The right to privacy is the right to be let alone in the words of Samuel D. Warren and Louis D. Brandeis. It is a fundamental human right which gives one person the right to be free of unsanctioned intrusion from another person on matters which the public is not necessarily concerned. This right is the most valued among all the other rights that man possesses. Through time immemorial, man has come up with ways on how to protect such right. From creating secret codes in communication, to building high fences around the houses, to being secretive in information which to disclose, are some of the ways how man has protected its privacy from other people. There is even a saying in Constitutional Law, quoting British Parliamentarian William Pitt, "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter -- but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement". Various protection for this most valued right were developed over the years of man’s legacy to ensure that this right shall not be violated. Laws carrying strict penalties were passed to ensure that such right shall be amply protected.
Though there is no specific provision that will speak of the right to privacy, such right is incorporated to various laws of our land ranging from the Bill of Rights in our Constitution to the Civil Code and to some Special Penal Laws. To name a few, our constitution has recognized this right to privacy by providing in our Bill of Rights that the privacy of communication and correspondence shall be inviolable. This right protects us from illegal accumulation of information through eavesdropping on private conversations. Thus, the Anti-wire Tapping Law was passed. In our Civil Code, the right to privacy is protected by providing that every person shall respect the dignity, personality, privacy and peace of mind of another person. Without the right to privacy, people can easily intrude to another person’s life without any hesitation and fear of any penalty.
Throughout the years, technology has been the number one consistent threat to privacy. With the evolution of technology, the threats to privacy became sophisticated. Our personal information are made available out in the open without us knowing it. In order to eradicate this threat to our privacy, proper safeguards must be put in place. This has been the main issue why the national identification system introduced in 1998 by the Administrative Order 308 issued by then President Fidel Ramos was declared unconstitutional by the Supreme Court. But in 2012, our legislature has successfully passed a law for the protection of our personal information gathered in the public and private sectors. This paper will try to determine whether the constitutional issues raised in the case of Ople vs Torres has been answered by Republic Act 10173 and whether the country will benefit in having a national id system.
Ople vs. Torres
In the landmark case of Ople vs. Torres, the then Senator Blas Ople filed a petition before the Supreme Court to declare the Administrative Order no. 308 issued by then President Fidel Ramos as unconstitutional. Senator Ople raised the issues that the said Administrative Order no. 308 is a usurpation by the President of the powers of the legislature and said Administrative Order violates the right to privacy which is well amply protected in the Bill of Rights.
The objective of this Administrative Order no. 308 is to create a national computerize identification reference system that will eradicate fraudulent transaction with the government by properly and efficiently identify persons seeking basic services on social security. The said order will require the collection of personal information from the population reference number generated by the National Statistics Office. The end goal of this Administrative Order is to provide convenience in transacting business between Filipino citizens and foreign residents with the government.
Senator Ople in his petition filed before the Supreme Court, said that the President has usurp the power of Congress because the establishment of a National Computerized Identification Reference System requires a legislative act. In addition to that, the Senator also said in his petition that only the Congress has the right to appropriate funds for government agencies and therefore the appropriation in the said Administrative Order is another usurpation of the power of Congress. He therefore prayed that the said Order by President Ramos be struck down as unconstitutional.
The Supreme Court speaking through Justice Puno held that the said Administrative Order is unconstitutional because it encroaches on the power of the legislative since it establishes for the first time a National Computerized Identification Reference System which might affect the primacy of national security and the extent of privacy against dossier. The Court pointed out the lack of proper safeguard in protecting the information that will be gathered from the public as one of the reasons for striking down the Administrative Order. Several justices made their own separate opinion either joining the opinion of Justice Puno or in dissenting to it. One of the dissenters, Justice Kapunan stated that striking down the said order as unconstitutional is premature at that point. One of the requisites in order for a law to be struck down is that there should be an actual case or controversy involving a conflict of rights. In the said case, there has yet none. The said Administrative Order was still in the process of being implemented as the implementing rules and regulations are still being drafted. But despite the heavy dissent of the other Justices, the vote to declare it unconstitutional won. Many of the Justices who voted against the said order favoured the possibility of abuse of discretion among the data collectors because of lack of laws to safeguard data privacy.
