Privacy of Communication and Correspondence

5/24/2018 Privacy of Communication and Correspondence

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G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,vs.

HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the pr ivaterespondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious

mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy."1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages,attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs,interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil casewas based was culled from a tape recording of the confrontation made by petitioner.

2The transcript

reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi)

Good Afternoon M'am.

Defendant Ester S. Garcia (ESG)Ano ba ang nangyari sa 'yo,nakalimot ka na kung paano ka napunta rito, porke member ka na,magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHIKasi, naka duty ako noon.

ESGTapos iniwan no. (Sic)

CHUCHIHindi m'am, pero ilan beses na nila akong binalikan, sabingganoon

ESG

Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explainka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok.Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sareview mo, kung kakailanganin ang certification mo, kalimutan mo nakasi hindi ka sa akin makakahingi.

CHUCHIHindi M'am. Kasi ang ano ko talaga noon i -cocontinue ko upto 10:00 p.m.

ESGBastos ka, nakalimutan mo na kung paano ka pumasok dito sahotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo nakung paano ka nakapasok dito "Do you think that on your own

makakapasok ka kung hindi ako. Panunumbyoyan na kita(Sinusumbatan na kita).

CHUCHIItutuloy ko na M'am sana ang duty ko.

ESGKaso ilang beses na akong binabalikan doon ng mga no (sic) ko.


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ESGNakalimutan mo na ba kung paano ka pumasok sa hotel, kungon your own merit alam ko naman kung gaano ka "ka bobo" mo. Maramiang nag-aaply alam kong hindi ka papasa.

CHUCHIKumuha kami ng exam noon.

ESG

Oo, pero hindi ka papasa.

CHUCHIEh, bakit ako ang nakuha ni Dr. Tamayo

ESGKukunin ka kasi ako.

CHUCHIEh, di sana

ESGHuwag mong ipagmalaki na may utak ka kasi wala kang utak.

Akala mo ba makukuha ka dito kung hindi ako.

CHUCHIMag-eexplain ako.

ESGHuwag na, hindi ako mag-papa-explain sa 'yo, makaalala kakung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak

ng nanay at tatay mo ang mga magulang ko.

ESGWala na akong pakialam, dahil nandito ka sa loob, nasa labaska puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

CHUCHIKasi M'am, binbalikan ako ng mga taga Union.

ESGNandiyan na rin ako, pero huwag mong kalimutan na hindi kamakakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang saakin, dahil tapos ka na.

CHUCHIIna-ano ko m'am na utang na loob.

ESGHuwag na lang, hindi mo utang na loob, kasi kung baga sa no,nilapastangan mo ako.

CHUCHIPaano kita nilapastanganan?

ESGMabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo.Lumabas ka na. Magsumbong ka.

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As a result of petitioner's recording of the event and alleging that the said act of secretly taping the

confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of PasayCity for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and otherrelated violations of private communication, and other purposes." An information charging petitioner ofviolation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation ofRepublic Act No. 4200, committed as follows:


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That on or about the 22nd day of February, 1988, in Pasay City MetroManila, Philippines, and within the jurisdiction of this honorable court, theabove-named accused, Socorro D. Ramirez not being authorized byEster S. Garcia to record the latter's conversation with said accused, didthen and there willfully, unlawfully and feloniously, with the use of a taperecorder secretly record the said conversation and thereaftercommunicate in writing the contents of the said recording to otherperson.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETAAsst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground thatthe facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3,1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not

constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a thetaping of a communication by a person otherthan a participant to the communication.

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From the trial court's Order, the private respondent filed a Petition for Review on Certiorariwith this Court,which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19,1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trialcourt's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A.4200. In thus quashing the information based on the ground that the facts alleged do not

constitute an offense, the respondent judge acted in grave abuse of discretion correctibleby certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondentCourt of Appeals denied in its Resolution

6dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"7that the applicable provision of Republic

Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation.She contends that the provision merely refers to the unauthorized taping of a private conversation by aparty other than those involved in the communication.

8In relation to this, petitioner avers that the

substance or content of the conversation must be alleged in the Information, otherwise the facts chargedwould not constitute a violation of R.A. 4200.

9Finally, petitioner agues that R.A. 4200 penalizes the

taping of a "private communication," not a "private conversation" and that consequently, her act of

secretly taping her conversation with private respondent was not illegal under the said act.

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We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of astatute is clear and unambiguous, the law is applied according to its express terms, and interpretationwould be resorted to only where a literal interpretation would be either impossible

11or absurb or would

lead to an injustice.12


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Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other RelatedViolations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to anyprivate communication or spoken word, to tap any wire or cable, or by using any otherdevice or arrangement, to secretly overhear, intercept, or record such communication or

spoken word by using a device commonly known as a dictaphone or dictagraph ordetectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by allthe parties to any private communication to secretly record such communication by means of a taperecorder. The law makes no distinction as to whether the party sought to be penalized by the statuteought to be a party other than or different from those involved in the private communication. The statute'sintent to penalize all persons unauthorized to make such recording is underscored by the use of thequalifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privyto a communication who records his private conversation with another without the knowledge of the latter(will) qualify as a violator"

13under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion

that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized taperecording of private conversations or communications taken either by the parties themselves or by thirdpersons. Thus:

xxx xxx xxx

Senator Taada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy wouldnot appear to be material. Now, suppose, Your Honor, the recording is not made by allthe parties but by some parties and involved not criminal cases that would be mentionedunder section 3 but would cover, for example civil cases or special proceedings wherebya recording is made not necessarily by all the parties but perhaps by some in an effort toshow the intent of the parties because the actuation of the parties prior, simultaneouseven subsequent to the contract or the act may be indicative of their intention. Supposethere is such a recording, would you say, Your Honor, that the intention is to cover itwithin the purview of this bill or outside?

