are. In turn, they readily identified Julia,
in issue as annexes. That same day, the RTC issued a temporary
Julienne, and Chloe Lourdes Taboada (Chloe), among others.
restraining order (TRO) allowing the students to attend the
graduation ceremony, to which STC filed a motion for
Using STC's computers, Escudero's students logged in to their
reconsideration.
respective personal Facebook accounts and showed her photos of
the identified students, which include: (a) Julia and Julienne
Despite the issuance of the TRO, STC, nevertheless, barred the
drinking hard liquor and smoking cigarettes inside a bar; and (b)
sanctioned students from participating in the graduation rites,
Julia and Julienne along the streets of Cebu wearing articles of
arguing that, on the date of the commencement exercises, its
clothing that show virtually the entirety of their black brassieres.
adverted motion for reconsideration on the issuance of the TRO
What is more, Escudero's students claimed that there were times
remained unresolved.
when access to or the availability of the identified students'

59
Thereafter, petitioners filed before the RTC a Petition for the
Issuance of a Writ of Habeas Data, docketed as SP. Proc. No.
19251-CEB 8 on the basis of the following considerations:
1. The photos of their children in their undergarments
(e.g., bra) were taken for posterity before they changed into their
swimsuits on the occasion of a birthday beach party;
2. The privacy setting of their children's Facebook accounts
was set at "Friends Only." They, thus, have a reasonable
expectation of privacy which must be respected.
3. Respondents, being involved in the field of education,
knew or ought to have known of laws that safeguard the right to
privacy. Corollarily, respondents knew or ought to have known
that the girls, whose privacy has been invaded, are the victims in
this case, and not the offenders. Worse, after viewing the photos,
the minors were called "immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus,
cannot be used and reproduced without their consent. Escudero,
however, violated their rights by saving digital copies of the
photos and by subsequently showing them to STC's officials. Thus,
the Facebook accounts of petitioners' children were intruded
upon; IacHAE
5. The intrusion into the Facebook accounts, as well as the
copying of information, data, and digital images happened at STC's
Computer Laboratory; and
6. All the data and digital images that were extracted were
boldly broadcasted by respondents through their memorandum
submitted to the RTC in connection with Civil Case No. CEB-38594.
To petitioners, the interplay of the foregoing constitutes an
invasion of their children's privacy and, thus, prayed that: (a) a
writ of habeas data be issued; (b) respondents be ordered to
surrender and deposit with the court all soft and printed copies of
the subject data before or at the preliminary hearing; and (c) after
trial, judgment be rendered declaring all information, data, and
digital images accessed, saved or stored, reproduced, spread and
used, to have been illegally obtained in violation of the children's
right to privacy.
Finding the petition sufficient in form and substance, the RTC,
through an Order dated July 5, 2012, issued the writ of habeas
data. Through the same Order, herein respondents were directed
to file their verified written return, together with the supporting
affidavits, within five (5) working days from service of the writ.
In time, respondents complied with the RTC's directive and filed
their verified written return, laying down the following grounds
for the denial of the petition, viz.: (a) petitioners are not the
proper parties to file the petition; (b) petitioners are engaging in
forum shopping; (c) the instant case is not one where a writ of
habeas data may issue; and (d) there can be no violation of their
right to privacy as there is no reasonable expectation of privacy on
Facebook.
Ruling of the Regional Trial Court
60
On July 27, 2012, the RTC rendered a Decision dismissing the
petition for habeas data. The dispositive portion of the Decision
pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is
hereby DISMISSED.
The parties and media must observe the aforestated
confidentiality.
xxx xxx xxx
SO ORDERED. 9 SEcTHA
To the trial court, petitioners failed to prove the existence of an
actual or threatened violation of the minors' right to privacy, one
of the preconditions for the issuance of the writ of habeas data.
Moreover, the court a quo held that the photos, having been
uploaded on Facebook without restrictions as to who may view
them, lost their privacy in some way. Besides, the RTC noted, STC
gathered the photographs through legal means and for a legal
purpose, that is, the implementation of the school's policies and
rules on discipline.
Not satisfied with the outcome, petitioners now come before this
Court pursuant to Section 19 of the Rule on Habeas Data. 10
The Issues
The main issue to be threshed out in this case is whether or not a
writ of habeas data should be issued given the factual milieu.
Crucial in resolving the controversy, however, is the pivotal point
of whether or not there was indeed an actual or threatened
violation of the right to privacy in the life, liberty, or security of
the minors involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the
availability of the Writ of Habeas Data
The writ of habeas data is a remedy available to any person whose
right to privacy in life, liberty or security is violated or threatened
by an unlawful act or omission of a public official or employee, or
of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party. 11 It is
an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of
an individual, and to provide a forum to enforce one's right to the
truth and to informational privacy. It seeks to protect a person's
right to control information regarding oneself, particularly in
instances in which such information is being collected through
unlawful means in order to achieve unlawful ends. 12 IaTSED
In developing the writ of habeas data, the Court aimed to protect
an individual's right to informational privacy, among others. A
comparative law scholar has, in fact, defined habeas data as "a
procedure designed to safeguard individual freedom from abuse
in the information age." 13 The writ, however, will not issue on
the basis merely of an alleged unauthorized access to information
about a person. Availment of the writ requires the existence of a
nexus between the right to privacy on the one hand, and the right
to life, liberty or security on the other. 14 Thus, the existence of a
person's right to informational privacy and a showing, at least by
substantial evidence, of an actual or threatened violation of the
right to privacy in life, liberty or security of the victim are
indispensable before the privilege of the writ may be extended. 15
Without an actionable entitlement in the first place to the right to
informational privacy, a habeas data petition will not prosper.
Viewed from the perspective of the case at bar, this requisite begs
this question: given the nature of an online social network (OSN)
— (1) that it facilitates and promotes real-time interaction among
millions, if not billions, of users, sans the spatial barriers, 16
bridging the gap created by physical space; and (2) that any
information uploaded in OSNs leaves an indelible trace in the
provider's databases, which are outside the control of the end-
users — is there a right to informational privacy in OSN activities
of its users? Before addressing this point, We must first resolve
the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of
extralegal killings and enforced disappearances
Contrary to respondents' submission, the Writ of Habeas Data was
not enacted solely for the purpose of complementing the Writ of
Amparo in cases of extralegal killings and enforced
disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. — Any aggrieved party may file a petition
for the writ of habeas data. However, in cases of extralegal killings
and enforced disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity or
affinity, in default of those mentioned in the preceding paragraph.
(emphasis supplied)
Had the framers of the Rule intended to narrow the operation of
the writ only to cases of extralegal killings or enforced
disappearances, the above underscored portion of Section 2,
reflecting a variance of habeas data situations, would not have
been made. AcICHD
Habeas data, to stress, was designed "to safeguard individual
freedom from abuse in the information age." 17 As such, it is
erroneous to limit its applicability to extralegal killings and
enforced disappearances only. In fact, the annotations to the Rule
prepared by the Committee on the Revision of the Rules of Court,
after explaining that the Writ of Habeas Data complements the
Writ of Amparo, pointed out that:
61
The writ of habeas data, however, can be availed of as an
independent remedy to enforce one's right to privacy, more
specifically the right to informational privacy. The remedies
against the violation of such right can include the updating,
rectification, suppression or destruction of the database or
information or files in possession or in control of respondents. 18
(emphasis Ours)
Clearly then, the privilege of the Writ of Habeas Data may also be
availed of in cases outside of extralegal killings and enforced
disappearances.
b. Meaning of "engaged" in the gathering, collecting or
storing of data or information
Respondents' contention that the habeas data writ may not issue
against STC, it not being an entity engaged in the gathering,
collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party, while
valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas
data protection shall be available only against abuses of a person
or entity engaged in the business of gathering, storing, and
collecting of data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. — The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and
correspondence of the aggrieved party. (emphasis Ours)
The provision, when taken in its proper context, as a whole,
irresistibly conveys the idea that habeas data is a protection
against unlawful acts or omissions of public officials and of private
individuals or entities engaged in gathering, collecting, or storing
data about the aggrieved party and his or her correspondences, or
about his or her family. Such individual or entity need not be in
the business of collecting or storing data. ATcEDS
To "engage" in something is different from undertaking a business
endeavour. To "engage" means "to do or take part in something."
19 It does not necessarily mean that the activity must be done in
pursuit of a business. What matters is that the person or entity
must be gathering, collecting or storing said data or information
about the aggrieved party or his or her family. Whether such
undertaking carries the element of regularity, as when one
pursues a business, and is in the nature of a personal endeavour,
for any other reason or even for no reason at all, is immaterial and
such will not prevent the writ from getting to said person or
entity.
To agree with respondents' above argument, would mean unduly
limiting the reach of the writ to a very small group, i.e., private
persons and entities whose business is data gathering and
storage, and in the process decreasing the effectiveness of the
writ as an instrument designed to protect a right which is easily
violated in view of rapid advancements in the information and
communications technology — a right which a great majority of
the users of technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now
proceed to the core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacy has, through time, greatly evolved, with
technological advancements having an influential part therein.
This evolution was briefly recounted in former Chief Justice
Reynato S. Puno's speech, The Common Right to Privacy, 20
where he explained the three strands of the right to privacy, viz.:
(1) locational or situational privacy; 21 (2) informational privacy;
and (3) decisional privacy. 22 Of the three, what is relevant to the
case at bar is the right to informational privacy — usually defined
as the right of individuals to control information about
themselves. 23
With the availability of numerous avenues for information
gathering and data sharing nowadays, not to mention each
system's inherent vulnerability to attacks and intrusions, there is
more reason that every individual's right to control said flow of
information should be protected and that each individual should
have at least a reasonable expectation of privacy in cyberspace.
Several commentators regarding privacy and social networking
sites, however, all agree that given the millions of OSN users, "[i]n
this [Social Networking] environment, privacy is no longer
grounded in reasonable expectations, but rather in some
theoretical protocol better known as wishful thinking." 24 TIcAaH
It is due to this notion that the Court saw the pressing need to
provide for judicial remedies that would allow a summary hearing
of the unlawful use of data or information and to remedy possible
violations of the right to privacy. 25 In the same vein, the South
African High Court, in its Decision in the landmark case, H v. W, 26
promulgated on January 30, 2013, recognized that "[t]he law has
to take into account the changing realities not only technologically
but also socially or else it will lose credibility in the eyes of the
people. . . . It is imperative that the courts respond appropriately
to changing times, acting cautiously and with wisdom." Consistent
with this, the Court, by developing what may be viewed as the
Philippine model of the writ of habeas data, in effect, recognized
that, generally speaking, having an expectation of informational
privacy is not necessarily incompatible with engaging in
cyberspace activities, including those that occur in OSNs.
The question now though is up to what extent is the right to
privacy protected in OSNs? Bear in mind that informational
privacy involves personal information. At the same time, the very
purpose of OSNs is socializing — sharing a myriad of information,
27 some of which would have otherwise remained personal.
b. Facebook's Privacy Tools: a response to the clamor for
privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability
to interact and to stay connected to other members of the same
62
or different social media platform through the sharing of statuses,
photos, videos, among others, depending on the services provided
by the site. It is akin to having a room filled with millions of
personal bulletin boards or "walls," the contents of which are
under the control of each and every user. In his or her bulletin
board, a user/owner can post anything — from text, to pictures,
to music and videos — access to which would depend on whether
he or she allows one, some or all of the other users to see his or
her posts. Since gaining popularity, the OSN phenomenon has
paved the way to the creation of various social networking sites,
including the one involved in the case at bar, www.facebook.com
(Facebook), which, according to its developers, people use "to