Data Privacy Act of 2012
Republic Act no. 10173 or better known as Data Privacy Act of 2012 was passed by the Senate and House of Representatives on June 6, 2012 and signed by President Benigno Aquino on August 15, 2012. The said law aims to ensure that personal information in information and communications system in the government and in the private sector are secured and amply protected. This law gives security to individuals that their personal data will be kept and properly secured.
The passing of this law has been considered as a victory to the people’s privacy because of the protection this law offers to the public. The number one advantage this law offers is it ensures protection to privacy. The scope of this law extends to both natural and juridical persons. The coverage of its jurisdiction extend to acts done or practice in and outside of the Philippines as long as it relates to personal information about a Philippine citizen or resident or has a link with the Philippines.
An independent body which will be known as the National Privacy Commission will be created. The Commission will be in charge of the administration and implementation of the provisions of this provided in the Data Privacy Act. The Commission shall be headed by a Privacy Commissioner who shall act as Chairman and two Deputy Privacy Commissioner to be appointed by the President of the Philippines with a term of three years, renewable for another three years. The Commission shall be attached to the Department of Information and Communications Technology. Utmost confidentiality at all times will be expected from the Commission with regard to personal information that comes to their knowledge.
The collection of personal information must be for a specified and legitimate purpose only and determined and declared beforehand. They should be processed fairly and must be kept up to date. The information collected can only be retained for as long as it is necessary for the fulfilment of the purpose for which the data was collected. This law has provided for the standard in processing the personal information. They must contain at least one of the conditions enumerated such as the data subject has given his consent; it is necessary to the fulfilment of the contract; necessary for compliance in legal obligations; it is necessary to protect important interest of the data subjects; it is necessary to respond to national interest; and the processing is necessary for the purpose of the legitimate interest.
Parameters have been set in order to prevent any unlawful use of personal data without the consent of the individual. Even the lawful heirs are given the right to exercise the rights of a data subject when the latter is deceased or incapacitated or incapable of exercising their rights. The processing of sensitive personal information and privileged information are likewise prohibited in this law except for the following instances that it enumerated. The law is complete since the criteria for the lawful processing of personal information are properly laid down in order to prevent any confusion in the implementation of this law. Penalties have been included in order to ensure that those who will break the law will think twice before doing it because of the stiff penalties they might face when they get caught. Imprisonment for a period as short as one year and as long as six years has been meted out for violations of any of the provisions of this act.
Effect of RA 10173 to Ople vs. Torres
In the case of Ople vs. Torres, the main issues raised and which was highly talked about by the public was the possible threat to privacy which the National Identification Reference System might create. The people feared that the information which will be gathered from the public might be use illegally. In 1998, when that case was decided, there were no laws to protect the public from unlawful use of information. In my opinion, if the said case was decided in today’s time where we have the Data Privacy Act of 2012, the decision by the Supreme Court might have a different result.
The way I see it, the protection offered by RA 10173 answers the worries that the justices have mentioned in the Ople vs. Torres case. Although one of the reasons for striking down the Administrative Order 308 is the usurpation of legislative duties by the executive, not all the justices supported the view that there was indeed usurpation of duties. In a dissenting opinion by Justice Kapunan, he justified the legality of the President to issue the said administrative order because the agencies involve are under the umbrella of the executive department. Therefore, the President has the power to issue orders affecting those agencies involve. This constitutional issue is a matter of interpretation. There is no concrete way on how to judge the said issue. In my opinion, I share the dissent of Justice Kapunan that it should not be considered as usurpation of duties. Justice Kapunan and Justice Puno have offered two legitimate interpretation of whether it is usurpation by the President of the legislative duties. But at the end of the day, the only reason why the said Administrative Order was struck down was because of the majority vote made by the Justices to declare it unconstitutional and therefore the opinion of Justice Puno became the case law. But given another situation were in the Data Privacy Act of 2012 was present during the deliberation of the case, I believe that the constitutionality of the Administrative Order will be upheld. The benefits of a national id system during that time can’t just be allowed to pass by.