Senator Taada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense butas evidence to be used in Civil Cases or special proceedings?

Senator Taada: That is right. This is a complete ban on tape recorded conversationstaken without the authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Taada: I believe it is reasonable becauseit is not sporting to record theobservation of one without his knowing it and then using it against him.It is not fair, it isnot sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I

believe that all the parties should know that the observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.


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Senator Taada: Well no. For example, I was to say that in meetings of the board ofdirectors where a tape recording is taken, there is no objection to this if all the partiesknow. It is but fair that the people whose remarks and observations are being madeshould know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Taada: That is why when we take statements of persons, we say: "Please beinformed that whatever you say here may be used against you." That is fairness and thatis what we demand. Now, in spite of that warning, he makes damaging statementsagainst his own interest, well, he cannot complain any more. But if you are going to takea recording of the observations and remarks of a person without him knowing that it isbeing taped or recorded, without him knowing that what is being recorded may be usedagainst him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as nowworded, if a party secretly records a public speech, he would be penalized under Section

1? Because the speech is public, but the recording is done secretly.

Senator Taada: Well, that particular aspect is not contemplated by the bill. It is thecommunication between one person and another person not between a speaker and a

public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoteddeliberations from the Congressional Record, therefore plainly supports the view held by the respondentcourt that the provision seeks to penalize even those privy to the private communications. Where the lawmakes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of thesame need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts ofsecretly overhearing, intercepting or recording private communications by means of the devicesenumerated therein. The mere allegation that an individual made a secret recording of a privatecommunication by means of a tape recorder would suffice to constitute an offense under Section 1 ofR.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere

(in the said law) is it required that before one can be regarded as a violator, the nature of theconversation, as well as its communication to a third person should be professed."

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Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does notinclude "private conversations" narrows the ordinary meaning of the word "communication" to a point ofabsurdity. The word communicate comes from the latin word communicare, meaning "to share or toimpart." In its ordinary signification, communication connotes the act of sharing or imparting signification,communication connotes the act of sharing or imparting, as in a conversation,

15or signifies the "process

by which meanings or thoughts are shared between individuals through a common system of symbols (as


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language signs or gestures)"16

These definitions are broad enough to include verbal or non-verbal,written or expressive communications of "meanings or thoughts" which are likely to include theemotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in theprivacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "privatecommunication" are, furthermore, put to rest by the fact that the terms "conversation" and"communication" were interchangeably used by Senator Taada in his Explanatory Note to the bill quoted

below:

It has been said that innocent people have nothing to fear from their conversationsbeingoverheard. But this statement ignores the usual nature of conversationsas well theundeniable fact that most, if not all, civilized people have some aspects of their lives theydo not wish to expose. Free conversationsare often characterized by exaggerations,obscenity, agreeable falsehoods, and the expression of anti-social desires of views notintended to be taken seriously. The right to theprivacy of communication, among others,has expressly been assured by our Constitution. Needless to state here, the framers ofour Constitution must have recognized the nature of conversationsbetween individualsand the significance of man's spiritual nature, of his feelings and of his intellect. Theymust have known that part of the pleasures and satisfactions of life are to be found in theunaudited, and free exchange of communicationbetween individualsfree from everyunjustifiable intrusion by whatever means.

17

In Gaanan vs.Intermediate Appellate Court,18

a case which dealt with the issue of telephonewiretapping, we held that the use of a telephone extension for the purpose of overhearing a privateconversation without authorization did not violate R.A. 4200 because a telephone extension devise wasneither among those "device(s) or arrangement(s)" enumerated therein,

19following the principle that

"penal statutes must be construed strictly in favor of the accused."20

The instant case turns on a differentnote, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from noambiguity, and the statute itself explicitly mentions the unauthorized "recording" of privatecommunications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leavesus with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Padilla, Davide, Jr. and Bellosillo JJ., concur.

Hermosisima, Jr., J., is on leave.

Footnotes

1 Docketed as Civil Case No. 88-403, Regional Trial Court, Makati, Branch 64.

2 Rollo, p. 48.

3 Rollo, pp. 47-48.

4 Rollo, p. 9.

5 Rollo, p. 37.

6 Rollo, p. 99, Annex "H".


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7 Rollo, p. 13.

8 Id.

9 Rollo, p. 14.

10 Rollo, p. 14-15.

11 Pacific Oxygen and Acytelene Co. vs. Central Bank 37 SCRA 685 (1971).

12 Casela v. Court of Appeals, 35 SCRA 279 (1970).

13 Rollo, p. 33.

14 Rollo, p. 67.

15 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1976).

16 Id.

17 CONGRESSIONAL RECORD, Vol. III, No. 31, at 573 (March 10, 1964).

18 145 SCRA 112 (1986). See also, Salcedo-Ortanez v. CA 235 SCRA 111

(1994).

19 Id., at 120.

20 Id., at 121.

The Lawphil Project - Arellano Law Foundation


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G.R. No. 107383 February 20, 1996

CECILIA ZULUETA,petitioner,vs.

COURT OF APPEALS and ALFREDO MARTIN, respondents.

D E C I S I O N

MENDOZA, J.:

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

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

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her

mother, a driver and private respondent's secretary, forcibly opened the drawers and cabinet inher husband's clinic and took 157 documents consisting of private correspondence between Dr.

Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin'spassport, 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 hadfiled 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 "thecapital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint orthose further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and

any person acting in her behalf to a immediately return the properties to Dr. Martin and to payhim 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 andpetitioner 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 ofAppeals 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 hisknowledge 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 andenjoined 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.,

1this 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 did not constitute malpractice or gross misconduct, For this
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reason it is contended that the Court of Appeals erred in affirming the decision of the trial courtinstead 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 misconductbecause of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix,Jr., this Court took note of the following defense of Atty. Felix; Jr. which it found to be

"impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he

maintains that:

. . . .

4. When respondent refiled Cecilia's case for legal separation before the Pasig RegionalTrial 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, howeverhaving 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 thetrial 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 belooked 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 beenmalpractice 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 submitsit is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martinhimself under oath, Such verified admission constitutes an affidavit, and, therefore,

receivable in evidence against him. Petitioner became bound by his admission. ForCecilia 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 adeclaration that his use of the documents and papers for the purpose of securing Dr. Martin's

admission as to their genuiness and authenticity did not constitute a violation of the injunctiveorder 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 thewrit of preliminary injunction issued by the trial court, it was only because, at the time he usedthe 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
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filed by petitioner against the trial court's order was dismissed and, therefore, the prohibitionagainst the further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutionalinjunction declaring "the privacy of communication and correspondence [to be] inviolable"3is noless 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 onlyexception 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."4Any 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 drawersand 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 ofthe affected spouse while the marriage subsists.

6Neither may be examined without the consent

of the other as to any communication received in confidence by one from the other during themarriage, save for specified exceptions.

7But one thing is freedom of communication; quite

another is a compulsion for each one to share what one knows with the other. And this hasnothing 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.

Regalado, Romero and Puno, JJ.,concur.

Footnotes

1163 SCRA 111(1988).

2

Id. at 120-121, 126.

31973 CONST., Art. IV, 4(1); 1987 CONST., Art. III, 3(1).

4Id.

51973 CONST., ART. IV, 4(2); 1987 CONST., Art. III, 3(2).
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6Rule 130, 22.

7Rule 130, 24.
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G.R. No. 121087 August 26, 1999

FELIPE NAVARRO,petitioner,vs.

THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

This is a petition for review on certiorariof the decision1of the Court of Appeals, dated

December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, LucenaCity, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of

homicide and sentencing him to ten (10) years ofprision mayor, as minimum, and fourteen (14)years and eight (8) months, and (1) day of reclusion temporal, as maximum, but increased the

death indemnity awarded to the heirs of the victim, Enrique "Ike" Lingan, from P30,000.00 toP50,000.00.

The information against petitioner alleged

That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena,

Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, thesaid accused, being then a member of the Lucena Integrated National Police, with intent

to kill, did then and there willfully, unlawfully and feloniously assault one Ike Linganinside the Lucena police headquarters, where authorities are supposed to be engaged in

the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of agun and thereafter when the said victim fell, by banging his head against the concrete

pavement, as a consequence of which said Ike Lingan suffered cerebral concussion andshock which directly caused his death.

The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena andEnrique "Ike" Lingan, who were reporters of the radio station DWTI in Lucena City, together

with one Mario Ilagan, went to the Entertainment City following reports that it was showing thenude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad

dancer appeared on stage and began to perform a strip act. As she removed her brassieres,Jalbuena brought out his camera and took a picture.2

At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached

Jalbuena and demanded to know why he took a picture.3Jalbuena replied: "Wala kang pakialam,

because this is my job."4Sioco pushed Jalbuena towards the table as he warned the latter that he

would kill him.

5

When Jalbuena saw that Sioco was about to pull out his gun, he ran out of thejoint followed by his companions.6

Jalbuena and his companions went to the police station to report the matter. Three of the

policeman on duty, including petitioner Navarro, were having drinks in front of the policestation, and they asked Jalbuena and his companions to join them. Jalbuena declined and went tothe desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a

motorcycle.7


13/

Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for aroundfifteen minutes.

8Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall,

said to him: "Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo bakilala?"

9Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face

of Jalbuena, said "Ano, uutasin na kita?"10

At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyanpumarito kami para magpa-blotter, I am here to mediate."11Petitoner Navarro replied: "Walang

press, press, mag-sampu pa kayo."12

He then turned to Sgt. Aonuevo and told him to make ofrecord the behavior of Jalbuena and Lingan.

13

This angered Lingan, who said: "O, di ilagay mo diyan"14

Petitioner Navarro retorted: "Talagang

ilalagay ko."15

The two then had a heated exchange.16

Finally, Lingan said: "Masyado kangabusado, alisin mo yang baril mo at magsuntukan na lang tayo."17Petitioner Navarro replied:

"Ah, ganoon?"18

As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol abovethe left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, butpetitioner Navarro gave him a fist blow on the forehead which floored him.

19

Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si Ike

Lingan and naghamon."20

He said to Sgt. Aonuevo: "Ilagay mo diyan sa blotter sa harap ni AlexSioco at Dante Liquin, na si Ike Lingan ang naghamon."

21He then poked his gun at the right

temple of Jalbuena and made him sign his name on the blotter.22Jalbuena could not affix hissignature. His right hand was trembling and he simply wrote his name in print.

23

Capt. Coronado, the station commander, called petitioner Navarro to his office, while a

policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy,Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But

Lingan died from his injuries.24

Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between

petitioner and the deceased.25The following is an excerpt from the tape recording:

Lingan: Pare, you are abusing yourself.

Navarro: Who is that abusing?

Lingan: I'm here to mediate. Do not include me in the problem. I'm out of the problem.

x x x x x x x x x

Navarro: Wala sa akin yan. Ang kaso lang . . .


14/

Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fightwith me. I just came here to ayusin things. Do not say bad things against me. I'm the

number one loko sa media. I'm the best media man. . . .

Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag

mong sabihing loko ka!

Lingan: I'm brave also.

Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akindahil nag-tatrabaho lang ako ng ayon sa serbisyo ko.

Lingan: You are challenging me and him. . . .

Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may

balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang

minomonopoly mo eh.

Lingan: Pati ako kalaban ninyo.

Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!

Lingan: You are wrong. Bakit kalaban nyo ang press?

Navarro: Pulis ito! Aba!

Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.

Navarro: Mayabang ka ah!

(Sounds of a scuffle)

Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigokayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon

ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntoklang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon

ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.

Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he(petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice,

each time hitting his head on the concrete.26

In giving credence to the evidence for the prosecution, the trial court stated:

After a thorough and in-depth evaluation of the evidence adduced by the prosecution and

the defense, this court finds that the evidence for the prosecution is the more credible,


15/

concrete and sufficient to create that moral certainty in the mind of the court that accusedherein is criminally responsible.

The defense's evidence which consists of outright denial could not under the

circumstance overturn the strength of the prosecution's evidence.

This court finds that the prosecution witnesses, more particularly Stanley Jalbuena,lacked any motive to make false accusation, distort the truth, testify falsehood or cause

accusation of one who had neither brought him harm or injury.

Going over the evidence on record, thepostmortemreport issued by Dra. Eva Yamamoto

confirms the detailed account given by Stanley Jalbuena on how Lingan sustained headinjuries.

Saidpost-mortemreport together with the testimony of Jalbuena sufficiently belie the

claim of the defense that the head injuries of deceased Lingan were caused by the latter's

falling down on the concrete pavement head first.

The Court of Appeals affirmed:

We are far from being convinced by appellant's aforesaid disquisition. We have carefullyevaluated the conflicting versions of the incident as presented by both parties, and we

find the trial court's factual conclusions to have better and stronger evidentiary support.

In the first place, the mere fact that Jalbuena was himself a victim of appellant'saggression does not impair the probative worth of his positive and logical account of the

incident in question. In fact, far from proving his innocence, appellant's unwarranted

assault upon Jalbuena, which the defense has virtually admitted, clearly betrays hisviolent character or disposition and his capacity to harm others. Apparently, the samemotivation that led him into assailing Jalbuena must have provoked him into also

attacking Lingan who had interceded for Jalbuena and humiliated him and furtherchallenged to a fist fight.1wphi1.nt

x x x x x x x x x

On the other hand, appellant's explanation as how Lingan was injured is too tenuous andillogical to be accepted. It is in fact contradicted by the number, nature and location of

Lingan's injuries as shown in thepost-mortemreport (Exh. D). According to the defense,

Lingan fell two times when he was outbalanced in the course of boxing the appellant.And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between hisleft and right eyebrows, and contusion in the right temporal region of the head (Exh. E.).

Certainly, these injuries could not have been resulted from Lingan's accidental fall.

Hence, this appeal. Petitioner Navarro contends:


16/

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT INACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE

SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION,SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY

MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF

DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS;ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITSFINDING IS DEVOID OF SUPPORT IN THE RECORD.

The appeal is without merit.

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that

he was a biased witness, having a grudge against him. The testimony of a witness who has aninterest in the conviction of the accused is not, for this reason alone, unreliable.27Trial courts,

which have the opportunity observe the facial expressions, gestures, and tones of voice of awitness while testifying, are competent to determine whether his or her testimony should be

given credence.

28

In the instant case, petitioner Navarro has not shown that the trial court erred inaccording weight to the testimony of Jalbuena.

Indeed, Jalbuena's testimony is confirmed by the voice recording had made. It may be askedwhether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The

answer is in the affirmative. The law provides:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to anyprivate 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 orspoken word by using a device commonly known as dictaphone or dictagraph of

dectectaphone or walkie-talkie or tape-recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or actspenalized in the next preceding sentence, to knowingly possess any tape record, wire

record, disc record, or any other such record, or copies thereof, of any communication orspoken word secured either before or after the effective date of this Act in the manner

prohibited by this law; or to replay the same for any other person or persons; or tocommunicate the contents thereof, either verbally or in writing, or to furnish

transcriptions thereof, whether complete or partial, to any other person: Provided, Thatthe use of such record or any copies thereof as evidence in any civil, criminal

investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by

this prohibition.

x x x x x x x x x

Sec. 4. Any communication or spoken word, or the existence, contents, substance,purport, effect, 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


17/

Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative oradministrative hearing or investigation.

Thus, the law prohibits the overhearing, intercepting, or recording of private communications.29

Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is

not prohibited.

Nor is there any question that it was duly authenticated. A voice recording is authenticated by the

testimony of a witness (1) that he personally recorded the conversations; (2) that the tape playedin the court was the one he recorded; and (3) that the voices on the tape are those of the persons

such are claimed to belong.30

In the instant case, Jalbuena testified that he personally made thevoice recording;

31that the tape played in the court was the one he recorded;

32and that the

speakers on the tape were petitioner Navarro and Lingan.33

A sufficient foundation was thus laidfor the authentication of the tape presented by the prosecution.

Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange

between petitioner Navarro and Lingan on the placing in the police blotter of an entry againsthim and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro andLingan, with the latter getting the worst of it.

Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the

medical certificate,34

dated February 5, 1990, containing the following findings:

Post MortemFindings:

= Dried blood, forehead & face

= No blood oozed from the ears, nose & mouth

= Swelling, 3 cm x 2 cm, temporal region, head, right

= Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left

= Lacerated wound, 0.5 cm in length, superficial, between the left & righteyebrow

= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes

CAUSE OF DEATH:

= CEREBRAL CONCUSSION & SHOCK

= BLOW ON THE HEAD


18/4

Dr. Yamamato testified:

Q Give your opinion as to what was the possible cause of this findings number one,which is oozing of blood from the forehead?

A It may be due to a blow on the forehead or it bumped to a hard object, sir.

Q Could a metal like a butt of a gun have caused this wound No. 1.?

A It is possible, sir.

Q And in the alternative, could have it been caused by bumping on a concrete floor?

A Possible, sir.

FISCAL:

What could have been the cause of the contusion and swelling under your findings No.2 doctor?

WITNESS:

It may be caused by bumping to a hard object, sir.

Q Could a butt of a gun have caused it doctor?

A The swelling is big so it could have not been caused by a butt of a gun because the

butt of a gun is small, sir.

Q How about this findings No. 4?

A By a bump or contact of the body to a hard object, sir.

Q And findings No. 5 what could have caused it?

A Same cause, sir.

Q This findings No. 6 what could have caused this wound?

A Same thing sir.

Q How about the last finding, cyanosis of tips of fingers and toes, what could havecaused it doctor?

WITNESS:


19/

It indicates there was cardiac failure, sir.

FISCAL:

In this samepost mortemreport and under the heading cause of death it states: Cause

of Death: Cerebral concussion and Shock, will you explain it?

A Cerebral concussion means in Tagalog "naalog ang utak" or jarring of the brain, sir.

Q What could have been the cause of jarring of the brain?

A It could have been caused by a blow of a hard object, sir.

Q What about the shock, what could have caused it?

A It was due to peripheral circulatory failure, sir.

Q Could any one of both caused the death of the victim?

A Yes, sir.

Q Could cerebral concussion alone have caused the death of the deceased?

A May be, sir.

FISCAL:

Which of these two more likely, to cause death?

WITNESS:

Shock, sir.

Q Please explain further the meaning of the medical term shock?

A It is caused by peripheral circulatory failure as I have said earlier sir.

x x x x x x x x x

FISCAL:

Could a bumping or pushing of one's head against a concrete floor have caused shock?

WITNESS:

Possible, sir.


20/

How about striking with a butt of a gun, could it cause shock?

A Possible, sir.35

The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit

Lingan with the handle of his pistol above the left eyebrow and struck him on theforehead with his fist.

Third. It is argued that the mitigating circumstances of sufficient provocation or threat onthe part of the offended party immediately preceding the act should have beenappreciated in favor of petitioner Navarro. Provocation is defined to be any unjust orimproper conduct or act of the offended party, capable of exciting, inciting or irritatinganyone.36The provocation must be sufficient and should immediately precede the act.37To be sufficient, it must be adequate to excite a person to commit the wrong, whichmust accordingly be proportionate in gravity.38And it must immediately precede the actso much so that there is no interval between the provocation by the offended party and

the commission of the crime by the accused.

39

In the present case, the remarks of Lingan, which immediately preceded the act ofpetitioner, constituted sufficient provocation. In People v.Macaso,40we appreciated thismitigating circumstance in favor of the accused, a policeman, who shot a motorist afterthe latter had repeatedly taunted him with defiant words. Hence, this mitigatingcircumstance should be considered in favor of petitioner Navarro.

Furthermore, the mitigating circumstance that the offender had no intention to commitso grave a wrong as that committed should also be appreciated in favor of petitioner.The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who

provoked him shows that he had no intent to kill the latter. Thus, this mitigatingcircumstance should be taken into account in determining the penalty that should beimposed on petitioner Navarro. The allowance of this mitigating circumstance isconsistent with the rule that criminal liability shall be incurred by any person committinga felony although the wrongful act done be different from that which he intended.41InPeople v.Castro,42the mitigating circumstance of lack of intent to commit so grave awrong as that committed was appreciated in favor of the accused while finding himguilty of homicide.

However, the aggravating circumstance of commission of a crime in a place where thepublic authorities are engaged in the discharge of their duties should be appreciated

against petitioner Navarro. The offense in this case was committed right in the policestation where policemen were discharging their public functions.43

The crime committed as found by the trial court and the Court of Appeals was homicide,for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal.

As there were two mitigating circumstances and one aggravating circumstances, thepenalty should be fixed in its minimum period.44Applying the Indeterminate SentenceLaw, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum


21/

of which is within the range of the penalty next lower degree, i.e.,prision mayor, and themaximum of which is reclusion temporalin its minimum period.45

The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 isin accordance with the current jurisprudence.46

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modificationthat petitioner Felipe Navarro is hereby SENTENCED to suffer a prison terms of 18years ofprision mayor, as minimum, to 14 years and 8 months of reclusion temporal, asmaximum.

SO ORDERED.1wphi1.nt

Bellosillo, Quisumbing and Buena, JJ., concur.

Footnotes

1Per Justice Godardo A. Jacinto and concurred in by Justices Ricardo J.Francisco and Ramon A. Barcelona.

2TSN, pp. 4-8, May 28, 1990.

3Id., pp. 9-10.

4Id., p. 10.

5Id., pp. 10-11.

6Id., p. 11.

7Id., pp. 11-14.

8Id., p. 15.

9

Id., pp. 16-17.

10Id., p. 20.

11Id., p. 23.

12Ibid.


22/

13Id., p. 24.

14Ibid.

15Id., p. 25.

16Ibid.

17Id., p. 26.

18Ibid.

19Id., pp. 26-32.

20Id., p. 32.

21

Id., p. 34.

22Id., pp. 34-35.

23Id., pp. 35-37.

24Id., pp. 45-53.

25TSN, pp. 8-11, June 26, 1990.

26TSN, pp. 5-6, Sept. 16, 1991.

27SeePeople v. Mandal, 188 SCRA 526 (1990).

28People v. Padilla, G.R. No. 126124, January 20, 1999.

29Ramirez v. Court of Appeals, 248 SCRA 590 (1995).

30United States v. Jones, 730 F. 2d. 593 (1984).

31TSN, pp. 8-22.

32

Id., pp. 11-13.

33Id., p. 11.

34Records, p. 56.

35TSN, pp. 7-11, Aug. 23, 1990.


23/

36Pepito v. Court of Appeals, G.R. No. 119942, July 8, 1999.

37People v. Paga, 79 SCRA 570 (1977).

38People v. Nabora, 73 Phil. 434 (1941).

39Supra, note 35.

4064 SCRA 659 (1975).

41REVISED PENAL CODE, Art. 4.

42117 SCRA 1014 (1982).

43People v. Regala, 113 SCRA 613 (1982).

44

REVISED PENAL CODE, Art. 64.

45Act No. 4103, 1.

46E.g., Pepito v. Court of Appeals, G.R. No. 119942, July 8, 1999.

The Lawphil Project - Arellano Law Foundation


24/

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 andCHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right to privacy, which the

revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the right most valued by civilized men."1Petitioner

Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of a National ComputerizedIdentification Reference System" on two important constitutional grounds, viz: one, it is a usurpation of thepower of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone ofprivacy. We grant the petition for the rights sought to be vindicated by the petitioner need strongerbarriers against further erosion.

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

ADOPTION OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with thefacility to conveniently transact business with basic service and social security providersand 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 eradicatefraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services andsocial security providing agencies and other government intrumentalities is required toachieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines,by virtue of the powers vested in me by law, do hereby direct the following:

Sec. 1. Establishment of a National Compoterized Identification Reference System. Adecentralized 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 theSystem is hereby created, chaired by the Executive Secretary, with the following asmembers:

Head, Presidential Management Staff


25/

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government

Secretary, Department of Health

Administrator, Government Service Insurance System,

Administrator, Social Security System,

Administrator, National Statistics Office

Managing Director, National Computer Center.

Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated assecretariat to the IACC and as such shall provide administrative and technical support tothe IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generatedby the NSO shall serve as the common reference number to establish a linkage amongconcerned agencies. The IACC Secretariat shall coordinate with the different SocialSecurity and Services Agencies to establish the standards in the use of BiometricsTechnology and in computer application designs of their respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office of the PressSecretary, in coordination with the National Statistics Office, the GSIS and SSS as leadagencies and other concerned agencies shall undertake a massive tri-media informationdissemination campaign to educate and raise public awareness on the importance anduse 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 regularreports to the Office of the President through the IACC, on the status of implementationof 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, NineteenHundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then ExecutiveSecretary 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:


26/

A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATIONREFERENCE 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 LEGISLATIVEPOWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THEIMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OFTHE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOREXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THEGROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTSENSHRINED IN THE CONSTITUTION.

2

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT AJUDICIAL REVIEW;

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

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATIONREFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THECONCERNED AGENCIES;

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

We now resolve.

I

As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing tosue of the petitioner and the justiciability of the case at bar. More specifically, respondents aver thatpetitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to bepromulgated.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of ourSenate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue thatthe issuance of A.O. No. 308 is a usurpation of legislative power.

4As taxpayer and member of the

Government Service Insurance System (GSIS), petitioner can also impugn the legality of themisalignment 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 rulesof A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalidper seand asinfirmed on its face. His action is not premature for the rules yet to be promulgated cannot cure its fataldefects. Moreover, the respondents themselves have started the implementation of A.O. No. 308 withoutwaiting for the rules. As early as January 19, 1997, respondent Social Security System (SSS) caused thepublication of a notice to bid for the manufacture of the National Identification (ID) card.

6Respondent

Executive Secretary Torres has publicly announced that representatives from the GSIS and the SSShave completed the guidelines for the national identification system.

7All signals from the respondents


27/

show their unswerving will to implement A.O. No. 308 and we need not wait for the formality of the rulesto pass judgment on its constitutionality. In this light, the dissenters insistence that we tighten the rule onstanding is not a commendable stance as its result would be to throttle an important constitutionalprinciple and a fundamental right.

II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative orderbut a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308establishes a system of identification that is all-encompassing in scope, affects the l ife and liberty of everyFilipino 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 isunderstandable. The blurring of the demarcation line between the power of the Legislature to make lawsand the power of the Executive to execute laws will disturb their delicate balance of power and cannot beallowed. Hence, the exercise by one branch of government of power belonging to another will be given astricter 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." 8The Constitution, as thewill of the people in their original, sovereign and unlimited capacity, has vested this power in theCongress of the Philippines.

9The 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.

12In fine, except as limited by the Constitution, either

expressly or impliedly, legislative power embraces all subjects and extends to matters of general concernor common interest.

13

While Congress is vested with the power to enact laws, the President executes the laws.14

The executivepower is vested in the Presidents.

15It 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 thegovernment as a whole and sees to i t that all laws are enforced by the officials and employees of hisdepartment.

18He 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 orinterfere with the discretion of its officials.

19Corollary 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 dischargehis duties effectively.

20

Administrative power is concerned with the work of applying policies and enforcing orders as determinedby proper governmental organs.

21It 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 tobe covered by an administrative order. An administrative order is:

Sec. 3.Administrative Orders.Acts of the President which relate to particular aspectsof governmental operation in pursuance of his duties as administrative head shall bepromulgated in administrative orders.

23


28/4

An administrative order is an ordinance issued by the President which relates to specific aspectsin the administrative operation of government. It must be in harmony with the law and should befor the sole purpose of implementing the law and carrying out the legislative policy.

24We reject

the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of1987. The Code is a general law and "incorporates in a unified document the major structural,functional and procedural principles of governance."

25and "embodies changes in administrative

structure and procedures designed to serve thepeople." 26The 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, BookIII on the Office of the President, Book IV on the Executive Branch, Book V on ConstitutionalCommissions, Book VI on National Government Budgeting, and Book VII on AdministrativeProcedure. These Books contain provisions on the organization, powers and generaladministration of the executive, legislative and judicial branches of government, the organizationand administration of departments, bureaus and offices under the executive branch, theorganization and functions of the Constitutional Commissions and other constitutional bodies, therules on the national government budget, as well as guideline for the exercise by administrativeagencies of quasi-legislative and quasi-judicial powers. The Code covers both the internaladministration of government, i.e,internal organization, personnel and recruitment, supervisionand discipline, and the effects of the functions performed by administrative officials on privateindividuals or parties outside government.

27

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. Itestablishes for the first time a National Computerized Identification Reference System. Such a Systemrequires a delicate adjustment of various contending state policiesthe primacy of national security, theextent of privacy interest against dossier-gathering by government, the choice of policies, etc. Indeed, thedissent 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-vistheState as well as the line that separates the administrative power of the President to make rules and thelegislative power of Congress, it ought to be evident that it deals with a subject that should be covered bylaw.

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

Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation andconsequently erodes the plenary power of Congress to make laws. This is contrary to the establishedapproach defining the traditional limits of administrative legislation. As well stated by Fisher: ". . . Manyregulations however, bear directly on the public. It is here that administrative legislation must he restrictedin 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 entitledto respect, the authority to prescribe rules and regulations is not an independent source of power to makelaws." 28

III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutionalmuster as an administrative legislation because facially it violates the right to privacy. The essence ofprivacy is the "right to be let alone."

29In the 1965 case of Griswold v. Connecticut,

30the United States

Supreme Court gave more substance to the right of privacy when it ruled that the right has a


29/

constitutional foundation. It held that there is a right of privacy which can be found within the penumbrasof the First, Third, Fourth, Fifth and Ninth Amendments,

31viz:

Specific guarantees in the Bill of Rights have penumbras formed by emanations fromthese guarantees that help give them life and substance . . . various guarantees createzones 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 thequartering of soldiers "in any house" in time of peace without the consent of the owner isanother facet of that privacy. The Fourth Amendment explicitly affirms the ''right of thepeople to be secure in their persons, houses and effects, against unreasonable searchesand seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen tocreate a zone of privacy which government may not force him to surrender to hisdetriment. The Ninth Amendment provides: "The enumeration in the Constitution, ofcertain 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 constitutionalright 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 ofcontraceptives a criminal offence on the ground of its amounting to an unconstitutionalinvasion of the right of privacy of married persons; rightfully it stressed "a relationshiplying within the zone of privacy created by several fundamental constitutionalguarantees." It has wider implications though. The constitutional right to privacy hascome into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognitionindependently of its identification with liberty; in itself, it is fully deserving of constitutionalprotection. The language of Prof. Emerson is particularly apt: "The concept of limitedgovernment has always included the idea that governmental powers stop short of certainintrusions 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 theindividual, in all aspects of his life, is the hallmark of the absolute state. In contrast, asystem of limited government safeguards a private sector, which belongs to theindividual, 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 ofthe individualhas become increasingly important as modern society has developed.

All the forces of a technological ageindustrialization, urbanization, and organizationoperate to narrow the area of privacy and facilitate intrusion into it. In modern terms, thecapacity to maintain and support this enclave of private life marks the difference betweena democratic and a totalitarian society."

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined inseveral provisions of our Constitution.

33It is expressly recognized in section 3 (1) of the Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable exceptupon lawful order of the court, or when public safety or order requires otherwise asprescribed by law.

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

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law,nor shall any person be denied the equal protection of the laws.


30/

Sec. 2. The right of the people to be secure in their persons, houses papers, and effectsagainst unreasonable searches and seizures of whatever nature and for any purposeshall be inviolable, and no search warrant or warrant of arrest shall issue except uponprobable cause to be determined personally by the judge after examination under oath oraffirmation of the complainant and the witnesses he may produce, and particularlydescribing 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 lawshall not be impaired except upon lawful order of the court. Neither shall the right to travelbe impaired except in the interest of national security, public safety, or public health asmay be provided by law.

xxx xxx xxx

Sec. 8. The right of the people, including those employed in the public and privatesectors, to form unions, associations, or societies for purposes not contrary to law shallnot 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]veryperson shall respect the dignity, personality, privacy and peace of mind of his neighbors and otherpersons" and punishes as actionable torts several acts by a person of meddling and prying into theprivacy of another.

35It 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 andother private communications.

37The 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 privacyis an offense in special laws like the Anti-Wiretapping Law,

41the Secrecy of Bank Deposits Act

42and the

Intellectual Property Code.43

The Rules of Court on privileged communication likewise recognize theprivacy of certain information.

44

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental rightguaranteed 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 twoconsiderations: (1) the need to provides our citizens and foreigners with the facility to convenientlytransact business with basic service and social security providers and other government instrumentalitiesand (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations bypersons seeking basic services. It is debatable whether these interests are compelling enough to warrantthe issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadthof A.O. No. 308 which if implemented will put our people's right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN)

as a "common reference number to establish a linkage among concerned agencies" through the use of"Biometrics Technology" and "computer application designs."

Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; amathematical analysis of biological data."

45The term "biometrics" has evolved into a broad category of

technologies which provide precise confirmation of an individual's identity through the use of theindividual's own physiological and behavioral characteristics.

46A physiological characteristic is a

relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facialfeatures. A behavioral characteristic is influenced by the individual's personality and includes voice print,signature and keystroke.

47Most biometric idenfication systems use a card or personal identificatin


31/

number (PIN) for initial identification. The biometric measurement is used to verify that the individualholding 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 andturns the unique pattern therein into an individual number which is called a biocrypt. The biocrypt is storedin computer data banks

49and 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

Anothermethod is the retinal scan. Retinal scan technology employs optical technology to map the capillarypattern 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 uniquecombination of substances excreted from the skin of people.

52The latest on the list of biometric

achievements is the thermogram. Scientists have found that by taking pictures of a face using infra-redcameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and bloodvessels 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 nowscience facts. Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is anew science that uses various technologies in encoding any and all biological characteristics of anindividual 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 itscoverage. Considering the banquest of options available to the implementors of A.O. No. 308, the fearthat 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 whetherencoding of data is limited to biological information alone for identification purposes. In fact, the SolicitorGeneral claims that the adoption of the Identification Reference System will contribute to the "generationof population data for development planning."

54This is an admission that the PRN will not be used solely

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

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as the

dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime hedeals with a government agency to avail of basic services and security. His transactions with thegovernment agency will necessarily be recordedwhether it be in the computer or in the documentaryfile of the agency. The individual's file may include his transactions for loan availments, income taxreturns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The morefrequent the use of the PRN, the better the chance of building a huge formidable informatin base throughthe electronic linkage of the files.

55The data may be gathered for gainful and useful government

purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation tomisuse, 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 otherbasic personal infomation about the individual.

57Even that hospitable assumption will not save A.O. No.

308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how

these information gathered shall he handled. It does not provide who shall control and access the data,under what circumstances and for what purpose. These factors are essential to safeguard the privacy andguaranty the integrity of the information.

58Well 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, manipulatethe 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 begathered about our people will only

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