stay connected with friends and family, to discover what's going
on in the world, and to share and express what matters to them."
28 aHSCcE
Facebook connections are established through the process of
"friending" another user. By sending a "friend request," the user
invites another to connect their accounts so that they can view
any and all "Public" and "Friends Only" posts of the other. Once
the request is accepted, the link is established and both users are
permitted to view the other user's "Public" or "Friends Only"
posts, among others. "Friending," therefore, allows the user to
form or maintain one-to-one relationships with other users,
whereby the user gives his or her "Facebook friend" access to his
or her profile and shares certain information to the latter. 29
To address concerns about privacy, 30 but without defeating its
purpose, Facebook was armed with different privacy tools
designed to regulate the accessibility of a user's profile 31 as well
as information uploaded by the user. In H v. W, 32 the South
Gauteng High Court recognized this ability of the users to
"customize their privacy settings," but did so with this caveat:
"Facebook states in its policies that, although it makes every effort
to protect a user's information, these privacy settings are not fool-
proof." 33
For instance, a Facebook user can regulate the visibility and
accessibility of digital images (photos), posted on his or her
personal bulletin or "wall," except for the user's profile picture
and ID, by selecting his or her desired privacy setting:
(a) Public — the default setting; every Facebook user can
view the photo;
(b) Friends of Friends — only the user's Facebook friends
and their friends can view the photo;
(b) Friends — only the user's Facebook friends can view the
photo;
(c) Custom — the photo is made visible only to particular
friends and/or networks of the Facebook user; and
(d) Only Me — the digital image can be viewed only by the
user.
The foregoing are privacy tools, available to Facebook users,
designed to set up barriers to broaden or limit the visibility of his
or her specific profile content, statuses, and photos, among
others, from another user's point of view. In other words,
Facebook extends its users an avenue to make the availability of
their Facebook activities reflect their choice as to "when and to
what extent to disclose facts about [themselves] — and to put
others in the position of receiving such confidences." 34 Ideally,
the selected setting will be based on one's desire to interact with
others, coupled with the opposing need to withhold certain
information as well as to regulate the spreading of his or her
personal information. Needless to say, as the privacy setting
becomes more limiting, fewer Facebook users can view that user's
particular post. ISDCHA
STC did not violate petitioners' daughters' right to privacy
Without these privacy settings, respondents' contention that
there is no reasonable expectation of privacy in Facebook would,
in context, be correct. However, such is not the case. It is through
the availability of said privacy tools that many OSN users are said
to have a subjective expectation that only those to whom they
grant access to their profile will view the information they post or
upload thereto. 35
This, however, does not mean that any Facebook user
automatically has a protected expectation of privacy in all of his or
her Facebook activities.
Before one can have an expectation of privacy in his or her OSN
activity, it is first necessary that said user, in this case the children
of petitioners, manifest the intention to keep certain posts
private, through the employment of measures to prevent access
thereto or to limit its visibility. 36 And this intention can
materialize in cyberspace through the utilization of the OSN's
privacy tools. In other words, utilization of these privacy tools is
the manifestation, in cyber world, of the user's invocation of his or
her right to informational privacy. 37
Therefore, a Facebook user who opts to make use of a privacy tool
to grant or deny access to his or her post or profile detail should
not be denied the informational privacy right which necessarily
accompanies said choice. 38 Otherwise, using these privacy tools
would be a feckless exercise, such that if, for instance, a user
uploads a photo or any personal information to his or her
Facebook page and sets its privacy level at "Only Me" or a custom
list so that only the user or a chosen few can view it, said photo
would still be deemed public by the courts as if the user never
chose to limit the photo's visibility and accessibility. Such position,
if adopted, will not only strip these privacy tools of their function
but it would also disregard the very intention of the user to keep
said photo or information within the confines of his or her private
space.
We must now determine the extent that the images in question
were visible to other Facebook users and whether the disclosure
was confidential in nature. In other words, did the minors limit the
disclosure of the photos such that the images were kept within
their zones of privacy? This determination is necessary in resolving
the issue of whether the minors carved out a zone of privacy
when the photos were uploaded to Facebook so that the images
will be protected against unauthorized access and disclosure.
cCHITA
63
Petitioners, in support of their thesis about their children's privacy
right being violated, insist that Escudero intruded upon their
children's Facebook accounts, downloaded copies of the pictures
and showed said photos to Tigol. To them, this was a breach of
the minors' privacy since their Facebook accounts, allegedly, were
under "very private" or "Only Friends" setting safeguarded with a
password. 39 Ultimately, they posit that their children's disclosure
was only limited since their profiles were not open to public
viewing. Therefore, according to them, people who are not their
Facebook friends, including respondents, are barred from
accessing said post without their knowledge and consent. As
petitioner's children testified, it was Angela who uploaded the
subject photos which were only viewable by the five of them, 40
although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit 41 that "my
students showed me some pictures of girls clad in brassieres. This
student [sic] of mine informed me that these are senior high
school [students] of STC, who are their friends in [F]acebook. . . .
They then said [that] there are still many other photos posted on
the Facebook accounts of these girls. At the computer lab, these
students then logged into their Facebook account [sic], and
accessed from there the various photographs . . . . They even told
me that there had been times when these photos were 'public'
i.e., not confined to their friends in Facebook."
In this regard, We cannot give much weight to the minors'
testimonies for one key reason: failure to question the students'
act of showing the photos to Tigol disproves their allegation that
the photos were viewable only by the five of them. Without any
evidence to corroborate their statement that the images were
visible only to the five of them, and without their challenging
Escudero's claim that the other students were able to view the
photos, their statements are, at best, self-serving, thus deserving
scant consideration. 42
It is well to note that not one of petitioners disputed Escudero's
sworn account that her students, who are the minors' Facebook
"friends," showed her the photos using their own Facebook
accounts. This only goes to show that no special means to be able
to view the allegedly private posts were ever resorted to by
Escudero's students, 43 and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by (1)
their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is "Public,"
it can be surmised that the photographs in question were
viewable to everyone on Facebook, absent any proof that
petitioners' children positively limited the disclosure of the
photograph. If such were the case, they cannot invoke the
protection attached to the right to informational privacy. The
ensuing pronouncement in US v. Gines-Perez 44 is most
instructive: DEAaIS
[A] person who places a photograph on the Internet precisely
intends to forsake and renounce all privacy rights to such imagery,
particularly under circumstances such as here, where the
Defendant did not employ protective measures or devices that
would have controlled access to the Web page or the photograph
itself. 45
Also, United States v. Maxwell 46 held that "[t]he more open the
method of transmission is, the less privacy one can reasonably
expect. Messages sent to the public at large in the chat room or e-
mail that is forwarded from correspondent to correspondent loses
any semblance of privacy."
That the photos are viewable by "friends only" does not
necessarily bolster the petitioners' contention. In this regard, the
cyber community is agreed that the digital images under this
setting still remain to be outside the confines of the zones of
privacy in view of the following:
(1) Facebook "allows the world to be more open and
connected by giving its users the tools to interact and share in any
conceivable way;" 47
(2) A good number of Facebook users "befriend" other
users who are total strangers; 48
(3) The sheer number of "Friends" one user has, usually by
the hundreds; and
(4) A user's Facebook friend can "share" 49 the former's
post, or "tag" 50 others who are not Facebook friends with the
former, despite its being visible only to his or her own Facebook
friends.
It is well to emphasize at this point that setting a post's or profile
detail's privacy to "Friends" is no assurance that it can no longer
be viewed by another user who is not Facebook friends with the
source of the content. The user's own Facebook friend can share
said content or tag his or her own Facebook friend thereto,
regardless of whether the user tagged by the latter is Facebook
friends or not with the former. Also, when the post is shared or
when a person is tagged, the respective Facebook friends of the
person who shared the post or who was tagged can view the post,
the privacy setting of which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A
and B are not Facebook friends. If C, A's Facebook friend, tags B in
A's post, which is set at "Friends," the initial audience of 100 (A's
own Facebook friends) is dramatically increased to 300 (A's 100
friends plus B's 200 friends or the public, depending upon B's
privacy setting). As a result, the audience who can view the post is
effectively expanded — and to a very large extent. EcHTCD
This, along with its other features and uses, is confirmation of
Facebook's proclivity towards user interaction and socialization
rather than seclusion or privacy, as it encourages broadcasting of
individual user posts. In fact, it has been said that OSNs have
facilitated their users' self-tribute, thereby resulting into the
"democratization of fame." 51 Thus, it is suggested, that a profile,
or even a post, with visibility set at "Friends Only" cannot easily,
more so automatically, be said to be "very private," contrary to
petitioners' argument.
As applied, even assuming that the photos in issue are visible only
to the sanctioned students' Facebook friends, respondent STC can
64
hardly be taken to task for the perceived privacy invasion since it
was the minors' Facebook friends who showed the pictures to
Tigol. Respondents were mere recipients of what were posted.
They did not resort to any unlawful means of gathering the
information as it was voluntarily given to them by persons who
had legitimate access to the said posts. Clearly, the fault, if any,
lies with the friends of the minors. Curiously enough, however,
neither the minors nor their parents imputed any violation of
privacy against the students who showed the images to Escudero.
Furthermore, petitioners failed to prove their contention that
respondents reproduced and broadcasted the photographs. In
fact, what petitioners attributed to respondents as an act of
offensive disclosure was no more than the actuality that
respondents appended said photographs in their memorandum
submitted to the trial court in connection with Civil Case No. CEB-
38594. 52 These are not tantamount to a violation of the minor's
informational privacy rights, contrary to petitioners' assertion.
In sum, there can be no quibbling that the images in question, or
to be more precise, the photos of minor students scantily clad, are
personal in nature, likely to affect, if indiscriminately circulated,
the reputation of the minors enrolled in a conservative institution.
However, the records are bereft of any evidence, other than bare
assertions that they utilized Facebook's privacy settings to make
the photos visible only to them or to a select few. Without proof
that they placed the photographs subject of this case within the
ambit of their protected zone of privacy, they cannot now insist
that they have an expectation of privacy with respect to the
photographs in question.
Had it been proved that the access to the pictures posted were
limited to the original uploader, through the "Me Only" privacy
setting, or that the user's contact list has been screened to limit
access to a select few, through the "Custom" setting, the result
may have been different, for in such instances, the intention to
limit access to the particular post, instead of being broadcasted to
the public at large or all the user's friends en masse, becomes
more manifest and palpable. THcEaS
On Cyber Responsibility
It has been said that "the best filter is the one between your
children's ears." 53 This means that self-regulation on the part of
OSN users and internet consumers in general is the best means of
avoiding privacy rights violations. 54 As a cyberspace community
member, one has to be proactive in protecting his or her own
privacy. 55 It is in this regard that many OSN users, especially
minors, fail. Responsible social networking or observance of the
"netiquettes" 56 on the part of teenagers has been the concern of
many due to the widespread notion that teenagers can
sometimes go too far since they generally lack the people skills or
general wisdom to conduct themselves sensibly in a public forum.
57
Respondent STC is clearly aware of this and incorporating lessons
on good cyber citizenship in its curriculum to educate its students
on proper online conduct may be most timely. Too, it is not only
STC but a number of schools and organizations have already
deemed it important to include digital literacy and good cyber
citizenship in their respective programs and curricula in view of SO ORDERED.
the risks that the children are exposed to every time they
participate in online activities. 58 Furthermore, considering the
complexity of the cyber world and its pervasiveness, as well as the
dangers that these children are wittingly or unwittingly exposed to
in view of their unsupervised activities in cyberspace, the
participation of the parents in disciplining and educating their
children about being a good digital citizen is encouraged by these
institutions and organizations. In fact, it is believed that "to limit
such risks, there's no substitute for parental involvement and
supervision." 59

As such, STC cannot be faulted for being steadfast in its duty of

teaching its students to be responsible in their dealings and
activities in cyberspace, particularly in OSNs, when it enforced the
disciplinary actions specified in the Student Handbook, absent a
showing that, in the process, it violated the students' rights.

OSN users should be aware of the risks that they expose

themselves to whenever they engage in cyberspace activities.
Accordingly, they should be cautious enough to control their
privacy and to exercise sound discretion regarding how much
information about themselves they are willing to give up. Internet
consumers ought to be aware that, by entering or uploading any
kind of data or information online, they are automatically and
inevitably making it permanently available online, the
perpetuation of which is outside the ambit of their control.
Furthermore, and more importantly, information, otherwise
private, voluntarily surrendered by them can be opened, read, or
copied by third parties who may or may not be allowed access to
such. SDHAcI

It is, thus, incumbent upon internet users to exercise due diligence

in their online dealings and activities and must not be negligent in
protecting their rights. Equity serves the vigilant. Demanding relief
from the courts, as here, requires that claimants themselves take
utmost care in safeguarding a right which they allege to have been
violated. These are indispensable. We cannot afford protection to
persons if they themselves did nothing to place the matter within
the confines of their private zone. OSN users must be mindful
enough to learn the use of privacy tools, to use them if they desire
to keep the information private, and to keep track of changes in
the available privacy settings, such as those of Facebook,
especially because Facebook is notorious for changing these
settings and the site's layout often.

In finding that respondent STC and its officials did not violate the
minors' privacy rights, We find no cogent reason to disturb the
findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other
assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED.

The Decision dated July 27, 2012 of the Regional Trial Court,
Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby
AFFIRMED.

No pronouncement as to costs.

65

[G.R. No. 203254. October 8, 2014.]
DR. JOY MARGATE LEE, petitioner, vs. P/SUPT. NERI A. ILAGAN,
respondent.
DECISION
PERLAS-BERNABE, J p:
Before the Court is a petition for review on certiorari 1 assailing
the Decision 2 dated August 30, 2012 of the Regional Trial Court of
Quezon City, Branch 224 (RTC) in SP No. 12-71527, which
extended the privilege of the writ of habeas data in favor of
respondent Police Superintendent Neri A. Ilagan (Ilagan). CacEIS
The Facts
In his Petition for Issuance of the Writ of Habeas Data 3 dated
June 22, 2012, Ilagan alleged that he and petitioner Dr. Joy
Margate Lee (Lee) were former common law partners. Sometime
in July 2011, he visited Lee at the latter's condominium, rested for
a while and thereafter, proceeded to his office. Upon arrival,
Ilagan noticed that his digital camera was missing. 4 On August 23,
2011, Lee confronted Ilagan at the latter's office regarding a
purported sex video (subject video) she discovered from the
aforesaid camera involving Ilagan and another woman. Ilagan
denied the video and demanded Lee to return the camera, but to
no avail. 5 During the confrontation, Ilagan allegedly slammed
Lee's head against a wall inside his office and walked away. 6
Subsequently, Lee utilized the said video as evidence in filing
various complaints against Ilagan, namely: (a) a criminal complaint
for violation of Republic Act No. 9262, 7 otherwise known as the
"Anti-Violence Against Women and Their Children Act of 2004,"
before the Office of the City Prosecutor of Makati; and (b) an
administrative complaint for grave misconduct before the
National Police Commission (NAPOLCOM). 8 Ilagan claimed that
66
Lee's acts of reproducing the subject video and threatening to
distribute the same to the upper echelons of the NAPOLCOM and
uploading it to the Internet violated not only his right to life,
liberty, security, and privacy but also that of the other woman,
and thus, the issuance of a writ of habeas data in his favor is
warranted. 9
Finding the petition prima facie meritorious, the RTC issued a Writ
of Habeas Data 10 dated June 25, 2012, directing Lee to appear
before the court a quo, and to produce Ilagan's digital camera, as
well as the negative and/or original of the subject video and
copies thereof, and to file a verified written return within five (5)
working days from date of receipt thereof.
In her Verified Return 11 dated July 2, 2012, Lee admitted that she
indeed kept the memory card of the digital camera and
reproduced the aforesaid video but averred that she only did so to
utilize the same as evidence in the cases she filed against Ilagan.
She also admitted that her relationship with Ilagan started
sometime in 2003 and ended under disturbing circumstances in
August 2011, and that she only happened to discover the subject
video when Ilagan left his camera in her condominium.
Accordingly, Lee contended that Ilagan's petition for the issuance
of the writ of habeas data should be dismissed because: (a) its
filing was only aimed at suppressing the evidence against Ilagan in
the cases she filed; and (b) she is not engaged in the gathering,
collecting, or storing of data regarding the person of Ilagan. 12
ASTcEa
The RTC Ruling
In a Decision 13 dated August 30, 2012, the RTC granted the
privilege of the writ of habeas data in Ilagan's favor, and
accordingly, ordered the implementing officer to turn-over copies
of the subject video to him, and enjoined Lee from further
reproducing the same. 14
The RTC did not give credence to Lee's defense that she is not
engaged in the gathering, collecting or storing of data regarding
the person of Ilagan, finding that her acts of reproducing the
subject video and showing it to other people, i.e., the NAPOLCOM
officers, violated the latter's right to privacy in life and caused him
to suffer humiliation and mental anguish. In this relation, the RTC
opined that Lee's use of the subject video as evidence in the
various cases she filed against Ilagan is not enough justification for
its reproduction. Nevertheless, the RTC clarified that it is only
ruling on the return of the aforesaid video and not on its
admissibility before other tribunals. 15
Dissatisfied, Lee filed this petition.
The Issue Before the Court
The essential issue for the Court's resolution is whether or not the
RTC correctly extended the privilege of the writ of habeas data in
favor of Ilagan.
The Court's Ruling
The petition is meritorious.
A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data reasonable mind to conclude 22 that Lee was going to use the
(Habeas Data Rule), was conceived as a response, given the lack of subject video in order to achieve unlawful ends — say for
effective and available remedies, to address the extraordinary rise instance, to spread it to the public so as to ruin Ilagan's
in the number of killings and enforced disappearances. 16 It was reputation. Contrastingly, Lee even made it clear in her testimony
conceptualized as a judicial remedy enforcing the right to privacy, that the only reason why she reproduced the subject video was to
most especially the right to informational privacy of individuals, 17 legitimately utilize the same as evidence in the criminal and
which is defined as "the right to control the collection, administrative cases that she filed against Ilagan. 23 Hence, due to
maintenance, use, and dissemination of data about oneself." 18 the insufficiency of the allegations as well as the glaring absence
IcAaSD of substantial evidence, the Court finds it proper to reverse the
RTC Decision and dismiss the habeas data petition.
As defined in Section 1 of the Habeas Data Rule, the writ of
habeas data now stands as "a remedy available to any person WHEREFORE, the petition is GRANTED. The Decision dated August
whose right to privacy in life, liberty or security is violated or 30, 2012 of the Regional Trial Court of Quezon City, Branch 224 in
threatened by an unlawful act or omission of a public official or SP No. 12-71527 is hereby REVERSED and SET ASIDE. Accordingly,
employee, or of a private individual or entity engaged in the the Petition for Issuance of the Writ of Habeas Data filed by
gathering, collecting or storing of data or information regarding respondent P/Supt. Neri A. Ilagan is DISMISSED for lack of merit.
the person, family, home, and correspondence of the aggrieved
party." Thus, in order to support a petition for the issuance of SO ORDERED.
such writ, Section 6 of the Habeas Data Rule essentially requires
that the petition sufficiently alleges, among others, "[t]he manner
the right to privacy is violated or threatened and how it affects the
right to life, liberty or security of the aggrieved party." In other
words, the petition must adequately show that there exists a
nexus between the right to privacy on the one hand, and the right
to life, liberty or security on the other. 19 Corollarily, the
allegations in the petition must be supported by substantial
evidence showing an actual or threatened violation of the right to
privacy in life, liberty or security of the victim. 20 In this relation, it
bears pointing out that the writ of habeas data will not issue to
protect purely property or commercial concerns nor when the
grounds invoked in support of the petitions therefor are vague
and doubtful. 21

In this case, the Court finds that Ilagan was not able to sufficiently
allege that his right to privacy in life, liberty or security was or
would be violated through the supposed reproduction and
threatened dissemination of the subject sex video. While Ilagan
purports a privacy interest in the suppression of this video —
which he fears would somehow find its way to Quiapo or be
uploaded in the internet for public consumption — he failed to
explain the connection between such interest and any violation of
his right to life, liberty or security. Indeed, courts cannot speculate
or contrive versions of possible transgressions. As the rules and
existing jurisprudence on the matter evoke, alleging and
eventually proving the nexus between one's privacy right to the
cogent rights to life, liberty or security are crucial in habeas data
cases, so much so that a failure on either account certainly
renders a habeas data petition dismissible, as in this case.
aDSTIC

In fact, even discounting the insufficiency of the allegations, the

petition would equally be dismissible due to the inadequacy of the
evidence presented. As the records show, all that Ilagan
submitted in support of his petition was his sell-serving testimony
which hardly meets the substantial evidence requirement as
prescribed by the Habeas Data Rule. This is because nothing
therein would indicate that Lee actually proceeded to commit any
overt act towards the end of violating Ilagan's right to privacy in
life, liberty or security. Nor would anything on record even lead a

67

[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.
SYNOPSIS
Administrative Order No. 308, entitled "Adoption of a National
Computerized Identification Reference System," was issued by the
President on December 12, 1996. Petitioner challenges the
constitutionality of said Administrative Order on two (2) grounds,
namely: (1) it is a usurpation of the power of Congress to legislate;
and (2) its impermissibility intrudes on our citizenry's protected
zone of privacy. Petitioner contends that the Administrative Order
is not a mere administrative order but a law and, hence, beyond
the power of the President to issue. He further alleges that said
Administrative Order 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.
In declaring the Administrative Order null and void for being
unconstitutional, the Supreme Court held that the Administrative
Order involves a subject that is not appropriate to be covered by
said administrative order. An administrative order is an ordinance
68
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.
The essence of privacy is the right to be let alone. The right to
privacy is recognized and enshrined in several provisions of the
Constitution. Zones of privacy are likewise recognized and
protected in our laws. 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. What is
not arguable is the broadness, the vagueness, the overbreath of A.
O. No. 308 which if implemented will put our people's right to
privacy in clear and present danger. CaDSHE
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. Even while we strike down
A. O. No. 308, we spell out that the Court is not per se against the
use of computers to accumulate, store, process, retrieve and
transmit data to improve our bureaucracy. Given the record-
keeping power of the computer, only the indifferent will fail to
perceive the danger that A. O. No. 308 gives the government the
power to compile a devastating dossier against unsuspecting
citizens.
SYLLABUS
1. POLITICAL LAW; LEGISLATIVE DEPARTMENT;
LEGISLATIVE POWER; CONSTRUED. — Legislative power is "the
authority, under the Constitution, to make laws, and to alter and
repeal them." 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. The grant of legislative power
to Congress is broad, general and comprehensive. The legislative
body possesses plenary power for all purposes of civil
government. Any power, deemed to be legislative by usage 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, legislative power
embraces all subject and extends to matters of general concern or
common interest.
2. ID.; EXECUTIVE DEPARTMENT; EXECUTIVE POWER IS
VESTED IN THE PRESIDENT. — While Congress is vested with the
power to enact laws, the President executes the laws. The
executive power is vested in the President. It is generally defined
as the power to enforce and administer the laws. It is the power
of carrying the laws into practical operation and enforcing their
due observance. 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 this department. He has control over the
executive department, bureaus and offices. This means that he
has the authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of
its officials. 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.
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
standard of administrative efficiency and check the official
conduct of his agents. To this end, he can issue administrative
orders, rules and regulations. ETDAaC
3. ID.; NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM (A. O. No. 308); DOES NOT IMPLEMENT THE
LEGISLATIVE POLICY OF THE ADMINISTRATIVE CODE OF 1987;
REASONS THEREFOR. — 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 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 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 structures and procedures
designed to serve the people." 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 the 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 guidelines 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. 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.
69
4. ID.; ID.; CANNOT PASS CONSTITUTIONAL MUSTER AS AN
ADMINISTRATIVE LEGISLATION BECAUSE FACIALLY IT VIOLATES
THE RIGHT TO PRIVACY. — 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.
5. ID.; ID.; ID.; REASON THEREFOR. — The potential for
misuse of the data to be gathered under A.O. No. 308 cannot be
underplayed as the dissenters do. Pursuant to said administrative
order, an individual must present his PRN everytime he deals with
a government agency to avail of basic services and security. His
transactions with the government agency will necessarily be
recorded — whether it be in the computer or in the documentary
file of the agency. The individual's file may include his transactions
for loan availments, income tax returns, statement of assets and
liabilities, reimbursements for medication, hospitalization, etc.
The more frequent the use of the PRN, the better the chance of
building a huge and formidable information base through the
electronic linkage of the files. 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. We can even grant, arguendo, that the
computer data file will be limited to the name, address and other
basic personal information about the individual. 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 be
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 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. 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 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
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 threaten the very
abuses that the Bill of Rights seeks to prevent. cSTHaE
6. ID.; ID.; ID.; THE USE OF BIOMETRICS AND COMPUTER
TECHNOLOGY DOES NOT ASSURE THE INDIVIDUAL OF A
REASONABLE EXPECTATION OF PRIVACY. — We reject the
argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the National 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 an reasonable. The
factual circumstances of the case determines the reasonableness
of the expectation. However, other factors, such as customs,
physical surroundings and practices of a particular activity, may
serve to create or diminish this expectation. The use of 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 expected privacy decreases. The
measure of protection granted by the reasonable expectation
diminishes as relevant technology becomes more widely
accepted. 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.
ROMERO, J., separate opinion:
POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM, VIOLATES A PERSON'S RIGHT TO PRIVACY. —
Whether viewed as a personal or a property right, if found its way
in Philippine Constitutions and statutes; this, in spite of the fact
that Philippine culture can hardly be said to provide a fertile field
for the burgeoning of said right. In fact, our lexicographers have
yet to coin a word for it in the Filipino language. Customs and
practices, being what they have always been, Filipinos think it
perfectly natural and in good taste to inquire into each other's
intimate affairs. One has only to sit through a televised talk show
to be convinced that what passes for wholesome entertainment is
actually an invasion into one's private life, leaving the interviewee
embarrassed and outrage by turns. With the overarching
influence of common law and the recent advent of the
Information Age with its high-tech devices, the right to privacy has
expanded to embrace its public law aspect. The Bill of Rights of
our evolving Charters, a direct transplant form that of the United
States, contains in essence facets of the right to privacy which
constitutes limitations on the far-reaching powers government. So
terrifying are the possibilities of a law such as Administrative
Order No. 308 in making inroads into the private lives of the
citizens, a virtual Big Brother looking over our shoulders, that it
must without delay, be "slain upon sight" before our society turns
totalitarian with each of us, a mindless robot.
VITUG, J., separate opinion:
POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM, AN UNDUE AND IMPERMISSIBLE EXERCISE
OF LEGISLATIVE POWER BY THE EXECUTIVE. — Administrative
Order No. 308 appears to be so extensively drawn that could,
indeed, allow unbridled options to become available to its
implementors beyond the reasonable comfort of the citizens and
of residents alike. Prescinding from the foregoing and most
importantly to this instance, the subject covered by the
questioned administrative order can have far-reaching
consequences that can tell on all individuals, their liberty and
privacy, that, to my mind, should make it indispensable and
appropriate to have the matter specifically addressed by the
Congress of the Philippines, the policy-making body of our
government, to which the task should initially belong and to which
the authority to formulate and promulgate that policy is
constitutionally lodged. Wherefore, I vote for the nullification of
Administrative Order No. 308 for being an undue and
impermissible exercise of legislative power by the Executive.
PANGANIBAN, J., separate opinion:
POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM (AO 308), SUBJECT MATTER THEREOF IS
BEYOND THE POWERS OF THE PRESIDENT TO REGULATE
WITHOUT A LEGISLATIVE ENACTMENT. — I concur only in the
result and only on the ground that an executive issuance is not
legally sufficient to establish an all — encompassing computerized
system of identification in the country. The subject matter
contained in AO 308 is beyond the powers of the President to
regulate without a legislative enactment.
KAPUNAN, J., dissenting opinion:
1. POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM; PURPOSE. — The National Computerized
Identification Reference System, to which the NSO, GSIS and SSS
are linked as lead members of the IACC is intended to establish
uniform standards for ID cards issued by key government agencies
(like the SSS) for the "efficient identification of persons." Under
the new system, only on retaliate and tamper-proof I.D. need be
presented by the cardholder instead of several identification
papers such as passports and driver's license, to able to transact
with government agencies. The improved ID can be used to
facilitate public transactions such as: 1. Payment of SSS and GSIS
benefits 2. Applications for driver's license, BIR TIN, passport,
marriage license, death certificate, NBI and police clearance and
business permits. 3. Availment of Medicare services in hospitals 4.
Availment of welfare services 5. Application for work/
employment 6. Pre-requisite for voter's ID. The card may also be
used for private transactions such as: 1. Opening of bank accounts
2. Encashment of checks 3. Applications for loans, credit cards,
water, power, telephones, pagers, etc. 4. Purchase of stocks 5.
Application for work/employment 6. Insurance claims 7. Receipt
of payments, checks, letters, valuables, etc. The new identification
system would tremendously improve and uplift public service in
our country to the benefit of Filipino citizens and resident aliens. It
would promote, facilitate and speed up legitimate transactions
with government offices as well as with private and business
entities. Experience tells us of the constant delays and
inconveniences the public has to suffer in availing of basic public
services and social security benefits because of inefficient and not
too reliable means of identification of the beneficiaries. CHDTIS
2. ID.; ID.; SALIENT FEATURES. — Thus, in the "Primer on
the Social Security Card and Administrative Order No. 308" issued
by the SSS, a lead agency in the implementation of the said order,

70
the following salient features are mentioned: 1. A.O. 308 merely
establishes the standards for I.D. cards issued by key government
agencies such as SSS and GSIS. 2. It does not establish a national
I.D. system; neither does it require a national I.D. card for every
person. 3. The use of the I.D. is voluntary. 4. The I.D. is not
required for delivery of any government service. Everyone has the
right to basic government services as long as he is qualified under
existing laws. 5. The I.D. cannot and will not in any way be used to
prevent one to travel. 6. There will be no discrimination. Non-
holders of the improved I.D. are still entitled to the same services
but will be subjected to the usual rigid identification and
verification beforehand.
3. ID.; ID.; EXERCISE OF PRESIDENT'S QUASI-LEGISLATIVE
POWER VESTED TO HIM UNDER ADMINISTRATIVE CODE OF 1987.
— The Administrative Code of 1987 has unequivocally vested the
President with quasi-legislative powers in the form of executive
orders, administrative orders, proclamations, memorandum
orders and circulars and general or special orders. An
administrative order, like the one under which the new
identification system is embodied, has its peculiar meaning under
the 1987 Administrative Code. The National Computerized
Identification Reference system was established pursuant to the
aforequoted provision precisely because its principal purpose, as
expressly stated in the order, is to provide the people with "the
facility to conveniently transact business" with the various
government agencies providing basic services. Being the
"administrative head," it is unquestionably the responsibility of
the President to find ways and means to improve the government
bureaucracy, and make it more professional, efficient and reliable,
specially those government agencies and instrumentalities which
provide basic services and which the citizenry constantly transact
with, like the Government Service Insurance System (GSIS), Social
Security System (SSS) and National Statistic Office (NSO). The
National computerized ID system is one such advancement. To
emphasize, the new identification reference system is created to
streamline the bureaucracy, cut the red tape and ultimately
achieve administrative efficiency. The project, therefore, relates
to, is an appropriate subject and falls squarely within the ambit of
the Chief Executive's administrative power under which, in order
to successfully carry out his administrative duties, he has been
granted by law quasi-legislative powers, quoted above. A.O. No.
308 was promulgated by the President pursuant to the quasi-
legislative powers expressly granted to him by law and in
accordance with his duty as administrative head. Hence, the
contention that the President usurped the legislative prerogatives
of Congress has no firm basis.
4. ID.; ID.; PREMATURE FOR JUDICIAL INQUIRY. — Having
resolved that the President has the authority and prerogative to
issue A.O. No. 308, I submit that it is premature for the Court to
determine the constitutionality or unconstitutionality of the
National Computerized Identification Reference System. Basic in
constitutional law is the rule that before the court assumes
jurisdiction over and decide constitutional issues, the following
requisites must first be satisfied: 1) there must be an actual case
or controversy involving a conflict of rights susceptible of judicial
determination; 2) the constitutional question must be raised by a
proper party; 3) the constitutional question must be raised at the
71
earliest opportunity; and 4) the resolution of the constitutional
question must be necessary to the resolution of the case. In this
case, it is evident that the first element is missing. Judicial
intervention calls for an actual case or controversy which is
defined as "an existing case or controversy that is appropriate or
ripe for determination, not conjectural or anticipatory." Justice
Isagani A. Cruz further expounds that "(a) justiciable controversy is
thus distinguished from a difference or dispute of a hypothetical
or abstract character or from one that is academic or moot. The
controversy must be definite and concrete, touching the legal
relations of parties having adverse legal interests. It must be a real
and substantial controversy admitting of special relief through a
decree that is conclusive in character, as distinguished from an
opinion advising what the law would be upon a hypothetical state
of facts. . . ." A.O. No. 308 does not create any concrete or
substantial controversy. It provides the general framework of the
National Computerized Identification Reference System and lays
down the basic standards (efficiency, convenience and prevention
of fraudulent transactions) for its creation. But as manifestly
indicated in the subject order, it is the Inter-Agency Coordinating
Committee (IACC) which is tasked to research, study and
formulate the guidelines and parameters for the use of Biometrics
Technology and in computer application designs that will define
and give substance to the new system. This petition is, thus,
premature considering that the IACC is still in the process of doing
the leg work and has yet to codify and formalize the details of the
new system.
5. ID.; ID.; DOES NOT VIOLATE THE CONSTITUTIONAL
RIGHT TO PRIVACY. — There is nothing in A.O. No. 308, as it is
worded, to suggest that the advanced methods of the Biometrics
Technology. Consequently, the choice of the particular form and
extent of Biometrics Technology that may pose danger to the right
of privacy will be adopted. The standards set in A.O. No. 308 for
the adoption of the new system are clear-cut and unequivocably
spelled out in the "WHEREASES" and body of the order, namely,
the need to provide citizens and foreign residents with the facility
to conveniently transact business with basic service and social
security providers and other government instrumentalities; the
computerized system is intended to properly and efficiently
identify persons seeking basic services or social security and
reduce, if not totally eradicate fraudulent transactions and
misrepresentation; the national identification reference system is
established among the key basic services and social security
providers; and finally, the IACC Secretariat shall coordinate with
different Social Security and Services Agencies to establish the
standards in the use of Biometrics Technology. Consequently, the
choice of the particular form and extent of Biometrics Technology
that will be applied and the parameters for its use (as will be
defined in the guidelines) will necessarily and logically be guided,
limited and circumscribed by the afore-stated standards. The fear
entertained by the majority on the potential dangers of this new
technology is thus securedly allayed by the specific limitations set
by the above-mentioned standards. More than this, the right to
privacy is well-ensconced in and directly protected by various
provisions of the Bill of Rights, the Civil Code, the Revised Penal
Code, and certain special laws, all so painstakingly and
resourcefully catalogued in the majority opinion. Many of these
laws provide penalties for their violation in the form of
imprisonment, fines, or damages. These laws will serve as
powerful deterrents not only in the establishment of any
administrative rule that will violate the constitutionally protected
right to privacy, but also to would-be transgressors of such right.
cATDIH
6. ID.; ID.; DOES NOT REQUIRE THE TRANSFER OF
APPROPRIATION BUT A POOLING OF FUNDS AND RESOURCES BY
THE VARIOUS GOVERNMENT AGENCIES INVOLVED IN THE
PROJECT. — On the issue of funding, the majority submits that
Section 6 of A.O. No. 308, which allows the government agencies
included in the new system to obtain funding from their
respective budgets, is unconstitutional for being an illegal transfer
of appropriations. It is not so. The budget for the national
identification system cannot be deemed a transfer of funds since
the same is composed of and will be implemented by the member
government agencies. Moreover, these agencies particularly the
GSIS and SSS have been issuing some form of identification or
membership card. The improved ID cards that will be issued under
this new system would just take place of the old identification
cards and budget-wise, the funds that were being used to
manufactured the old ID cards, which are usually accounted for
under the "Supplies and Materials" item of the Government
Accounting and Auditing Manual, could now be utilized to fund
the new cards. Hence, what is envisioned is not a transfer of
appropriations but a pooling of funds and resources by the various
government agencies involved in the project.
MENDOZA, J., dissenting opinion:
1. POLITICAL LAW; NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM (A. O. NO. 308); BASED ON
DATA WHICH THE GOVERNMENT AGENCIES INVOLVED HAVE
ALREADY BEEN REQUIRING INDIVIDUALS MAKING USE OF THEIR
SERVICES TO GIVE. — J. Mendoza does not see how from the bare
provisions of the Order, the full text of which is set forth in the
majority opinion, petitioner and the majority can conclude that
the Identification Reference System establishes such
comprehensive personal information dossiers that can destroy
individual privacy. So far as the Order provides, all that is
contemplated is an identification system based on data which the
government agencies involved have already been requiring
individuals making use of their services to give.
2. ID.; ID.; SIMPLY ORGANIZES SERVICE AGENCIES OF THE
GOVERNMENT TO FACILITATE THE IDENTIFICATION OF PERSONS
SEEKING BASIC SERVICES AND SOCIAL SECURITY. — More
specifically, the question is whether the establishment of the
Identification Reference System will not result in the compilation
of massive dossiers on individuals which, beyond their use for
identification, can become instruments of thought control. So far,
the text of A.O. No. 308 affords no basis for believing that the data
gathered can be used for such sinister purpose. As already stated,
nothing that is not already being required by the concerned
agencies of those making use of their services is required by the
Order in question. The Order simply organizes service agencies of
the government into a System for the purpose of facilitating the
identification of persons seeking basic services and social security.
Thus, the whereas clauses of A.O. No. 308 state: . . . . . . . . . The
72
application of biometric technology and the standardization of
computer designs can provide service agencies with precise
identification of individuals, but what is wrong with that?
3. ID.; ID.; NO MORE THAN A DIRECTIVE TO GOVERNMENT
AGENCIES WHICH THE PRESIDENT HAS ISSUED IN HIS CAPACITY AS
ADMINISTRATIVE HEAD. — A.O. No. 308 is no more than a
directive to government agencies which the President of the
Philippines has issued in his capacity as administrative head. It is
not a statute. It confers no right; it imposes no duty; it affords no
protection; it creates no office. It is, as its name indicates, a mere
administrative order, the precise nature of which is given in the
following excerpt from the decision in the early case of Olsen &
Co. v. Herstein: [It] is nothing more or less than a command from a
superior to an inferior. It creates no relation except between the
official who issues it and the official who receives it. Such orders,
whether executive or departmental, have for their object simply
the efficient and economical administration of the affairs of the
department to which or in which they are issued in accordance
with the law governing the subject-matter. They are
administrative in their nature and do not pass beyond the limits of
the department to which they are directed or in which they are
published, and, therefore, create no rights in third persons. They
are based on, and are the product of, a relationship in which
power is their source and obedience their object. Disobedience to
or deviation from such an order can be punished only by the
power which issued it; and, if that power fails to administer the
corrective, then the disobedience goes unpunished. In that
relationship no third person or official may intervene,. not even
the courts. Such orders may be very temporary, they being subject
to instant revocation or modification by the power which
published them. Their very nature, as determined by the
relationship which produced them, demonstrates clearly, the
impossibility of any other person enforcing them except the one
who created them. An attempt on the part of the courts to
enforce such orders would result not only in confusion but,
substantially, in departmental anarchy also.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
PRIVACY; DOES NOT BAR ALL INCURSIONS INTO INDIVIDUAL
PRIVACY. — Indeed, the majority concedes that "the right of
privacy does not bar all incursions into individual privacy. . . [only
that such] incursions into the right must be accompanied by
proper safeguards and well-defined standards to prevent
unconstitutional invasions." In the case of the Identification
Reference System, the purpose is to facilitate the transaction of
business with service agencies of the government and to prevent
fraud and misrepresentation. The personal identification of an
individual can facilitate his treatment in any government hospital
in case of emergency. On the other hand, the delivery of material
assistance, such as free medicines, can be protected from fraud or
misrepresentation as the absence of a data base makes it possible
for unscrupulous individuals to obtain assistance from more than
one government agency. caIDSH
DECISION
PUNO, J p:
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. cdphil
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 instrumentalities 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 Computerized Identification
Reference System. — A decentralized Identification Reference
System among the key basic services and social security providers
is hereby established.
SEC. 2. Inter-Agency Coordinating Committee. — An Inter-
Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation of the
System is hereby created, chaired by the Executive Secretary, with
the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
73
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 ESTABLISHMENT 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 Constitution, as the will of the people in their original, sovereign
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.
74
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
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 President. 15 It is generally defined as the power to enforce
and administer the laws. 16 It is the power of carrying the laws
into practical operation and enforcing their due observance. 17
As head of the Executive Department, the President is the Chief
Executive. He represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his
department. 18 He has control over the executive department,
bureaus and offices. This means that he has the authority to
assume directly the functions of the executive department,
bureau and office, or interfere with the discretion of its officials.
19 Corollary to the power of control, the President also has the
duty of supervising the enforcement of laws for the maintenance
of general peace and public order. Thus, he is granted
administrative power over bureaus and offices under his control
to enable him to discharge his duties effectively. 20
Administrative power is concerned with the work of applying
policies and enforcing orders as determined by proper
governmental organs. 21 It enables the President to fix a uniform
standard of administrative efficiency and check the official
conduct of his agents. 22 To this end, he can issue administrative
orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308
involves a subject that is not appropriate to be covered by an
administrative order. An administrative order is:
"Sec. 3. Administrative Orders. — Acts of the President which
relate to particular aspects of governmental operation in
pursuance of his duties as administrative head shall be
promulgated in administrative orders." 23
An administrative order is an ordinance issued by the President
which relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for
the sole purpose of implementing the law and carrying out the
legislative policy. 24 We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of
1987. The Code is a general law and "incorporates in a unified
document the major structural, functional and procedural
principles of governance" 25 and "embodies changes in
administrative structures 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 the 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 guidelines 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.O. No. 308 is
not a law because it confers no right, imposes no duty, affords no
protection, 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
75
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 be 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, papers, and effects,
against unreasonable searches and seizures.' The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to
create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: 'The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.'"
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold
ruling that there is a constitutional right to privacy. Speaking thru
Mr. Justice, later Chief Justice, Enrique Fernando, we held:
"xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made
the use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right of privacy
of married persons; rightfully it stressed "a relationship lying
within the zone of privacy created by several fundamental
constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: 'The concept of
limited government has always included the idea that
governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic
distinctions between absolute and limited government. Ultimate
and pervasive control of the individual, in all aspects of his life, is
the hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector —
protection, in other words, of the dignity and integrity of the
individual — has become increasingly important as modern
society has developed. All the forces of a technological age —
industrialization, urbanization, and organization — operate to
narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic and a
totalitarian society.'"
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. 33 It is expressly recognized in Section 3(1) of the Bill
of Rights:
"Sec. 3. (1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law."
Other facets of the right to privacy are 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.
76
Sec. 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against
himself."
Zones of privacy are likewise recognized and protected in our
laws. The Civil Code provides that "[e]very person shall respect
the dignity, personality, privacy and peace of mind of his
neighbors and other persons" and punishes as actionable torts
several acts by a person of meddling and prying into the privacy of
another. 35 It also holds a public officer or employee or any
private individual liable for damages for any violation of the rights
and liberties of another person, 36 and recognizes the privacy of
letters and other private communications. 37 The Revised Penal
Code makes a crime the violation of secrets by an officer, 38 the
revelation of trade and industrial secrets, 39 and trespass to
dwelling. 40 Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42
and the Intellectual Property Code. 43 The Rules of Court on
privileged communication likewise recognize the privacy of certain
information. 44
Unlike the dissenters, we prescind from the premise that the right
to privacy is a fundamental right guaranteed by the Constitution,
hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly
drawn. A.O. No. 308 is predicated on two considerations: (1) the
need to provide 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 application of
statistical methods to biological facts; a mathematical analysis of
biological data." 45 The term "biometrics" has now 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 identification systems use a card or
personal identification 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 infrared 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 banquet 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 for the
generation of other data with remote relation to the avowed
purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No.
308 can give the government the roving authority to store and
retrieve information for a purpose other than the identification of
the individual through his PRN .
The potential for misuse of the data to be gathered under A.O.
No. 308 cannot be underplayed as the dissenters do. Pursuant to
said administrative order, an individual must present his PRN
everytime he deals with a government agency to avail of basic
services and security. His transactions with the government
agency will necessarily be recorded — whether it be in the
computer or in the documentary file of the agency. The
individual's file may include his transactions for loan availments,
income tax returns, statement of assets and liabilities,
reimbursements for medication, hospitalization, etc. The more
frequent the use of the PRN, the better the chance of building a
huge and formidable information base through the electronic
linkage of the files. 55 The data may be gathered for gainful and
77
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 information
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 be 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 a 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 data 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. cdphil
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
National ID and the use of biometrics technology as it stands on
quicksand. The reasonableness of a person's expectation of
privacy depends on a two-part test: (1) whether by his conduct,
the individual has exhibited an expectation of privacy; and (2)
whether this expectation is one that society recognizes as
reasonable. 67 The factual circumstances of the case determines
the reasonableness of the expectation. 68 However, other factors,
such as customs, physical surroundings and practices of a
particular activity, may serve to create or diminish this
expectation. 69 The use of biometrics and computer technology in
A.O. No. 308 does not assure the individual of a reasonable
expectation of privacy. 70 As technology advances, the level of
reasonably expected privacy decreases. 71 The measure of
protection granted by the reasonable expectation diminishes as
relevant technology becomes more widely accepted. 72 The
security of the computer data file depends not only on the
physical inaccessibility of the file but also on the advances in
hardware and software computer technology. A.O. No. 308 is so
widely drawn that a minimum standard for a reasonable
expectation of privacy, regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be drawn 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. 308 gives the IACC
virtually unfettered discretion to determine the metes and bounds
of the ID System.
Nor do our present laws provide adequate safeguards for a
reasonable expectation of privacy. Commonwealth Act No. 591
penalizes the disclosure by any person of data furnished by the
individual to the NSO with imprisonment and fine. 73 Republic Act
No. 1161 prohibits public disclosure of SSS employment records
and reports. 74 These laws, however, apply to records and data
with the NSO and the SSS. It is not clear whether they may be
applied to data with the other government agencies forming part
of the National ID System. The need to clarify the penal aspect of
A.O. No. 308 is another reason why its enactment should be given
to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's
abridgment of the right of privacy by using the rational
relationship test. 75 He stressed that the purposes of A.O. No. 308
are: (1) to streamline and speed up the implementation of basic
government services, (2) eradicate fraud by avoiding duplication
of services, and (3) generate population data for development
planning. He concludes that these purposes justify the incursions
into the right to privacy for the means are rationally related to the
end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we
upheld the constitutionality of R.A. 3019, the Anti-Graft and
Corrupt Practices Act, as a valid police power measure. We
declared that the law, in compelling a public officer to make an
annual report disclosing his assets and liabilities, his sources of
income and expenses, did not infringe on the individual's right to
privacy. The law was enacted to promote morality in public
78
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
hold 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 Constitution.
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 Substances
Act of 1972 required physicians to identify patients obtaining
prescription drugs enumerated in the statute, i.e., drugs with a
recognized medical use but with a potential for abuse, so that the
names and addresses of the patients can be recorded in a
centralized computer file of the State Department of Health. The
plaintiffs, who were patients and doctors, claimed that some
people might decline necessary medication because of their fear
that the computerized data may be readily available and open to
public disclosure; and that once disclosed, it may stigmatize them
as drug addicts. 80 The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e, the individual
interest in avoiding disclosure of personal matters, and the
interest in independence in making certain kinds of important
decisions. The U.S. Supreme Court held that while an individual's
interest in avoiding disclosure of personal matters 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 recommendation 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 information. It enumerated
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 against the use of computers to
accumulate, store, process, retrieve and transmit data to improve
our bureaucracy. Computers work wonders to achieve the
efficiency which both government and private industry seek.
Many information systems in different countries make use of the
computer to facilitate important social objectives, 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.
— governments, journalists, employers, social scientists, etc. 88 In
the 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
will 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 Administrative
Order No. 308 entitled "Adoption of a National Computerized
Identification Reference System" declared null and void for being
unconstitutional.
SO ORDERED.

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
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." 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

79

[G.R. No. 167798. April 19, 2006.]
KILUSANG MAYO UNO, 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, vs.
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT
80
AUTHORITY, and THE SECRETARY, DEPARTMENT OF BUDGET and
MANAGEMENT, respondents.
[G.R. No. 167930. April 19, 2006.]
BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A.
CASIÑO, and JOEL G. VIRADOR, GABRIELA WOMEN'S PARTY
Representative LIZA L. MAZA, ANAKPAWIS Representatives
RAFAEL V. MARIANO and CRISPIN B. BELTRAN, Rep. FRANCIS G.
ESCUDERO, Rep. EDUARDO C. ZIALCITA, Rep. LORENZO R.
TAÑADA 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 of KMP,
LANA LINABAN of GABRIELA, 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
PHILIPPINES (AMRSP), petitioners, vs. 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
NATIONAL STATISTICS OFFICE (NSO), respondents.
DECISION
CARPIO, J p:
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. CSTHca
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-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;
CcSTHI
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.
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
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
81
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: DIESHT
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;
b. Call on any other government agency or institution, or
create sub-committees 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 person's 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. DTISaH
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.
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 citizen's
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. EO 420 violates the constitutional provisions on the right
to privacy
(i) It allows access to personal confidential data without
the owner's 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.
82
4. Granting without conceding that the President may
issue EO 420, the Executive Order was issued without public
hearing.
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 citizen's
right to privacy. aTcSID
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 Court's 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 Mayor's Office, 6 LTO, 7
PRC, 8 and similar government entities.
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- Making the data collection and recording of government entities
issued ID cards; and unified, and making their ID formats uniform, will admittedly
achieve substantial benefits. These benefits are savings in terms of
e. To facilitate access to and delivery of quality and procurement of equipment and supplies, compatibility in systems
effective government service. as to hardware and software, ease of verification and thus
increased reliability of data, and the user-friendliness of a single ID
In short, the purposes of the uniform ID data collection and ID
format for all government entities. TcDIEH
format are to reduce costs, achieve efficiency and reliability,
insure compatibility, and provide convenience to the people There is no dispute that government entities can individually limit
served by government entities. IcADSE 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
Section 3 of EO 420 limits the data to be collected and recorded
government entities can individually adopt the ID format as
under the uniform ID system to only 14 specific items, namely: (1)
specified in Section 3 of EO 420. Such an act is certainly within the
Name; (2) Home Address; (3) Sex; (4) Picture; (5) Signature; (6)
authority of the heads or governing boards of the government
Date of Birth; (7) Place of Birth; (8) Marital Status; (9) Name of
entities that are already authorized under existing laws to issue
Parents; (10) Height; (11) Weight; (12) Two index fingers and two
IDs.
thumbmarks; (13) Any prominent distinguishing features like
moles or others; and (14) Tax Identification Number. A unified ID system for all these government entities can be
achieved in either of two ways. First, the heads of these existing
These limited and specific data are the usual data required for
government entities can enter into a memorandum of agreement
personal identification by government entities, and even by the
making their systems uniform. If the government entities can
private sector. Any one who applies for or renews a driver's
individually adopt a format for their own ID pursuant to their
license provides to the LTO all these 14 specific data.
regular functions under existing laws, they can also adopt by
mutual agreement a uniform ID format, especially if the uniform
At present, government entities like LTO require considerably
format will result in substantial savings, greater efficiency, and
more data from applicants for identification purposes. EO 420 will
optimum compatibility. This is purely an administrative matter,
reduce the data required to be collected and recorded in the ID
and does not involve the exercise of legislative power.
databases of the government entities. Government entities
cannot collect or record data, for identification purposes, other
Second, the President may by executive or administrative order
than the 14 specific data.
direct the government entities under the Executive department to
adopt a uniform ID data collection and format. Section 17, Article
Various laws allow several government entities to collect and
VII of the 1987 Constitution provides that the "President shall
record data for their ID systems, either expressly or impliedly by
have control of all executive departments, bureaus and offices."
the nature of the functions of these government entities. Under
The same Section also mandates the President to "ensure that the
their existing ID systems, some government entities collect and
laws be faithfully executed."
record more data than what EO 420 allows. At present, the data
collected and recorded by government entities are disparate, and
Certainly, under this constitutional power of control the President
the IDs they issue are dissimilar.
can direct all government entities, in the exercise of their
functions under existing laws, to adopt a uniform ID data
In the case of the Supreme Court, 9 the IDs that the Court issues
collection and ID format to achieve savings, efficiency, reliability,
to all its employees, including the Justices, contain 15 specific
compatibility, and convenience to the public. The President's
data, namely: (1) Name; (2) Picture; (3) Position; (4) Office Code
constitutional power of control is self-executing and does not
Number; (5) ID Number; (6) Height; (7) Weight; (8) Complexion;
need any implementing legislation.
(9) Color of Hair; (10) Blood Type; (11) Right Thumbmark; (12) Tax
Identification Number; (13) GSIS Policy Number; (14) Name and
Of course, the President's power of control is limited to the
Address of Person to be Notified in Case of Emergency; and (15)
Executive branch of government and does not extend to the
Signature. If we consider that the picture in the ID can generally
Judiciary or to the independent constitutional commissions. Thus,
also show the sex of the employee, the Court's ID actually
EO 420 does not apply to the Judiciary, or to the COMELEC which
contains 16 data.
under existing laws is also authorized to issue voter's ID cards. 10
This only shows that EO 420 does not establish a national ID
In contrast, the uniform ID format under Section 3 of EO 420
system because legislation is needed to establish a single ID
requires only "the first five items listed" in Section 3, plus the
system that is compulsory for all branches of government.
fingerprint, agency number and the common reference number,
or only eight specific data. Thus, at present, the Supreme Court's
The Constitution also mandates the President to ensure that the
ID contains far more data than the proposed uniform ID for
laws are faithfully executed. There are several laws mandating
government entities under EO 420. The nature of the data
government entities to reduce costs, increase efficiency, and in
contained in the Supreme Court ID is also far more financially
general, improve public services. 11 The adoption of a uniform ID
sensitive, specifically the Tax Identification Number.
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
83
constitutional duty to ensure that the laws are faithfully executed.
ASTcaE
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 President's 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 citizen's 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 issuing ID cards as part of their governmental
functions. Every government entity that presently issues an ID
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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. EDCIcH
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 user-friendly 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.
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 Court's 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;
aEAIDH
b. In no case shall the collection or compilation of other
data in violation of a person's 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 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 LTO's 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. AIcECS
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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 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
people's 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) SECATH
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. SEHaDI
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 patient's confidentiality and privacy are permissible."
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." 19
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," 20 a national ID system that did not exist 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.
ScCIaA
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 user-friendly to the public. Hence, EO
420 is a proper subject of executive issuance under the President's
constitutional power of control over government entities in the
Executive department, as well as under the President's
constitutional duty to ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No.
420 is declared VALID.

Again, in Planned Parenthood of Southeastern Pennsylvania v. SO ORDERED.

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 doctor's name, the woman's 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

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