Most of the justices decided to go against the said Administrative Order because of the lack of safeguard in our country for the protection of personal information. In the separate opinion of Justice Vitug, he recognized the importance of having a nationwide computerized identification reference system. He suggested that in order to enjoy the benefits of this nationwide id system, the country should install specific safeguards and control measures that may be calculated best to ward-off probable ill effects of any such device. For this reason, I strongly believe that the Data Privacy Act will sway the votes of most of the Justices during that time to favor in upholding the constitutionality of the said order. Proper safeguards were introduced in the Data Privacy Act for the protection of personal information collected from the public.
Now that RA 10173 is in place, I don’t see any reason why the Administrative Order 308 should be struck down in today’s time. The issue of whether it is usurpation by the President of the Legislative powers is a debatable matter. Both the affirmative and the negative sides raised good issues why it is or it is not a usurpation of Legislative power. I also believe that it is premature to declare the said order unconstitutional because it is very basic in law that when the law provides for requisites in order for a given act fall under the scope of the said law, all requisites must be present. Here, I share the opinion of the other justices who recognized the fact that there is still no actual controversy which involves the said Administrative Order. Therefore lacking one important requisite, any decision on the constitutionality of the said order is premature.
One of the fears of the Justices about having a computerized id system is that the advancement in technology brings an increase in threat to privacy. Since technology has been the consistent threat to privacy through the years, they suggested that the development of technology might bring an uncontrollable threat to privacy. This I don’t agree. I believe that side by side with the advancement in technology comes the development in privacy protection particularly that of collecting personal information. The fear that advancement in technology might expose people to the public about information which they hold private can also be eradicated by safeguard measures to privacy. As an example, nowadays, in purchasing stuff online using credit cards, most websites have a verified secured web page in order to assure the buying public that their credit card information will not be stolen during the process of buying online. Couple of years ago, we don’t have this kind of protection to the buying public. Thus, as time goes by, and technology develops, protection to privacy likewise develops. We should not be in constant fear that our privacy will be violated by the changing times and development in technology. There will always be other means that will protect our privacy as technology develops over time.
Therefore it is with my strong opinion that Republic Act 10173 or better known as Data Privacy act of 2012 has answered the constitutional issues presented by the Supreme Court in the case of Ople vs. Torres. Thus, I believe that constitutionality of the said Administrative Order will be upheld because of the Data Privacy Act.
Data Privacy Act of 2012 has given us measures that will entail protection to our privacy which is highly valuable to us. The fear of possible encroachment to our privacy brought about by the introduction of a National Computerize Identification Reference System should be set aside. Instead of worrying about something that has not yet happened, we should focus more on the benefits that a national id will give us. A law has already been passed to set up the parameters in securing that our privacy will be protected. Now is the time for our country to have a national id system. Many countries have adopted a national id system and are already reaping the benefits of it.
Studies have shown in other countries that the introduction of a national id system has helped in preventing crime or lessen its occurrence. This is because the introduction of a national id system will help to track offenders easily since personal information was collected from them. Their whereabouts can easily be traced.
We should always keep in mind that only those who are hiding something illegally should fear a national id system. Those who have clean hands should not worry a bit for the law will further protect their welfare rather than abuse it. The contention that the government might abuse this power given to them should be set aside. We should always believe in our government that what they do is always for our welfare and that it is their utmost priority. After all, we were the ones who ultimately put them into such power. Thus, we should trust our government first rather than doubt it at once.
It’s is already time for our country to maximize our potential and improve our standings in the world. There will always be pro’s and con’s in whatever decision our government will do. But in this case of introducing a national id system, the benefits are clearly greater than the cost. Therefore, it is in my humble opinion that I suggest the creation of a National Computerize Identification System to maximize the potential of our government and to minimize any fraud in its day to day transactions with the people. The only question now is up to what extent personal information should be collected.
Republic Act 10173: Data Privacy Act of 2012. Official Gazette of the Philippines.
Justice Puno, (1998). Ople vs. Torres. Supreme Court of the Philippines.
Senate Economic Planning Office. National Identification System: Do we need one? Retrieved May 1, 2013. http://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf