1.) [G.R. No.

 127685. July 23, 1998.]

BLAS F. OPLE,  petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE,

HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA
REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD
OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE
COMMISSION ON AUDIT,  respondents.

SYNOPSIS

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

Identification Reference System," was issued by the President on December 12, 1996.
Petitioner challenges the constitutionality of said Administrative Order on two (2)
grounds, namely: (1) it is a usurpation of the power of Congress to legislate; and (2) its
impermissibility intrudes on our citizenry's protected zone of privacy. Petitioner contends
that the Administrative Order is not a mere administrative order but a law and, hence,
beyond the power of the President to issue. He further alleges that said Administrative
Order establishes a system of identification that is all-encompassing in scope, affects the
life and liberty of every Filipino citizen and foreign resident, and more particularly,
violates their right to privacy.
In declaring the Administrative Order null and void for being unconstitutional, the
Supreme Court held that the Administrative Order involves a subject that is not
appropriate to be covered by said administrative order. An administrative order is an
ordinance issued by the President which relates to specific aspects in the administrative
operation of government. It must be in harmony with the law and should be for the sole
purpose of implementing the law and carrying out the legislative policy.
The essence of privacy is the right to be let alone. The right to privacy is recognized
and enshrined in several provisions of the Constitution. Zones of privacy are likewise
recognized and protected in our laws. Unlike the dissenters, we prescind from the
premise that the right to privacy is a fundamental right guaranteed by the Constitution,
hence, it is the burden of government to show that A. O. No. 308 is justified by some
compelling state interest and that it is narrowly drawn. What is not arguable is the
broadness, the vagueness, the overbreath of A. O. No. 308 which if implemented will put
our people's right to privacy in clear and present danger. 
CaDSHE

A. O. No. 308 falls short of assuring that personal information which will be
gathered about our people will only be processed for unequivocally specified purposes.
Even while we strike down A. O. No. 308, we spell out that the Court is not  per se against
the use of computers to accumulate, store, process, retrieve and transmit data to
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improve our bureaucracy. Given the record-keeping power of the computer, only the
indifferent will fail to perceive the danger that A. O. No. 308 gives the government the
power to compile a devastating dossier against unsuspecting citizens.

SYLLABUS

1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; LEGISLATIVE POWER; CONSTRUED.

— Legislative power  is "the authority, under the Constitution, to make laws, and to alter
and repeal them." The Constitution, as the will of the people in their original, sovereign
and unlimited capacity, has vested this power in the Congress of the Philippines. The
grant of legislative power to Congress is broad, general and comprehensive. The
legislative body possesses plenary power for all purposes of civil government. Any
power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by
the Constitution, either expressly or impliedly, legislative power embraces all subject and
extends to matters of general concern or common interest.
2. ID.; EXECUTIVE DEPARTMENT; EXECUTIVE POWER IS VESTED IN THE PRESIDENT.
— While Congress is vested with the power to enact laws, the President executes the laws.
The executive power is vested in the President. It is generally defined as the power to
enforce and administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance. As head of the Executive Department, the
President is the Chief Executive. He represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of this department. He has
control over the executive department, bureaus and offices. This means that he has the
authority to assume directly the functions of the executive department, bureau and
office, or interfere with the discretion of its officials. Corollary to the power of control, the
President also has the duty of supervising the enforcement of laws for the maintenance
of general peace and public order. Thus, he is granted administrative power over bureaus
and offices under his control to enable him to discharge his duties
effectively. Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. It enables the President to fix
a uniform standard of administrative efficiency and check the official conduct of his agents.
To this end, he can issue administrative orders, rules and regulations.
3. ID.; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM (A. O. No.
308); DOES NOT IMPLEMENT THE LEGISLATIVE POLICY OF THE ADMINISTRATIVE CODE OF
1987; REASONS THEREFOR. — Prescinding from these precepts, we hold that A.O. No.
308 involves a subject that is not appropriate to be covered by an administrative order.
An administrative order is an ordinance issued by the President which relates to specific

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aspects in the administrative operation of government. It must be in harmony with the law
and should be for the sole purpose of implementing the law and carrying out the legislative
policy. We reject the argument that  A.O. No. 308  implements the legislative policy of
the  Administrative Code of 1987. The Code is a general law and "incorporates in a unified
document the major structural, functional and procedural principles of governance" and
"embodies changes in administrative structures and procedures designed to serve the
people." The Code is divided into seven (7) Books: Book I deals with Sovereignty and
General Administration, Book II with the Distribution of Powers of the three branches of
Government, Book III on the Office of the President, Book IV on the Executive Branch,
Book V on the Constitutional Commissions, Book VI on National Government Budgeting,
and Book VII on Administrative Procedure. These Books contain provisions on the
organization, powers and general administration of the executive, legislative and judicial
branches of government, the organization and administration of departments, bureaus
and offices under the executive branch, the organization and functions of the
Constitutional Commissions and other constitutional bodies, the rules on the national
government budget, as well as guidelines for the exercise by administrative agencies of
quasi-legislative and quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization, personnel and recruitment,
supervision and discipline, and the effects of the functions performed by administrative
officials on private individuals or parties outside government. It cannot be simplistically
argued that A.O. No. 308 merely implements the Administrative Code of 1987. It
establishes for the first time a National Computerized Identification Reference System.
Such a System requires a delicate adjustment of various contending state policies — the
primacy of national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states
that the A.O. No. 308 involves the all important freedom of thought. As said
administrative order redefines the parameters of some basic rights of our citizenry vis-a-
vis the State as well as the line that separates the administrative power of the President
to make rules and the legislative power of Congress, it ought to be evident that it deals
with a subject that should be covered by law.
4. ID.; ID.; CANNOT PASS CONSTITUTIONAL MUSTER AS AN ADMINISTRATIVE
LEGISLATION BECAUSE FACIALLY IT VIOLATES THE RIGHT TO PRIVACY. — Assuming,
arguendo, that  A.O. No. 308  need not be the subject of a law, still it cannot pass constitutional
muster as an administrative legislation because facially it violates the right to privacy. The
essence of privacy is the "right to be let alone.
5. ID.; ID.; ID.; REASON THEREFOR. — The potential for misuse of the data to be
gathered under  A.O. No. 308  cannot be underplayed as the dissenters do. Pursuant to said
administrative order, an individual must present his PRN everytime he deals with a
government agency to avail of basic services and security. His transactions with the
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government agency will necessarily be recorded — whether it be in the computer or in
the documentary file of the agency. The individual's file may include his transactions for
loan availments, income tax returns, statement of assets and liabilities, reimbursements
for medication, hospitalization, etc. The more frequent the use of the PRN, the better the
chance of building a huge and formidable information base through the electronic linkage of
the files. The data may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a covert invitation to
misuse, a temptation that may be too great for some of our authorities to resist. We can even
grant, arguendo, that the computer data file will be limited to the name, address and
other basic personal information about the individual. Even that hospitable assumption
will not save. A.O. No. 308 from constitutional infirmity  for again said order does not tell us
in clear and categorical terms how these information gathered shall be handled. It does not
provide who shall control and access the data, under what circumstances and for what
purpose. These factors are essential to safeguard the privacy and guaranty the integrity
of the information. Well to note, the computer linkage gives other government agencies
access to the information. Yet, there are no controls to guard against leakage of information.
When the access code of the control programs of the particular computer system is
broken, an intruder, without fear of sanction or penalty, can make use of the data for
whatever purpose, or worse, manipulate the data stored within the system. It is plain and
we hold that A.O. No. 308 falls short of assuring that personal information which will be
gathered about our people will only be processed for unequivocally specified purposes.
The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the
individual's liberty of abode and travel by enabling authorities to track down his
movement; it may also enable unscrupulous persons to access confidential information
and circumvent the right against self-incrimination; it may pave the way for "fishing
expeditions" by government authorities and evade the right against unreasonable
searches and seizures. The possibilities of abuse and misuse of the PRN, biometrics and
computer technology are accentuated when we consider that the individual lacks control over
what can be read or placed on his ID, much less verify the correctness of the data encoded.
They threaten the very abuses that the Bill of Rights seeks to prevent. 
cSTHaE

6. ID.; ID.; ID.; THE USE OF BIOMETRICS AND COMPUTER TECHNOLOGY DOES NOT
ASSURE THE INDIVIDUAL OF A REASONABLE EXPECTATION OF PRIVACY. — We reject the
argument of the Solicitor General that an individual has a reasonable expectation of
privacy with regard to the National ID and the use of biometrics technology as it stands
on quicksand. The reasonableness of a person's expectation of privacy depends on a
two-part test: (1) whether by his conduct, the individual has exhibited an expectation of
privacy; and (2) whether this expectation is one that society recognizes an reasonable.
The factual circumstances of the case determines the reasonableness of the expectation.
However, other factors, such as customs, physical surroundings and practices of a
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particular activity, may serve to create or diminish this expectation. The use of biometrics
and computer technology in A.O. No. 308 does not assure the individual of a reasonable
expectation of privacy. As technology advances, the level of reasonably expected privacy
decreases. The measure of protection granted by the reasonable expectation diminishes
as relevant technology becomes more widely accepted. The security of the computer
data file depends not only on the physical inaccessibility of the file but also on the
advances in hardware and software computer technology. A.O. No. 308 is so widely
drawn that a minimum standard for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its provisions.
ROMERO, J., separate opinion:
POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM,
VIOLATES A PERSON'S RIGHT TO PRIVACY. — Whether viewed as a personal or a property
right, if found its way in Philippine Constitutions and statutes; this, in spite of the fact that
Philippine culture can hardly be said to provide a fertile field for the burgeoning of said
right. In fact, our lexicographers have yet to coin a word for it in the Filipino language.
Customs and practices, being what they have always been, Filipinos think it perfectly
natural and in good taste to inquire into each other's intimate affairs. One has only to sit
through a televised talk show to be convinced that what passes for wholesome
entertainment is actually an invasion into one's private life, leaving the interviewee
embarrassed and outrage by turns. With the overarching influence of common law and
the recent advent of the Information Age with its high-tech devices, the right to privacy
has expanded to embrace its public law aspect. The Bill of Rights of our evolving
Charters, a direct transplant form that of the United States, contains in essence facets of
the right to privacy which constitutes limitations on the far-reaching powers government.
So terrifying are the possibilities of a law such as Administrative Order No. 308 in making
inroads into the private lives of the citizens, a virtual Big Brother looking over our
shoulders, that it must without delay, be "slain upon sight" before our society turns
totalitarian with each of us, a mindless robot.
VITUG, J., separate opinion:
POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM,
AN UNDUE AND IMPERMISSIBLE EXERCISE OF LEGISLATIVE POWER BY THE EXECUTIVE.
— Administrative Order No. 308 appears to be so extensively drawn that could, indeed,
allow unbridled options to become available to its implementors beyond the reasonable
comfort of the citizens and of residents alike. Prescinding from the foregoing and most
importantly to this instance, the subject covered by the questioned administrative order
can have far-reaching consequences that can tell on all individuals, their liberty and
privacy, that, to my mind, should make it indispensable and appropriate to have the
matter specifically addressed by the Congress of the Philippines, the policy-making body
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of our government, to which the task should initially belong and to which the authority to
formulate and promulgate that policy is constitutionally lodged. Wherefore, I vote for the
nullification of Administrative Order No. 308 for being an undue and impermissible
exercise of legislative power by the Executive.
PANGANIBAN, J., separate opinion:
POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM
(AO 308), SUBJECT MATTER THEREOF IS BEYOND THE POWERS OF THE PRESIDENT TO
REGULATE WITHOUT A LEGISLATIVE ENACTMENT. — I concur only in the result and only
on the ground that an executive issuance is not legally sufficient to establish an all —
encompassing computerized system of identification in the country. The subject matter
contained in AO 308 is beyond the powers of the President to regulate without a
legislative enactment.
KAPUNAN, J., dissenting opinion:
1. POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM; PURPOSE. — The National Computerized Identification Reference System, to
which the NSO, GSIS and SSS are linked as lead members of the IACC is intended to
establish uniform standards for ID cards issued by key government agencies (like the
SSS) for the "efficient identification of persons." Under the new system, only on retaliate
and tamper-proof I.D. need be presented by the cardholder instead of several
identification papers such as passports and driver's license, to able to transact with
government agencies. The improved ID can be used to facilitate public transactions such
as: 1. Payment of SSS and GSIS benefits 2. Applications for driver's license, BIR TIN,
passport, marriage license, death certificate, NBI and police clearance and business
permits. 3. Availment of Medicare services in hospitals 4. Availment of welfare services 5.
Application for work/ employment 6. Pre-requisite for voter's ID. The card may also be
used for private transactions such as: 1. Opening of bank accounts 2. Encashment of
checks 3. Applications for loans, credit cards, water, power, telephones, pagers, etc. 4.
Purchase of stocks 5. Application for work/employment 6. Insurance claims 7. Receipt of
payments, checks, letters, valuables, etc. The new identification system would
tremendously improve and uplift public service in our country to the benefit of Filipino
citizens and resident aliens. It would promote, facilitate and speed up legitimate
transactions with government offices as well as with private and business entities.
Experience tells us of the constant delays and inconveniences the public has to suffer in
availing of basic public services and social security benefits because of inefficient and not
too reliable means of identification of the beneficiaries.
2. ID.; ID.; SALIENT FEATURES. — Thus, in the "Primer on the Social Security Card
and Administrative Order No. 308" issued by the SSS, a lead agency in the

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implementation of the said order, the following salient features are mentioned: 1. A.O.
308 merely establishes the standards for I.D. cards issued by key government agencies
such as SSS and GSIS. 2. It does not establish a national I.D. system; neither does it
require a national I.D. card for every person. 3. The use of the I.D. is voluntary. 4. The I.D.
is not required for delivery of any government service. Everyone has the right to basic
government services as long as he is qualified under existing laws. 5. The I.D. cannot and
will not in any way be used to prevent one to travel. 6. There will be no discrimination.
Non-holders of the improved I.D. are still entitled to the same services but will be
subjected to the usual rigid identification and verification beforehand.
3. ID.; ID.; EXERCISE OF PRESIDENT'S QUASI-LEGISLATIVE POWER VESTED TO HIM
UNDER ADMINISTRATIVE CODE OF 1987. — The Administrative Code of 1987 has
unequivocally vested the President with quasi-legislative powers in the form of executive
orders, administrative orders, proclamations, memorandum orders and circulars and
general or special orders. An administrative order, like the one under which the new
identification system is embodied, has its peculiar meaning under the 1987
Administrative Code. The National Computerized Identification Reference system was
established pursuant to the aforequoted provision precisely because its principal
purpose, as expressly stated in the order, is to provide the people with "the facility to
conveniently transact business" with the various government agencies providing basic
services. Being the "administrative head," it is unquestionably the responsibility of the
President to find ways and means to improve the government bureaucracy, and make it
more professional, efficient and reliable, specially those government agencies and
instrumentalities which provide basic services and which the citizenry constantly transact
with, like the Government Service Insurance System (GSIS), Social Security System (SSS)
and National Statistic Office (NSO). The National computerized ID system is one such
advancement. To emphasize, the new identification reference system is created to
streamline the bureaucracy, cut the red tape and ultimately achieve administrative
efficiency. The project, therefore, relates to, is an appropriate subject and falls squarely
within the ambit of the Chief Executive's administrative power under which, in order to
successfully carry out his administrative duties, he has been granted by law quasi-
legislative powers, quoted above. A.O. No. 308 was promulgated by the President
pursuant to the quasi-legislative powers expressly granted to him by law and in
accordance with his duty as administrative head. Hence, the contention that the
President usurped the legislative prerogatives of Congress has no firm basis.
4. ID.; ID.; PREMATURE FOR JUDICIAL INQUIRY. — Having resolved that the
President has the authority and prerogative to issue A.O. No. 308, I submit that it is
premature for the Court to determine the constitutionality or unconstitutionality of the
National Computerized Identification Reference System. Basic in constitutional law is the
rule that before the court assumes jurisdiction over and decide constitutional issues, the
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following requisites must first be satisfied: 1) there must be an actual case or controversy
involving a conflict of rights susceptible of judicial determination; 2) the constitutional
question must be raised by a proper party; 3) the constitutional question must be raised
at the earliest opportunity; and 4) the resolution of the constitutional question must be
necessary to the resolution of the case. In this case, it is evident that the first element is
missing. Judicial intervention calls for an actual case or controversy which is defined as
"an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory." Justice Isagani A. Cruz further expounds that "(a) justifiable
controversy is thus distinguished from a difference or dispute of a hypothetical or
abstract character or from one that is academic or moot. The controversy must be
definite and concrete, touching the legal relations of parties having adverse legal
interests. It must be a real and substantial controversy admitting of special relief through
a decree that is conclusive in character, as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts. . . ." A.O. No. 308 does not create any
concrete or substantial controversy. It provides the general framework of the National
Computerized Identification Reference System and lays down the basic standards
(efficiency, convenience and prevention of fraudulent transactions) for its creation. But
as manifestly indicated in the subject order, it is the Inter-Agency Coordinating
Committee (IACC) which is tasked to research, study and formulate the guidelines and
parameters for the use of Biometrics Technology and in computer application designs
that will define and give substance to the new system. This petition is, thus, premature
considering that the IACC is still in the process of doing the leg work and has yet to codify
and formalize the details of the new system.
5. ID.; ID.; DOES NOT VIOLATE THE CONSTITUTIONAL RIGHT TO PRIVACY. — There
is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the
Biometrics Technology. Consequently, the choice of the particular form and extent of
Biometrics Technology that may pose danger to the right of privacy will be adopted. The
standards set in A.O. No. 308 for the adoption of the new system are clear-cut and
unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need
to provide citizens and foreign residents with the facility to conveniently transact business
with basic service  and social security  providers and other government instrumentalities;
the computerized system is intended to properly  and efficiently  identify persons
seeking basic services or social security and reduce, if not totally eradicate fraudulent
transactions and misrepresentation; the national identification reference system is
established among the key basic services and social security providers; and finally, the
IACC Secretariat shall coordinate with different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology. Consequently, the choice of
the particular form and extent of Biometrics Technology that will be applied and the
parameters for its use (as will be defined in the guidelines) will necessarily and logically
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be guided, limited and circumscribed by the afore-stated standards. The fear entertained
by the majority on the potential dangers of this new technology is thus securedly allayed
by the specific limitations set by the above-mentioned standards. More than this, the
right to privacy is well-ensconced in and directly protected by various provisions of the
Bill of Rights, the Civil Code, the Revised Penal Code, and certain special laws, all so
painstakingly and resourcefully catalogued in the majority opinion. Many of these laws
provide penalties for their violation in the form of imprisonment, fines, or damages.
These laws will serve as powerful deterrents not only in the establishment of any
administrative rule that will violate the constitutionally protected right to privacy, but also
to would-be transgressors of such right.
6. ID.; ID.; DOES NOT REQUIRE THE TRANSFER OF APPROPRIATION BUT A POOLING
OF FUNDS AND RESOURCES BY THE VARIOUS GOVERNMENT AGENCIES INVOLVED IN THE
PROJECT. — On the issue of funding, the majority submits that Section 6 of A.O. No. 308,
which allows the government agencies included in the new system to obtain funding
from their respective budgets, is unconstitutional for being an illegal transfer of
appropriations. It is not so. The budget for the national identification system cannot be
deemed a transfer of funds since the same is composed of and will be implemented by
the member government agencies. Moreover, these agencies particularly the GSIS and
SSS have been issuing some form of identification or membership card. The improved ID
cards that will be issued under this new system would just take place of the old
identification cards and budget-wise, the funds that were being used to manufactured
the old ID cards, which are usually accounted for under the "Supplies and Materials" item
of the Government Accounting and Auditing Manual, could now be utilized to fund the
new cards. Hence, what is envisioned is not a transfer of appropriations but a pooling of
funds and resources by the various government agencies involved in the project.
MENDOZA, J., dissenting opinion:
1. POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM (A. O. NO. 308); BASED ON DATA WHICH THE GOVERNMENT AGENCIES
INVOLVED HAVE ALREADY BEEN REQUIRING INDIVIDUALS MAKING USE OF THEIR
SERVICES TO GIVE. — J. Mendoza does not see how from the bare provisions of the
Order, the full text of which is set forth in the majority opinion, petitioner and the
majority can conclude that the Identification Reference System establishes such
comprehensive personal information dossiers that can destroy individual privacy. So far
as the Order provides, all that is contemplated is an identification system based on data
which the government agencies involved have already been requiring individuals making
use of their services to give.
2. ID.; ID.; SIMPLY ORGANIZES SERVICE AGENCIES OF THE GOVERNMENT TO
FACILITATE THE IDENTIFICATION OF PERSONS SEEKING BASIC SERVICES AND SOCIAL
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SECURITY. — More specifically, the question is whether the establishment of the
Identification Reference System will not result in the compilation of massive dossiers on
individuals which, beyond their use for identification, can become instruments of
thought control. So far, the text of A.O. No. 308 affords no basis for believing that the
data gathered can be used for such sinister purpose. As already stated, nothing that is
not already being required by the concerned agencies of those making use of their
services is required by the Order in question. The Order simply organizes service
agencies of the government into a System for the purpose of facilitating the identification
of persons seeking basic services and social security. Thus, the whereas clauses of A.O.
No. 308 state: . . . . . . . . . The application of biometric technology and the standardization
of computer designs can provide service agencies with precise identification of
individuals, but what is wrong with that?
3. ID.; ID.; NO MORE THAN A DIRECTIVE TO GOVERNMENT AGENCIES WHICH THE
PRESIDENT HAS ISSUED IN HIS CAPACITY AS ADMINISTRATIVE HEAD. — A.O. No. 308 is no
more than a directive to government agencies which the President of the Philippines has
issued in his capacity as administrative head. It is not a statute. It confers no right; it
imposes no duty; it affords no protection; it creates no office. It is, as its name indicates,
a mere administrative order, the precise nature of which is given in the following excerpt
from the decision in the early case of Olsen & Co. v. Herstein: [It] is nothing more or less
than a command from a superior to an inferior. It creates no relation except between the
official who issues it and the official who receives it. Such orders, whether executive or
departmental, have for their object simply the efficient and economical administration of
the affairs of the department to which or in which they are issued in accordance with the
law governing the subject-matter. They are administrative in their nature and do not pass
beyond the limits of the department to which they are directed or in which they are
published, and, therefore, create no rights in third persons. They are based on, and are the
product of, a relationship in which power is their source and obedience their
object. Disobedience to or deviation from such an order can be punished only by the
power which issued it; and, if that power fails to administer the corrective, then the
disobedience goes unpunished. In that relationship no third person or official may
intervene,. not even the courts. Such orders may be very temporary, they being subject to
instant revocation or modification by the power which published them. Their very nature,
as determined by the relationship which produced them, demonstrates clearly, the
impossibility of any other person enforcing them except the one who created them. An
attempt on the part of the courts to enforce such orders would result not only in
confusion but, substantially, in departmental anarchy also.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO PRIVACY; DOES NOT BAR ALL
INCURSIONS INTO INDIVIDUAL PRIVACY. — Indeed, the majority concedes that "the right
of privacy does not bar all incursions into individual privacy. . . [only that such] incursions
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into the right must be accompanied by proper safeguards and well-defined standards to
prevent unconstitutional invasions." In the case of the Identification Reference System,
the purpose is to facilitate the transaction of business with service agencies of the
government and to prevent fraud and misrepresentation. The personal identification of
an individual can facilitate his treatment in any government hospital in case of
emergency. On the other hand, the delivery of material assistance, such as free
medicines, can be protected from fraud or misrepresentation as the absence of a data
base makes it possible for unscrupulous individuals to obtain assistance from more than
one government agency.  caIDSH

DECISION

PUNO,  J  :p

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to
prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis
considered as "the most comprehensive of rights and the right most valued by civilized
men.'' 1 Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two
important constitutional grounds, viz: one, it is a usurpation of the power of Congress to
legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy.
We grant the petition for the rights sought to be vindicated by the petitioner need
stronger barriers against further erosion.  cdphil

A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and
reads as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents
with the facility to conveniently transact business with basic service and social
security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and
efficiently identify persons seeking basic services on social security and reduce, if
not totally eradicate, fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic
services and social security providing agencies and other government
instrumentalities is required to achieve such a system;

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 NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:
SEC. 1. Establishment of a National Computerized Identification Reference
System. — A decentralized Identification Reference System among the key basic
services and social security providers is hereby established.
SEC. 2. Inter-Agency Coordinating Committee. — An Inter-Agency
Coordinating Committee (IACC) to draw-up the implementing guidelines and
oversee the implementation of the System is hereby created, chaired by the
Executive Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
SEC. 3. Secretariat. — The National Computer Center (NCC) is hereby
designated as secretariat to the IACC and as such shall provide administrative and
technical support to the IACC.
SEC. 4. Linkage Among Agencies. — The Population Reference Number (PRN)
generated by the NSO shall serve as the common reference number to establish a
linkage among concerned agencies. The IACC Secretariat shall coordinate with the
different Social Security and Services Agencies to establish the standards in the
use of Biometrics Technology and in computer application designs of their
respective systems.
SEC. 5. Conduct of Information Dissemination Campaign. — The Office of the
Press Secretary, in coordination with the National Statistics Office, the GSIS and
SSS as lead agencies and other concerned agencies shall undertake a massive tri-
media information dissemination campaign to educate and raise public
awareness on the importance and use of the PRN and the Social Security
Identification Reference.
SEC. 6. Funding. — The funds necessary for the implementation of the
system shall be sourced from the respective budgets of the concerned agencies.

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 SEC. 7. Submission of Regular Reports. — The NSO, GSIS and SSS shall submit
regular reports to the Office of the President, through the IACC, on the status of
implementation of this undertaking.
SEC. 8. Effectivity. — This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our
Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January

22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition
against respondents, then Executive Secretary Ruben Torres and the heads of the
government agencies, who as members of the Inter-Agency Coordinating Committee, are
charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a
temporary restraining order enjoining its implementation.
Petitioner contends:
"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO.
308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE
CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF
THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION." 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT
A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE
LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF
THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. 3

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 We now resolve.

As is usual in constitutional litigation, respondents raise the threshold issues

relating to the standing to sue of the petitioner and the justiciability of the case at bar.
More specifically, respondents aver that petitioner has no legal interest to uphold and
that the implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of the
requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a
usurpation of legislative power. 4 As taxpayer and member of the Government Service
Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of
public funds and the misuse of GSIS funds to implement A.O. No. 308. 5
The ripeness for adjudication of the petition at bar is not affected by the fact that
the implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople
assails A.O. No. 308 as invalid  per se and as infirmed on its face. His action is not
premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover,
the respondents themselves have started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997, respondent Social Security System
(SSS) caused the publication of a notice to bid for the manufacture of the National
Identification (ID) card. 6 Respondent Executive Secretary Torres has publicly announced
that representatives from the GSIS and the SSS have completed the guidelines for the
national identification system. 7 All signals from the respondents show their unswerving
will to implement A.O. No. 308 and we need not wait for the formality of the rules to pass
judgment on its constitutionality. In this light, the dissenters insistence that we tighten
the rule on standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.

II

We now come to the core issues.  Petitioner claims that A.O.  No.  308 is not a mere
administrative order but a law and hence, beyond the power of the President to issue . He
alleges that A.O. No. 308 establishes a system of identification that is all-encompassing in
scope, affects the life and liberty of every Filipino citizen and foreign resident, and more
particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking
domain of Congress is understandable. The blurring of the demarcation line between the
power of the Legislature to make laws and the power of the Executive to execute laws
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will disturb their delicate balance of power and cannot be allowed. Hence, the exercise
by one branch of government of power belonging to another will be given a stricter
scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative
power is "the authority, under the Constitution, to make laws, and to alter and repeal
them." 8 The Constitution, as the will of the people in their original, sovereign and
unlimited capacity, has vested this power in the Congress of the Philippines. 9 The grant
of legislative power to Congress is broad, general and comprehensive. 10 The legislative
body possesses plenary power for all purposes of civil government. 11 Any power,
deemed to be legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. 12 In fine, except as limited by
the Constitution, either expressly or impliedly, legislative power embraces all subjects
and extends to matters of general concern or common interest. 13
While Congress is vested with the power to enact laws, the President executes the
laws. 14 The executive power is vested in the President. 15 It is generally defined as the
power to enforce and administer the laws. 16 It is the power of carrying the laws into
practical operation and enforcing their due observance. 17
As head of the Executive Department, the President is the Chief Executive. He
represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his department. 18 He has control over the executive
department, bureaus and offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and office, or interfere with
the discretion of its officials. 19 Corollary to the power of control, the President also has
the duty of supervising the enforcement of laws for the maintenance of general peace
and public order. Thus, he is granted administrative power over bureaus and offices
under his control to enable him to discharge his duties effectively. 20
Administrative power is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. 21 It enables the President to fix a
uniform standard of administrative efficiency and check the official conduct of his
agents. 22 To this end, he can issue administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O.  No.  308 involves a subject that is
not appropriate to be covered by an administrative order. An administrative order is:
"Sec. 3. Administrative Orders. — Acts of the President which relate to
particular aspects of governmental operation in pursuance of his duties as
administrative head shall be promulgated in administrative orders." 23

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 An administrative order is an ordinance issued by the President which relates to
specific aspects in the administrative operation of government. It must be in harmony
with the law and should be for the sole purpose of implementing the law and carrying out
the legislative policy. 24 We reject the argument that A.O.  No.  308 implements the
legislative policy of the  Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and procedural
principles of governance" 25 and "embodies changes in administrative structures and
procedures designed to serve the people." 26 The Code is divided into seven (7) Books:
Book I deals with Sovereignty and General Administration, Book II with the
Distribution of Powers of the three branches of Government, Book III on the Office of
the President, Book IV on the Executive Branch, Book V on the Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain provisions on the organization,
powers and general administration of the executive, legislative and judicial branches
of government, the organization and administration of departments, bureaus and
offices under the executive branch, the organization and functions of the
Constitutional Commissions and other constitutional bodies, the rules on the national
government budget, as well as guidelines for the exercise by administrative agencies
of quasi-legislative and quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization, personnel and recruitment,
supervision and discipline, and the effects of the functions performed by
administrative officials on private individuals or parties outside government. 27

It cannot be simplistically argued that A.O. No. 308 merely implements

the Administrative Code of 1987. It establishes for the first time a National Computerized
Identification Reference System. Such a System requires a delicate adjustment of various
contending state policies — the primacy of national security, the extent of privacy
interest against dossier-gathering by government, the choice of policies, etc. Indeed, the
dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important
freedom of thought. As said administrative order redefines the parameters of some
basic rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power of
Congress, it ought to be evident that it deals with a subject that should be covered by
law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because
it confers no right, imposes no duty, affords no protection, and creates no office.
Under A.O. No. 308, a citizen cannot transact business with government agencies
delivering basic services to the people without the contemplated identification card. No
citizen will refuse to get this identification card for no one can avoid dealing with

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government. It is thus clear as daylight that without the ID, a citizen will have difficulty
exercising his rights and enjoying his privileges. Given this reality, the contention
that A.O. No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of Congress to
make laws. This is contrary to the established approach defining the traditional limits of
administrative legislation. As well stated by Fisher: ". . . Many regulations however, bear
directly on the public.  It is here that administrative legislation must be restricted in its scope
and application.  Regulations are not supposed to be a substitute for the general policy-
making that Congress enacts in the form of a public law.  Although administrative regulations
are entitled to respect, the authority to prescribe rules and regulations is not an independent
source of power to make laws." 28

III

Assuming, arguendo, that  A.O. No. 308 need not be the subject of a law, still it cannot
pass constitutional muster as an administrative legislation because facially it violates the
right to privacy. The essence of privacy is the "right to be let alone." 29 In the 1965
case of Griswold v. Connecticut, 30 the United States Supreme Court gave more substance
to the right of privacy when it ruled that the right has a constitutional foundation. It held
that there is a right of privacy which can be found within the penumbras of the First,
Third, Fourth, Fifth and Ninth Amendments, 31 viz:
"Specific guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and substance . . .
Various guarantees create zones of privacy. The right of association contained in
the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers 'in any house' in
time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the 'right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen
to create a zone of privacy which government may not force him to surrender to
his detriment. The Ninth Amendment provides: 'The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.'"

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

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

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 "xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included the idea
that governmental powers stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic distinctions between absolute and
limited government. Ultimate and pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of
this private sector — protection, in other words, of the dignity and integrity of the
individual — has become increasingly important as modern society has
developed. All the forces of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy and facilitate intrusion
into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society.'"

Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our  Constitution. 33 It is expressly
recognized in Section 3(1) of the Bill of Rights:

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

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

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

"Sec. 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the
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 witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
xxx xxx xxx.
Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil

Code provides that "[e]very person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons" and punishes as actionable torts
several acts by a person of meddling and prying into the privacy of another. 35 It also
holds a public officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person, 36 and recognizes the privacy of
letters and other private communications. 37 The Revised Penal Code makes a crime the
violation of secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40 Invasion of privacy is an offense in special laws like the Anti-
Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the Intellectual Property
Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of
certain information. 44
Unlike the dissenters, we prescind from the premise that the right to privacy is a
fundamental right guaranteed by the  Constitution, hence, it is the burden of government to
show that A.O.  No.  308 is justified by some compelling state interest and that it is narrowly
drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provide our
citizens and foreigners with the facility to conveniently transact business with basic
service and social security providers and other government instrumentalities and (2) the
need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations
by persons seeking basic services. It is debatable whether these interests are compelling
enough to warrant the issuance of A.O. No. 308. But what is not arguable is the
broadness, the vagueness, the overbreadth of A.O.  No.  308 which if implemented will
put our people's right to privacy in clear and present danger.
The heart of A.O.  No.  308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a linkage among
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concerned agencies" through the use of "Biometrics Technology" and "computer
application designs."
Biometry or biometrics is "the science of the application of statistical methods to
biological facts; a mathematical analysis of biological data." 45 The term "biometrics" has
now evolved into a broad category of technologies which provide precise confirmation of an
individual's identity through the use of the individual's own physiological and behavioral
characteristics. 46 A physiological characteristic is a relatively stable physical characteristic
such as a fingerprint, retinal scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's personality and includes voice print,
signature and keystroke. 47 Most biometric identification systems use a card or personal
identification number (PIN) for initial identification. The biometric measurement is used
to verify that the individual holding the card or entering the PIN is the legitimate owner
of the card or PIN. 48
A most common form of biological encoding is  finger-scanning where technology
scans a fingertip and turns the unique pattern therein into an individual number which is
called a biocrypt. The biocrypt is stored in computer data banks 49 and becomes a means
of identifying an individual using a service. This technology requires one's fingertip to be
scanned every time service or access is provided. 50 Another method is the retinal scan.
Retinal scan technology employs optical technology to map the capillary pattern of the
retina of the eye. This technology produces a unique print similar to a finger
print. 51 Another biometric method is known as the "artificial nose." This device chemically
analyzes the unique combination of substances excreted from the skin of people. 52 The
latest on the list of biometric achievements is the thermogram. Scientists have found that
by taking pictures of a face using infrared cameras, a unique heat distribution pattern is
seen. The different densities of bone, skin, fat and blood vessels all contribute to the
individual's personal "heat signature." 53
In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited to the use of
fingerprint to identify an individual. It is a new science that uses various technologies in
encoding any and all biological characteristics of an individual for identification. It is
noteworthy that A.O.  No.  308 does not state what specific biological characteristics and
what particular biometrics technology shall be used to identify people who will seek its
coverage.  Considering the banquet of options available to the implementors of
A.O.  No.  308, the fear that it threatens the right to privacy of our people is not
groundless.
A.O.  No.  308 should also raise our antennas for a further look will show that it does not
state whether encoding of data is limited to biological information alone for identification
purposes. In fact, the Solicitor General claims that the adoption of the Identification
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Reference System will contribute to the "generation of population data for development
planning." 54 This is an admission that the PRN will not be used solely for identification
but for the generation of other data with remote relation to the avowed purposes of A.O.
No. 308. Clearly, the indefiniteness of A.O.  No.  308 can give the government the roving
authority to store and retrieve information for a purpose other than the identification of the
individual through his PRN  .
The potential for misuse of the data to be gathered under A.O.  No.  308 cannot be
underplayed as the dissenters do. Pursuant to said administrative order, an individual
must present his PRN everytime he deals with a government agency to avail of basic
services and security. His transactions with the government agency will necessarily be
recorded — whether it be in the computer or in the documentary file of the agency. The
individual's file may include his transactions for loan availments, income tax returns,
statement of assets and liabilities, reimbursements for medication, hospitalization,
etc. The more frequent the use of the PRN, the better the chance of building a huge and
formidable information base through the electronic linkage of the files. 55 The data may be
gathered for gainful and useful government purposes;  but the existence of this vast
reservoir of personal information constitutes a covert invitation to misuse, a temptation
that may be too great for some of our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited to the
name, address and other basic personal information about the individual. 57 Even that
hospitable assumption will not save A.O. No. 308 from constitutional infirmity  for again
said order does not tell us in clear and categorical terms how these information gathered
shall be handled.  It does not provide who shall control and access the data, under what
circumstances and for what purpose. These factors are essential to safeguard the privacy
and guaranty the integrity of the information. 58 Well to note, the computer linkage gives
other government agencies access to the information. Yet, there are no controls to guard
against leakage of information. When the access code of the control programs of the
particular computer system is broken, an intruder, without fear of sanction or penalty,
can make use of the data for whatever purpose, or worse, manipulate the data stored
within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed
for unequivocally specified purposes. 60 The lack of proper safeguards in this regard
of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling
authorities to track down his movement; it may also enable unscrupulous persons to
access confidential information and circumvent the right against self-incrimination; it
may pave the way for "fishing expeditions" by government authorities and evade the
right against unreasonable searches and seizures. 61 The possibilities of abuse and

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misuse of the PRN, biometrics and computer technology are accentuated when we
consider that the individual lacks control over what can be read or placed on his ID,
much less verify the correctness of the data encoded. 62 They threaten the very abuses
that the Bill of Rights seeks to prevent. 63
The ability of a sophisticated data center to generate a comprehensive cradle-to-
grave dossier on an individual and transmit it over a national network is one of the most
graphic threats of the computer revolution. 64 The computer is capable of producing a
comprehensive dossier on individuals out of information given at different times and for
varied purposes. 65 It can continue adding to the stored data and keeping the
information up to date. Retrieval of stored data is simple. When information of a
privileged character finds its way into the computer, it can be extracted together with
other data on the subject. 66 Once extracted, the information is putty in the hands of any
person. The end of privacy begins.  cdphil

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions
would dismiss its danger to the right to privacy as speculative and hypothetical. Again, we
cannot countenance such a laidback posture. The Court will not be true to its role as the
ultimate guardian of the people's liberty if it would not immediately smother the sparks
that endanger their rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a reasonable
expectation of privacy with regard to the National ID and the use of biometrics technology as
it stands on quicksand. The reasonableness of a person's expectation of privacy depends
on a two-part test: (1) whether by his conduct, the individual has exhibited an
expectation of privacy; and (2) whether this expectation is one that society recognizes as
reasonable. 67 The factual circumstances of the case determines the reasonableness of
the expectation. 68 However, other factors, such as customs, physical surroundings and
practices of a particular activity, may serve to create or diminish this expectation. 69 The
use of biometrics and computer technology in A.O. No. 308 does not assure the
individual of a reasonable expectation of privacy. 70 As technology advances, the level of
reasonably expected privacy decreases. 71 The measure of protection granted by the
reasonable expectation diminishes as relevant technology becomes more widely
accepted. 72 The security of the computer data file depends not only on the physical
inaccessibility of the file but also on the advances in hardware and software computer
technology. A.O.  No.  308 is so widely drawn that a minimum standard for a reasonable
expectation of privacy, regardless of technology used, cannot be inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy this fatal defect.
Rules and regulations merely implement the policy of the law or order. On its face, A.O.
No. 308 gives the IACC virtually unfettered discretion to determine the metes and
bounds of the ID System.
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 Nor do our present laws provide adequate safeguards for a reasonable expectation of
privacy. Commonwealth Act No. 591 penalizes the disclosure by any person of data
furnished by the individual to the NSO with imprisonment and fine. 73 Republic Act No.
1161 prohibits public disclosure of SSS employment records and reports. 74 These laws,
however, apply to records and data with the NSO and the SSS. It is not clear whether they
may be applied to data with the other government agencies forming part of the National
ID System. The need to clarify the penal aspect of A.O. No. 308 is another reason why its
enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the
right of privacy by using the rational relationship test. 75 He stressed that the purposes
of A.O. No. 308 are: (1) to streamline and speed up the implementation of basic
government services, (2) eradicate fraud by avoiding duplication of services, and (3)
generate population data for development planning. He concludes that these purposes
justify the incursions into the right to privacy for the means are rationally related to the
end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act , as a valid police
power measure. We declared that the law, in compelling a public officer to make an
annual report disclosing his assets and liabilities, his sources of income and expenses,
did not infringe on the individual's right to privacy. The law was enacted to promote
morality in public administration by curtailing and minimizing the opportunities for
official corruption and maintaining a standard of honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a
statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The
law is clear on what practices were prohibited and penalized, and it was narrowly drawn
to avoid abuses. In the case at bar, A.O. No. 308 may have been impelled by a worthy
purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we
now hold that when the integrity of a fundamental right is at stake, this court will give the
challenged law, administrative order, rule or regulation a stricter scrutiny.  It will not do for the
authorities to invoke the presumption of regularity in the performance of official duties.  Nor is
it enough for the authorities to prove that their act is not irrational for a basic right can be
diminished, if not defeated, even when the government does not act irrationally.  They must
satisfactorily show the presence of compelling state interests and that the law, rule, or
regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights and to prevent
authoritarianism. In case of doubt, the least we can do is to lean towards the stance that
will not put in danger the rights protected by the Constitution.

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 The case of Whalen v. Roe  79 cited by the Solicitor General is also off-line. In Whalen,
the United States Supreme Court was presented with the question of whether the State
of New York could keep a centralized computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a doctor's prescription. The New York
State Controlled Substances Act of 1972 required physicians to identify patients
obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized
medical use but with a potential for abuse, so that the names and addresses of the
patients can be recorded in a centralized computer file of the State Department of
Health. The plaintiffs, who were patients and doctors, claimed that some people might
decline necessary medication because of their fear that the computerized data may be
readily available and open to public disclosure; and that once disclosed, it may stigmatize
them as drug addicts. 80 The plaintiffs alleged that the statute invaded a constitutionally
protected zone of privacy, i.e, the individual interest in avoiding disclosure of personal
matters, and the interest in independence in making certain kinds of important
decisions. The U.S. Supreme Court held that while an individual's interest in avoiding
disclosure of personal matters is an aspect of the right to privacy, the statute did not
pose a grievous threat to establish a constitutional violation. The Court found that the
statute was necessary to aid in the enforcement of laws designed to minimize the misuse
of dangerous drugs. The patient-identification requirement was a product of an orderly and
rational legislative decision made upon recommendation by a specially appointed
commission which held extensive hearings on the matter.  Moreover, the statute was narrowly
drawn and contained numerous safeguards against indiscriminate disclosure. The statute
laid down the procedure and requirements for the gathering, storage and retrieval of the
information. It enumerated who were authorized to access the data. It also prohibited
public disclosure of the data by imposing penalties for its violation. In view of these
safeguards, the infringement of the patients' right to privacy was justified by a valid
exercise of police power. As we discussed above, A.O. No. 308 lacks these vital
safeguards.
Even while we strike down  A.O. No. 308, we spell out in neon that the Court is not per se
against the use of computers to accumulate, store, process, retrieve and transmit data to
improve our bureaucracy. Computers work wonders to achieve the efficiency which both
government and private industry seek. Many information systems in different countries
make use of the computer to facilitate important social objectives, such as better law
enforcement, faster delivery of public services, more efficient management of credit and
insurance programs, improvement of telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the computer could help good administration by
making accurate and comprehensive information for those who have to frame policy and
make key decisions. 82 The benefits of the computer has revolutionized information
technology. It developed the internet, 83 introduced the concept of cyberspace 84 and the
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information superhighway where the individual, armed only with his personal computer,
may surf and search all kinds and classes of information from libraries and databases
connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar all
incursions into individual privacy.  The right is not intended to stifle scientific and technological
advancements that enhance public service and the common good. It merely requires that
the law be narrowly focused 85 and a compelling interest justify such
intrusions. 86 Intrusions into the right must be accompanied by proper safeguards and
well-defined standards to prevent unconstitutional invasions. We reiterate that any law
or order that invades individual privacy will be subjected by this Court to strict scrutiny.
The reason for this stance was laid down in Morfe v. Mutuc, to wit:
"The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the
citizen. This is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of
this private sector — protection, in other words, of the dignity and integrity of the
individual — has become increasingly important as modern society has
developed. All the forces of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy and facilitate intrusion
into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian
society." 87

IV

The right to privacy is one of the most threatened rights of man living in a mass society.
The threats emanate from various sources — governments, journalists, employers, social
scientists, etc. 88 In the case at bar, the threat comes from the executive branch of
government which by issuing A.O. No. 308 pressures the people to surrender their
privacy by giving information about themselves on the pretext that it will facilitate
delivery of basic services. Given the record-keeping power of the computer, only the
indifferent will fail to perceive the danger that  A.O. No. 308  gives the government the power to
compile a devastating dossier against unsuspecting citizens. It is timely to take note of the
well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone will live
burdened by an unerasable record of his past and his limitations. In a way, the threat is
that because of its record-keeping, the society will have lost its benign capacity to
forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in
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labelling the right to privacy as a fundamental right. We close with the statement that the
right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No.
308 entitled "Adoption of a National Computerized Identification Reference System"
declared null and void for being unconstitutional.
  (Ople v. Torres, G.R. No. 127685, [July 23, 1998], 354 PHIL 948-1015)
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 2.) [G.R. No. 107383. February 20, 1996.]

CECILIA ZULUETA,  petitioner, vs. COURT OF APPEALS and ALFREDO

MARTIN,  respondents.

Leonides S. Respicio & Associates Law Office  for petitioner.

Galileo P. Brion  for private respondent.

SYLLABUS

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO PRIVACY OF COMMUNICATION

AND CORRESPONDENCE; A PERSON BY CONTRACTING MARRIAGE, DOES NOT SHED
HIS/HER INTEGRITY OR HIS RIGHT TO PRIVACY AS AN INDIVIDUAL AND THE
CONSTITUTIONAL PROTECTION IS EVER AVAILABLE TO HIM OR TO HER. — Indeed the
documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be]
inviolable" is no less applicable simply because it is the wife (who thinks herself aggrieved
by her husband's infidelity) who is the party against whom the constitutional provision is
to be enforced. The only exception to the prohibition in the Constitution is if there is a
"lawful order [from a] court or when public safety or order requires otherwise, as
prescribed by law." Any violation of this provision renders the evidence obtained
inadmissible "for any purpose in any proceeding." The intimacies between husband and
wife do not justify any one of them in breaking the drawers and cabinets of the other and
in ransacking them for any telltale evidence of marital infidelity. A person, by contracting
marriage, does not shed his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.

DECISION

MENDOZA,  J  : p

This is a petition to review the decision of the Court of Appeals, affirming the
decision of the Regional Trial Court of Manila (Branch X) which ordered petitioner to
return documents and papers taken by her from private respondent's clinic without the
latter's knowledge and consent.
The facts are as follows:

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 Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On
March 26, 1982, petitioner entered the clinic of her husband, a doctor of medicine, and in
the presence of her mother, a driver and private respondent's secretary, forcibly opened
the drawers and cabinet in her husband's clinic and took 157 documents consisting of
private correspondence between Dr. Martin and his alleged paramours, greeting cards,
cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and
papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her
husband.
Dr. Martin brought this action below for recovery of the documents and papers
and for damages against petitioner. The case was filed with the Regional Trial Court of
Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr.
Alfredo Martin, declaring him "the capital/exclusive owner of the properties described in
paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return
and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to
immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal
damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the
suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal,
the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this
petition.
There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein
petitioner, without his knowledge and consent. For that reason, the trial court declared
the documents and papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the trial court's decision,
petitioner's only ground is that in  Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled that
the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in
that case) were admissible in evidence and, therefore, their use by petitioner's attorney,
Alfonso Felix, Jr., did not constitute malpractice or gross misconduct. For this reason it is
contended that the Court of Appeals erred in affirming the decision of the trial court
instead of dismissing private respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for
disbarment. Among other things, private respondent, Dr. Alfredo Martin, as complainant
in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed
malpractice or gross misconduct because of the injunctive order of the trial court. In

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dismissing the complaint against Atty. Felix, Jr., this Court took note of the following
defense of Atty. Felix, Jr. which it found to be "impressed with merit:" 2
On the alleged malpractice or gross misconduct of respondent [Alfonso
Felix, Jr.], he maintains that:
xxx xxx xxx
4. When respondent refiled Cecilia's case for legal separation before the
Pasig Regional Trial Court, there was admittedly an order of the Manila Regional
Trial Court prohibiting Cecilia from using the documents Annex "A-1 to J-7." On
September 6, 1983, however having appealed the said order to this Court on a
petition for certiorari, this Court issued a restraining order on aforesaid date
which order temporarily set aside the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's request for petitioner to admit
the genuineness and authenticity of the subject annexes cannot be looked upon
as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and
authenticity of the questioned annexes. At that point in time, would it have been
malpractice for respondent to use petitioner's admission as evidence against him
in the legal separation case pending in the Regional Trial Court of Makati?
Respondent submits it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel but by
Dr. Martin himself under oath. Such verified admission constitutes an affidavit,
and, therefore, receivable in evidence against him. Petitioner became bound by
his admission. For Cecilia to avail herself of her husband's admission and use the
same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more
than a declaration that his use of the documents and papers for the purpose of securing
Dr. Martin's admission as to their genuineness and authenticity did not constitute a
violation of the injunctive order of the trial court. By no means does the decision in that
case establish the admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of
violating the writ of preliminary injunction issued by the trial court, it was only because,
at the time he used the documents and papers, enforcement of the order of the trial
court was temporarily restrained by this Court. The TRO issued by this Court was
eventually lifted as the petition for certiorari filed by petitioner against the trial court's
order was dismissed and, therefore, the prohibition against the further use of the
documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring "the privacy of communication and
correspondence [to be] inviolable" 3 is no less applicable simply because it is the
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wife (who thinks herself aggrieved by her husband's infidelity) who is the party
against whom the constitutional provision is to be enforced. The only exception to
the prohibition in the Constitution is if there is a "lawful order [from a] court or
when public safety or order requires otherwise, as prescribed by law." 4 Any
violation of this provision renders the evidence obtained inadmissible "for any purpose
in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in
breaking the drawers and cabinets of the other and in ransacking them for any telltale
evidence of marital infidelity. A person, by contracting marriage, does not shed his/her
integrity or his right to privacy as an individual and the constitutional protection is ever
available to him or to her.
The law insures absolute freedom of communication between the spouses by
making it privileged. Neither husband nor wife may testify for or against the other
without the consent of the affected spouse while the marriage subsists. 6 Neither may be
examined without the consent of the other as to any communication received in
confidence by one from the other during the marriage, save for specified
exceptions. 7 But one thing is freedom of communication; quite another is a compulsion
for each one to share what one knows with the other. And this has nothing to do with the
duty of fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
  (Zulueta v. Court of Appeals, G.R. No. 107383, [February 20, 1996], 324 PHIL 63-69)
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 3.) [G.R. No. 247348. November 16, 2021.]

CHRISTIAN CADAJAS y CABIAS, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

J.Y. LOPEZ,  J  :
p

Before this Court is a Petition for Review on Certiorari 1 under Rule 45 of

the Revised Rules of Court assailing the Decision 2 dated September 17, 2018 and
Resolution 3 dated May 9, 2019 rendered by the Court of Appeals (CA) in CA-G.R. CR
No. 40298, which affirmed with modification the August 7, 2017 Joint Decision 4 of the
Regional Trial Court of Valenzuela City, Branch 270 (RTC) in Criminal Case Nos. 215-V-
17 and 216-V-17, finding Christian Cadajas y Cabias (petitioner) guilty of violating
Section 4 (c) (2) of Republic Act (R.A.) No. 10175, in relation to Sections 4 (a), 3 (b) and
(c) (5) of R.A. No. 9775.
The Antecedents
Petitioner, who was then 24 years old, met the victim, AAA, 5 who was only 14
years old, in the canteen where he works. Their relationship started when the younger
sibling of AAA told petitioner that AAA had a crush on him. Petitioner tried to evade
AAA, but the latter started to stalk him. Later, AAA sent petitioner a request in his
Facebook Messenger, which he accepted. The petitioner and AAA would then
exchange messages on Facebook Messenger and after some time, petitioner courted
AAA for two weeks, until they became sweethearts on April 2, 2016. 6
Sometime in June 2016, BBB, the mother of AAA, learned of their
relationship. 7 She discovered the relationship because AAA would borrow her
cellphone to access the latter's Facebook account. 8 Her mother was thus able to read
their messages whenever AAA would forget to log out her account. BBB disapproved
of their relationship because AAA was still too young. 9 However, petitioner and AAA
ignored her admonishment.
Sometime in October 2016, BBB was disheartened when she read that
petitioner was sexually luring her daughter to meet with him in a motel. She
confronted petitioner and told him to stay away because AAA was still a minor. 10
At around 5:30 in the morning of November 18, 2016, BBB was shocked when
she read the conversation between petitioner and AAA. She found that petitioner was
coaxing her daughter to send him photos of the latter's breast and vagina. AAA
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 relented and sent petitioner the photos he was asking. When AAA learned that her
mother read their conversation, she rushed to a computer shop to delete her
messages. BBB, however, was able to force her to open petitioner's Facebook
messenger account to get a copy of their conversation. 11  CAIHTE

On the part of the petitioner, he admitted sending AAA the messages "oo ready
ako sa ganyan" and "sige hubad." He, however, denied having sent AAA, photos of his
private part. On November 17, 2016, AAA asked petitioner to delete their messages
from his account. He even told her "bakit kasi hindi ka pa nagtitino, hayan tuloy nakita
ng mama mo." On the same day, petitioner broke up with AAA because her mother did
not like him. 12
Petitioner later learned from his co-workers that two (2) criminal cases were
filed against him. 13 He was charged for violation of Section 10 (a) of R.A. No. 7610 and
for child pornography as defined and penalized under Section 4 (c) (2) of R.A. No.
10175 in relation to Sections 4 (a), 3 (b) and (c) (5) of R.A. No. 9775. The two (2)
informations that were filed against petitioner on December 27, 2016, read as follows:
Criminal Case No. 215-V-17
The undersigned Associate Prosecutor Attorney II accuses CHRISTIAN
CADAJAS of "Violation of Section 10(a) of  R.A. No. 7610" committed as follows:
That on or about November 16, 2016 in Valenzuela City and within the
jurisdiction of the Honorable Court, the above-named accused, acting with lewd
design, and abuse of minority, did, then and there, willfully, unlawfully and
feloniously coerced [AAA] (DOB: February 10, 2002) (POB: Valenzuela City), 14
years old, a minor, to send pictures of her breasts and vagina through Facebook
Messenger, which circumstances debased, degraded and demeaned the
intrinsic worth and dignity of the child as a human being, thereby endangering
her youth, normal growth and development.
CONTRARY TO LAW. 14
Criminal Case No. 216-V-17
The undersigned Associate Prosecution Attorney II accuses CHRISTIAN
CADAJAS of Child Pornography under Section 4(c)(2) of R.A. No.
10175 (Cybercrime Prevention of 2012, in Relation to Sections 4(a) and 3(b)
and (c)(5) of R.A. No. 9775," committed as follows:
That on or about November 16, 2016 in Valenzuela City and within the
jurisdiction of the Honorable Court, the accused, the above-named accused,
acting with lewd design, did, then and there, willfully, unlawfully and feloniously
coerced, induced [AAA], (DOB: February 10, 2002) (POB: Valenzuela City), 14
years old, to send him pictures of her vagina and breasts, through Facebook
Messenger using a mobile phone.

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 CONTRARY TO LAW. 15
Petitioner entered a plea of not guilty to both charges during arraignment. 16
After trial, the RTC acquitted petitioner of the charge for violation of Section 10
(a) of R.A. No. 7610, but found him guilty beyond reasonable doubt for violation of
Section 4 (c) (2) of R.A. No. 10175 in relation to Sections 4 (a), 3 (b) and (c) (5) of R.A.
No. 9775. As such, petitioner was sentenced to reclusion temporal and to pay a fine of
P1,000,000.00. 17
According to the RTC, petitioner was aware that AAA was still a minor when he
obstinately prodded the latter to send him photos of her private parts. This is an
explicit sexual activity, a lascivious conduct, which the minor victim, AAA, could not
have done were it not for the persistent inducement of the petitioner. 18 Moreover,
petitioner's violation of R.A. No. 9775 is a malum prohibitum. 19 As such, his claim that
he was in a relationship with AAA finds no relevance.  DETACa

On the other hand, the RTC dismissed the charge against petitioner for violation
of Section 10 (a) of R.A. No. 7610 holding that AAA is a city lass who was no longer
innocent of the ways of the world. She herself attested that she was not affected by
what happened. As such, the RTC ruled that the protective mantle of R.A. No. 7610 is
wanting. 20 Thus, the RTC disposed the case as follows:
WHEREFORE, in the light of the foregoing, judgment is hereby rendered
as follows:
In Criminal Case No. 215-V-17, finding accused CHRISTIAN CADAJAS y
CABIAS NOT GUILTY and is hereby acquitted. The prosecution failed to prove
beyond cavil of doubt all the elements of the offense as charged.
In Criminal Case No. 216-V-17, finding accused CHRISTIAN CADAJAS y
CABIAS GUILTY of violation of Sections 4(a) and 3(b) and (c)(5) of RA 9775 and he
is hereby sentenced to suffer the penalty of reclusion temporal and to pay a FINE
of One Million Pesos.
SO ORDERED. 21
On appeal, the CA affirmed the RTC's judgment. The CA held that the minority of
AAA was both established and was even admitted by the petitioner. 22 Furthermore,
petitioner's conversation with AAA showed that he induced her to send him photos of
her private parts. 23 These facts clearly evince that petitioner committed child
pornography as defined and penalized under Section 4 (c) (2) of R.A. No. 10175, in
relation to Sections 4 (a), 3 (b) and (c) (5) of R.A. No. 9775. The CA did not give
credence to the sweetheart defense that was raised by petitioner as the violation
committed by petitioner was a malum prohibitum. 24 As regards the penalty, the CA
modified the same and sentenced petitioner to suffer the penalty of imprisonment for

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 14 years, eight months and one day, as minimum, to 18 years and three months, as
maximum. The fine imposed was retained as it was within the range prescribed by
law. 25 Thus, the CA disposed as follows:
WHEREFORE, in view of the foregoing, the appeal is
hereby DISMISSED for lack of merit. The Joint Decision dated August 7, 2017
issued by the Regional Trial Court of Valenzuela City, Branch 270 in Criminal
Case No. 216-V-17 finding Christian Cadajas y Cabias guilty beyond reasonable
doubt of violation of Sections 4(a) and 3(b) and (c)(5) of Republic Act
9775 is AFFIRMED with MODIFICATION in that appellant is sentenced to an
indeterminate penalty of 14 years, 8 months and 1 day, as minimum, to 18 years
and 3 months, as maximum.
SO ORDERED. 26
Petitioner filed a Motion for Reconsideration, which the CA denied in its
Resolution 27 dated May 9, 2019.
Undeterred, petitioner filed the instant Petition 28 before this Court.
Issues
I.
Whether the CA gravely erred in not finding that the evidence presented
by the prosecution are inadmissible for violating petitioner's right to
privacy.
II.
Whether the CA gravely erred in convicting petitioner of violation of Section 4(c)
(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No.
9775 despite the fact that the alleged act complained of does not constitute an
offense penalized under the said statute.  aDSIHc

III.
Whether the CA gravely erred in the interpretation of the unlawful and
punishable acts under Section 4(c)(2) of R.A. No. 10175 in relation to Sections
4(a), 3(b) and (c)(5) of R.A. No. 9775.
IV.
Whether the CA gravely erred in convicting petitioner of violation of Section 4(c)
(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No.
9775 despite the failure of the prosecution to prove his guilt beyond reasonable
doubt.
Our Ruling

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 Upon a careful review of the records of this case, the Court finds the petition to
be without merit.
On petitioner's right to privacy
One of the arguments raised by petitioner before this Court concerns the
admissibility of the evidence presented by the prosecution, which was taken from his
Facebook messenger account. He claims that the photos presented in evidence during
the trial of the case were taken from his Facebook messenger account. According to
him, this amounted to a violation of his right to privacy, and therefore, any evidence
obtained in violation thereof amounts to a fruit of the poisonous tree.
We disagree.
The right to privacy is defined as "the right to be free from unwarranted
exploitation of one's person or from intrusion into one's private activities in such a
way as to cause humiliation to a person's ordinary sensibilities." It is the right of an
individual "to be free from unwarranted publicity, or to live without unwarranted
interference by the public in matters in which the public is not necessarily concerned."
Simply put, the right to privacy is "the right to be let alone." 29 In his Separate
Concurring Opinion, Associate Justice Marvic Mario Victor F. Leonen expounded on
the concept of privacy, as it has developed throughout the digital age, thus:
Chief Justice Puno sparked judicial interest in the right to privacy. In his
speech that I cited in my separate opinion in Versoza v. People, 30 he discussed
the three strands of privacy in American Jurisprudence, namely, locational or
situational privacy, informational privacy, and decisional privacy.
Locational privacy, also known as situational privacy, pertains
to privacy that is felt in a physical space. It may be violated through
an act of trespass or through an unlawful search. Meanwhile,
informational privacy refers to one's right to control "the
processing — i.e., acquisition, disclosure and use — of personal
information."
Decisional privacy, regarded as the most controversial
among the three, refers to one's right "to make certain kinds of
fundamental choices with respect to their personal and
reproductive autonomy." 31
This speech has been influential in several of our jurisprudence. 32 To this
day, we are still refining our concept of privacy, particularly the right to
informational privacy. 33
As early as Morfe v. Mutuc, 34 we have recognized the increasing
importance of the protection of the right to privacy in the digital age. Such right
is of particular importance given the nature of the internet and our inescapable
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 dependence on it despite the possible disruption that it can bring. In my
separate opinion in Disini v. Secretary of Justice, 35 I explained:
The internet or cyberspace is a complex phenomenon. It has
pervasive effects and are, by now, ubiquitous in many
communities. Its possibilities for reordering human relationships
are limited only by the state of its constantly evolving technologies
and the designs of various user interfaces. The internet contains
exciting potentials as well as pernicious dangers.  ETHIDa

The essential framework for governance of the parts of

cyberspace that have reasonable connections with our territory
and our people should find definite references in our Constitution.
However, effective governance of cyberspace requires cooperation
and harmonization with other approaches in other jurisdictions.
Certainly, its scope and continuous evolution require that we
calibrate our constitutional doctrines carefully: in concrete steps
and with full and deeper understanding of incidents that involve
various parts of this phenomenon. The internet is neither just one
relationship nor is it a single technology. It is an interrelationship of
many technologies and cultures.
xxx xxx xxx
While the Internet has engendered innovation and growth, it
has also engendered new types of disruption. A noted expert
employs an "evolutionary metaphor" as he asserts:
[Generative technologies] encourage mutations,
branchings away from the status quo — some that are
curious dead ends, others that spread like wildfire. They
invite disruption — along with the good things and bad
things that can come with such disruption.
Addressing the implications of disruption, he adds:
Disruption benefits some while others lose, and the
power of the generative Internet, available to anyone with a
modicum of knowledge and a broadband connection, can be
turned to network-destroying ends . . . [T]he Internet's very
generativity — combined with that of the PCs attached —
sows the seeds lot a "digital Pearl Harbor."
The Internet is an infrastructure that allows for a "network of
networks." It is also a means for several purposes. As with all other
"means enhancing capabilities of human interaction," it can be
used to facilitate benefits as well as nefarious ends. The Internet
can be a means for criminal activity.
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 Parallel to the unprecedented escalation of the use of the
Internet and its various technologies is also an escalation in what
has been termed as cybercrimes. 36
Privacy scholars explain that the right to informational privacy, to a
certain extent, requires "limitation on inspection, observation, and knowledge
by others." 37 Thus, it has the following aspects: (1) to keep inalienable
information to themselves; (2) to prevent first disclosure; and (3) to prevent
further dissemination in case the information has already been disclosed. More
recently, the European Union has paved the way for the fourth aspect — the
right to be forgotten, or the right to prevent the storage of data.
As regards the first component of the right to informational privacy,
a person has the right not to be exposed on the internet in matters
involving one's private life, such as acts having no relation to public
interest or concern. Closely related to the first component is the right to
prevent first disclosure, allowing individuals to regulate the extent, time,
and manner of disclosure, if at all, of their information. In case the data
have been illegally disclosed, a person does not lose protection since they
have the right to prevent their further dissemination. In some cases, one
has the right to prevent the storage of their data, which gives one the right
to be forgotten. Privacy scholars describe this right as "forced omission,"
or the process of making the information difficult to find on the
internet. 38
Under the 1987 Constitution, the right to privacy is expressly recognized under
Article III, Sec. 3 thereof, which reads:
SECTION 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.  cSEDTC

While the above provision highlights the importance of the right to privacy and
its consequent effect on the rules on admissibility of evidence, one must not lose sight
of the fact that the Bill of Rights was intended to protect private individuals
against government intrusions. Hence, its provisions are not applicable between
and amongst private individuals. As explained in People v. Marti: 39
That the Bill of Rights embodied in the Constitution is not meant to be
invoked against acts of private individuals finds support in the deliberations of
the Constitutional Commission. True, the liberties guaranteed by the
fundamental law of the land must always be subject to protection. But
protection against whom? Commissioner Bernas in his sponsorship speech in
the Bill of Rights answers the query which he himself posed, as follows:
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 First, the general reflections. The protection of fundamental
liberties in the essence of constitutional democracy. Protection
against whom?  Protection against the state. The Bill of Rights governs
the relationship between the individual and the state. Its concern is not
the relation between individuals, between a private individual and
other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas, Record of the
Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis
supplied) 40
While the case of Zulueta v. Court of Appeals 41 (Zulueta) may appear to carve out
an exception to the abovementioned rule by recognizing the rule on inadmissibility of
evidence between spouses when one obtains evidence in violation of his/her spouse's
right to privacy, such a pronouncement is a mere obiter dictum that cannot be
considered as a binding precedent. This is because the petition brought to the Court
in Zulueta simply asked for the return of the documents seized by the wife and thus,
pertained to the ownership of the documents therein. Moreover, documents were
declared inadmissible because of the injunction order issued by the trial court and not
on account of Art. III, Sec. 3 of the Constitution. At any rate, violation of the right to
privacy between individuals is properly governed by the provisions of the Civil
Code, the Data Privacy Act (DPA), 42 and other pertinent laws, while its
admissibility shall be governed by the rules on relevance, materiality,
authentication of documents, and the exclusionary rules under the Rules on
Evidence.
In this case, the photographs and conversations in the Facebook
Messenger account that were obtained and used as evidence against petitioner,
which he considers as fruit of the poisonous tree, were not obtained through
the efforts of the police officers or any agent of the State. Rather, these were
obtained by a private individual. Indeed, the rule governing the admissibility of an
evidence under Article III of the Constitution must affect only those pieces of evidence
obtained by the State through its agents. It is these individuals who can flex
government muscles and use government resources for a possible abuse. However,
where private individuals are involved, for which their relationship is governed
by the New Civil Code, the admissibility of an evidence cannot be determined by
the provisions of the Bill of Rights.
Here, the pieces of evidence presented by the prosecution were properly
authenticated when AAA identified them in open court. As further pointed out by
Associate Justice Rodil V. Zalameda during the deliberations of this case,
the DPA allows the processing of data and sensitive personal information where it

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 relates to the determination of criminal liability of a data subject, 43 such as a violation
of R.A. No. 10175 in relation to R.A. No. 9775 and when necessary for the protection of
lawful rights and interests of persons in court proceedings, 44 as in this case where the
communications and photos sought to be excluded were submitted in evidence to
establish AAA's legal claims before the prosecutor's office and the courts.
Be that as it may, the act of AAA cannot be said to have violated
petitioner's right to privacy. The test in ascertaining whether there is a violation of
the right to privacy has been explained in the case of Spouses Hing v. Choachuy,
Sr. 45 as follows: SDAaTC

In ascertaining whether there is a violation of the right to privacy, courts

use the "reasonable expectation of privacy" test. This test determines whether a
person has a reasonable expectation of privacy and whether the expectation
has been violated. In Ople v. Torres, we enunciated that "the reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether, by his
conduct, the individual has exhibited an expectation of privacy; and (2) this
expectation is one that society recognizes as reasonable." Customs, community
norms, and practices may, therefore, limit or extend an individual's "reasonable
expectation of privacy." Hence, the reasonableness of a person's expectation of
privacy must be determined on a case-to-case basis since it depends on the
factual circumstances surrounding the case. 46
Here, petitioner's expectation of privacy emanates from the fact that his
Facebook Messenger account is password protected, such that no one can
access the same except himself. Petitioner never asserted that his Facebook
Messenger account was hacked or the photos were taken from his account
through unauthorized means. Rather, the photos were obtained from his
account because AAA, to whom he gave his password, had access to it.
Considering that he voluntarily gave his password to AAA, he, in effect, has
authorized AAA to access the same. He did not even take steps to exclude AAA
from gaining access to his account. Having been given authority to access his
Facebook Messenger account, petitioner's reasonable expectation of privacy, in
so far as AAA is concerned, had been limited. Thus, there is no violation of
privacy to speak of.
While the messages and photos were taken from the Facebook Messenger of
petitioner because AAA was forced by BBB to do so, such does not deviate from the
fact that petitioner allowed another person to access his account. When he gave his
Facebook Messenger password to AAA, he made its contents available to AAA, and the
latter would then have the latitude to show to other persons what she could access,
whether she be forced to do so or not. The availability of accessing these photos

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 limited the scope of his right to privacy, especially that these became essential in
pursuing AAA's claims to protect her rights.
In any case, it bears pointing out that petitioner failed to raise his objection to
the admissibility of the photos during the proceedings in the RTC. Basic is the rule that
in order to exclude evidence, the objection to admissibility of evidence must be made
at the proper time, and the grounds therefore be specified. Objection to evidence
must be made at the time it is formally offered. In case of documentary evidence,
offer is made after all the witnesses of the party making the offer have testified,
specifying the purpose for which the evidence is being offered. It is only at this time,
and not at any other, that objection to the documentary evidence may be made.
When a party failed to interpose a timely objection to evidence at the time they were
offered in evidence, such objection shall be considered as waived. This is true even if
by its nature the evidence is inadmissible and would have surely been rejected if it
had been challenged at the proper time. 47
As a complimentary principle, it is well-settled that no question will be
entertained on appeal unless it has been raised in the proceedings below. Points of
law, theories, issues and arguments not brought to the attention of the lower court,
administrative agency or quasi-judicial body, need not be considered by a reviewing
court, as they cannot be raised for the first time at that late stage. Basic
considerations of fairness and due process impel this rule. Any issue raised for the
first time on appeal is barred by estoppel. 48
By failing to timely raise his objection to the admissibility of the photos,
petitioner is deemed to have already waived the same. Thus, the photos taken from
his Facebook Messenger account are admissible in evidence.
On petitioner's liability
Petitioner was charged for violating Section 4 (c) (2) of R.A. No. 10175 49 in
relation to Sections 4 (a) and 3 (b) and (c) (5) of R.A. No. 9775, 50 which reads as
follows:
xxx xxx xxx
Section 4. Cybercrime Offenses. — The following acts constitute the offense of
cybercrime punishable under this Act: x x x
(c) Content-related Offenses: x x x
(2) Child Pornography. — The unlawful or prohibited acts
defined and punishable by Republic Act No. 9775 or the Anti-
Child Pornography Act of 2009, committed through a
computer system: Provided, That the penalty to be imposed

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 shall be (1) one degree higher than that provided for
in Republic Act No. 9775.  acEHCD

xxx xxx xxx

Section 4. Unlawful or Prohibited Acts. — It shall be unlawful for any person:
(a) To hire, employ, use, persuade, induce or coerce a child to
perform in the creation or production of any form of child
pornography
Section 3. Definition of Terms. — x x x
(b) "Child pornography" refers to any representation, whether visual,
audio, or written combination thereof, by electronic, mechanical, digital,
optical, magnetic or any other means, of child engaged or involved in real
or simulated explicit sexual activities.
(c) "Explicit Sexual Activity" includes actual or simulated — x x x
(5) lascivious exhibition of the genitals, buttocks, breasts, pubic
area and/or anus. 51
xxx xxx xxx
From the foregoing, one can be convicted for committing child pornography
upon proof of the following: (1) victim is a child; (2) victim was induced or coerced to
perform in the creation or production of any form of child pornography; and (3) child
pornography was performed through visual, audio or written combination thereof by
electronic, mechanical, digital, optical, magnetic or any other means. This Court finds
that the prosecution was able to prove these facts by proof beyond reasonable doubt.
Section 3 (a) of R.A. No. 9775 defines a child to be as follows:
(a) "Child" refers to a person below eighteen (18) years of age or over, but is
unable to fully take care of himself/herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition.
For the purpose of this Act, a child shall also refer to:
(1) a person regardless of age who is presented, depicted or
portrayed as a child as defined herein; and  EcTCAD

(2) computer-generated, digitally or manually crafted images or

graphics of a person who is represented or who is made to appear
to be a child as defined herein.
The members of the Technical Working Group for the Pre-Bicameral Conference
Committee on the Disagreeing Provisions of House Bill No. 6440 and Senate Bill No.

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 2317 (Anti-Child Pornography Act of 2009) explained the intent in defining "child" under
the statute as follows:
MS. GIRONELLA. Sir, in addition to that, I would just like to quote what
Senator Defensor-Santiago said on the floor because she fully agreed with the
expanded definition as seen in the House version, numbers (1) and (2). She said
that she fully agrees to the extended definition of the term "child" so that adult
website that display explicit images of legal-aged models in pigtails with the
balloon or lollipop while surrounded by stuff animals could be prosecuted under
the measure. While the law seeks to protect children, the extended definition
punishes the depravity of the viewer. So, what we are after here talaga is the
perpetrator. We don't care what age the child or the person is. What we're trying
to penalize, what we're trying to prohibit is the pedophile from gravitating
towards that kind of material.
Yes, Mr. Del Prado.
MR. DEL PRADO. We support that view. That's why it is specific here a
person regardless of age. It is the representation that is deemed reprehensible
and I think the public policy expression here is really to prohibit promoting the
child as a sexual object and, therefore, it covers both the adult and children
being subject of sexually explicit activity. 52
Here, it was uncontroverted that AAA was only 14 years old at the time of the
incident. This was established from the copy of her Certificate of Live Birth 53 that was
presented in evidence. Moreover, petitioner was aware of this fact. It was undisputed
that BBB confronted petitioner and told him to stay away because her daughter was
still a minor.
It is likewise clear from the records of this case that petitioner induced AAA to
send him photos of her private parts through Facebook Messenger. This is evident
from their conversation, which the CA quoted as follows:
AAA (K):
Hahaha gusto ko siya pagtripan e di mo kasi ako pinagtritripan (sic) e.
Cadajas (C):
Gsto (sic) muh (sic) pagtrepan (sic) kita ngayon
K: Oo
Ready ako sa ganyan
C: Sge (sic)  hubad
K: Nakahubad na hahaha
C: Tangalin (sic) uh (sic) panti (sic) muh (sic) haha

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 K: Baliw hubad na lahat
C: Picturan uh (sic) pasa muh (sic) xkin (sic) bi
K: Lah gagi bi wag
Ayoko
C: Uh ayaw muh (sic) pala sa mga treep (sic) KO (sic) ei (sic)
xxx xxx xxx
C: Tayo lang naman makakakita ie (sic)
K: Hahahaha baka pagkalat mo  HSAcaE

Dede lang
C: Ako din bi PSA (sic) mna (sic)
HahAt (sic) bi
K: Magpasa ka din hahaha
Lah (sic) bat lahat
xxx xxx xxx
C: Hahaha hnde (sic) aman (sic) bi
Lahat bi gusto ko
Uo nga nkKaumay (sic) bi nslibugan (sic) ako
K: Gagi ayoko nga yung pepe
xxx xxx xxx
C: Buka muh (sic) nga kunti (sic) bi kunti (sic) lang tutok muh (sic)
Hah (sic)
K: Ayoko na.
Haha Christian haha OK nay an
C: She (sic) nah (sic) gsto (sic) KO (sic) mkita (sic) bi 54
xxx xxx xxx
It is evident from the above-quoted conversation that petitioner induced AAA to
engage in the lascivious exhibition of her breasts and vagina through Facebook
Messenger. Notably, it was petitioner who was the one giving specific orders to AAA.
He even asked AAA to send to him nude photos of her and for the latter to further
spread her legs near the camera, so that petitioner can see her vagina. In her
testimony, AAA further explained that it was because of the continuous prodding of
petitioner, that forced her to send her nude photos to the latter, thus:

Practice Court
 Q: What about those pictures? Can you tell us about those pictures that you are
referring to?
A: Because he instructed me to send a picture to him of my breast and vagina, so I
send him pictures, Sir.
Q: Okay, you send pictures of your breast and you [sic] vagina. What did you use
in order to send him those pictures?
A: Cell phone, Sir.
Q: How did the accused convince you to do that?
A: He said magsend daw po ako ng picture.
Q: Was there a promise?
A: None, Sir.
Q: Just the accused merely telling you or commanding you to produce or take
pictures of your private parts?
A: Yes, Sir.
Q: Why did you allow yourself to do that?
A: Napilitan lang po akong magsend ng ganun.
xxx xxx xxx
Q: Paanong napilitan kung hindi ka pinuwersa or hindi ka tinakot? Paano mo
nasabing napilitan lang? Alam mong mali iyon at hindi naman pinapayagan
na ganun, bakit mo sinend parin kung hindi ka naman niya pinilit o tinakot?
Ano talaga ang nagtulak sayong magsend ng ganun? Ano ba ang pumasok
sa isip mo, pumasok sa katawan mo nung ginawa mo iyon? Just be candid.
A: Hindi ko po alam.
Q: Hindi mo alam kasi?
A: Naaano lang po ako sa sinabi niya, sa message po niya sakin na puro please
magsend kana sige na puro ganun po.
Q: Sa pagkukumbinsi niya? Panay ang please?
A: Hindi po niya ako tinigilan nun e.
Q: Hindi siya tumitigil?
A: Hindi po. 55 HESIcT

Further, while the conversation in the Facebook Messenger appears to show

that AAA was already undressed while she was conversing with petitioner, it should be
pointed out that they were merely exchanging messages on a mobile application. It is
probable that AAA was merely bluffing to maintain petitioner's interest. In her

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 testimony, AAA explained that she was not even serious when she sent some of her
messages, thus:
Q: In fact, there is in this statement that you even type these words kuya
nalilibugan ako hahaha is it true that? Did you type this?
A: Yes Sir, I typed that but that is not true, it is just a trip lang sa kanya.
Q: In that trip, in line with it is a four (4) smiley crying while laughing, smiley with
tears meaning you are laughing?
Court:
You are just joking ganun ba?
Witness:
Yes, your Honor. 56
Likewise, when AAA said "Nakahubad na," the same cannot be said to be
voluntary on her part as it was preceded by an order from petitioner to take her
clothes off. Thus, it was clear from the wordings of the messages that petitioner
induced AAA to send him photos of her private parts. Without petitioner's
inducement, she would not have been compelled to actually undress and send
petitioner, photos of her private parts.
Thus, contrary to petitioner's contention, his act of inducing AAA to send photos
of her breasts and vagina constitutes child pornography and explicit sexual activity
under Sections 4 (a), 3 (b) and (c) (5) of R.A. No. 9775. While there was no showing that
petitioner intended to sell AAA's photos to other people, this did not exonerate him
from liability under the said provision. During the Pre-Bicameral Conference
Committee meeting that led to the enactment of R.A. No. 9775 the members of the
Technical Working Group made a distinction between the act of merely possessing
child pornography materials from the act of making a profit out of it, to wit:
MR. DESCALLAR.
Madam Chair, I think x x x kasi doon sa House version amy (sic) distinction
between producer, distributor x x x
(MS. THELMA M. RETUBA TOOK OVER)
MR. DESCALLAR.
(Continuing) x x x distributor and user, client. So, pag ni-level natin siya on
the same level, the producer, distributor can say "I'm just a client. I just
possess with no intention to sell." So, I think, we should differentiate mere
possession and with the other x x x with the intention to distribute or
benefit, profit from pornography.
COMMITTEE SECRETARY MANALIGOD.
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 Madam Chair, may I just explain because this was a specific amendment of
Senator Santiago. In the deliberations on the floor she stated that on
Section 4(d), Senator Santiago noted that the possession of child
pornography was not qualified by the adverb "knowingly." She explained
that knowledge of child pornography does not attach to possession but
only to access. Therefore, she believed that mere possession of child
pornography is punishable and not subject to the defense that the
possessor was not aware of the materials in his or her possession.
MR. DESCALLAR.
Papaano 'yun? Saan?
MR. GIRONELLA.
Earlier Madam Chair, I think there was a proposal to include the word
"knowingly" before the word "possess." So, it would be "to knowingly
possess" or "knowingly access." Chair Madrigal supports the position of
Senator Defensor-Santiago that knowing possession of a pornographic
material cannot be made a defense by the perpetrator. So, for us, the fact
that he or she possesses a child pornography material is subject to the
penalties of this law.
And on the second point, on the point raised by Mr. Descallar, I think we
also should separate a provision from the possessor's point of view as
opposed to that producer's point of view. So, we cannot include
reproduce.  caITAC

MR. DESCALLAR.
With or without the intent to publish.
MS. GIRONELLA.
For the possessor.
MR. DESCALLAR.
Yes. Oo. Kasi in the House version, letter (f) . . .
MR. MARALIT.
Ihiwalay na lang natin.
COMMITTEE SECRETARY GUEVARRA.
Letter (f).
MR. DESCALAR.
x x x In the house version, "to knowingly possess, download, purchase, blah
blah x x x "so, it's mere possession, separate x x x distinct from producing,
distributing, selling or profiting from child pornography.

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 MS. GIRONELLA.
So, Sir, I think, what we can do . . .
MR. MARALIT.
Yeah, mere possession.
MS. GIRONELLA.
x x x it would be x x x so, let's adopt x x x the proposal is to adopt section
(d) of the Senate version with the following amendments: "To possess or
knowingly access, download, purchase x x x or purchase with reasonable
knowledge, any form of child pornography with or without the intent to
publish, sell, distribute and broadcast";
MR. DESCALLAR.
I think we delete "or without." So, it will be "with the intent to publish" and
you provide another provision for possession as, like for example in letter
(f) of the House version which is mere possession. Letter (d) of the house is
for possession, downloading, or distribution." So, separate x x x ano siya,
separate siya, 'yang intent to publish or to distribute.
MS. GIRONELLA.
Sir, can you please word the provision you're proposing.
COMMITTEE SECRETARY GUEVARRA.
Okay. May we recognize Atty. Del Prado first.
MR. DEL PRADO.
Na-discuss din po naming ito doon sa x x x first, we support x x x including
the word "knowingly" before "possess." Iyong discussions po ditto,
halimbawa po may nagpadala sa inyo ng e-mail with an attachment of child
pornography na kung hindi natsi-check ng e-mail, it's been there for several
months, hindi pa rin po 'yun dapat "knowing possession." So, pero kapag
binuksan mo 'yan na x x x na-access mon a, alam mo na and then you keep
it, so 'yun po 'yung sinasabi na "knowing possession."
And then doon naman po sa point of "with intent to sell, distribute," ang
concern po ng law enforcement agents you are x x x we are adding another
x x x the burden again of proving this intent kasi 'yung sinasabi nila we can
x x x some jurisdictions, some countries do provide for the x x x parang sa
drugs po iyong how many kilobytes. Pero sinasabi rin po naming, mahirap
din pong mag term kasi po pagka ano 'yung personal and ano 'yung with
intent to distribute. So, we really x x x it's either you possess and we punish
that or you distribute and we punish that. Kasi kung hindi naman natin ma-
prove 'yung kanyang distribution, then mayroon pa tayong fallback doon sa

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 possession. So, ganoon na lang x x x 'yun po ang irerekomenda natin para
hindi po additional burden 'yung to establish the intent.  ICHDca

COMMITTEE SECRETARY GUEVARRA.

I think the reason why separate the two (2) to distinguish possession with
the intent to sell and mere possession for personal use, mas grave ang
penalty, 'no. Mas mabigat ang penalty for x x x pag may intent pa to sell.
Pero kung hindi natin ma-prove 'yang intent to sell, pasok pa rin siya sa
possession.
Now, we can just x x x alisin na lang natin 'yung "personal use," no, pero we
retain the "intent to sell, 'no. Kasi if you prove "intent to sell," mas mabigat
ang penalty.
MR. MARALIT.
Tama.
COMMITTEE SECRETARY GUEVARRA.
If you fail to prove "intent to sell," mas lighter kasi hindi mo naman dini-
distribute, eh.
MR. DEL PRADO.
I agree po doon sa graduation ng penalties. Ang sinasabi lang po natin if we
include that phrase "with intent to sell" kailangan po nating i-prove 'yun.
Whereas, kung nag-sell talaga siya, it's an objective culpable act that we can
punish.
MS. GIRONELLA.
Madam Chair, point of clarification. What are we talking about? Are we
talking about section "b" of the Senate version, section (b) of the House
version, section (f) of the House version? Parang naghalu-halo na, eh, kasi
earlier we're talking about possession, 'di ba, tapos we went to production
and then distribution.
COMMITTEE SECRETARY GUEVARRA.
Oo.
MS. GIRONELLA.
So, baka better nga talaga paghiwalayin natin 'yung "act of possession"
which is punishable and then "act of production, distribution with the intent
to sell" as a separate ano rin, 'di ba?
COMMITTEE SECRETARY GUEVARRA.
But we already provide "to sell, offer, advertise" and "to produce, direct," 'di
ba? We already provide for the unlawful acts, eh. It's different, eh. You

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 produce, direct or to sell, it's different. Here, you possess, meaning, you are
not the original owner.
MS. GIRONELLA.
So, 'yung section (b) ng House version we're no longer considering it kasi I
think that's the only provision with the phrase "with the intent of selling or
distributing."
COMMITTEE SECRETARY GUEVARRA.
That's why we are saying na x x x because you do not have provision on
"knowingly possess" for personal use. Here in our version, we have. So,
diniferentiate naming 'yung "with intent to sell" and "without intent to sell."
So, 'yun siguro doon tayo nagkaiba.
In the Senate version, "possession, 'no, whatever x x x with or without
intent to publish it" magkasama na lang together. In the House version,
magkaiba because the intention is to penalize, to provide for stiffer
penalties for those who possess with the intent to distribute it as against
those who possess without intent x x x and to reproduce this but for his
personal use.
MS. GIRONELLA.
In the Senate version po kasi, Madam Chair, for clarification, we intend to
punish mere possession. So, we don't need to prove that the person who
knowingly possess pornographic material x x x a child pornographic
material. And then secondly, I think we did away with the intention to sell
because that would be a very hard fact to prove that the person had intent
to sell it, unless nagkaroon ng outright act of selling it. 
TCAScE

COMMITTEE SECRETARY GUEVARRA.

No, not really. Because if you, by circumstantial evidence, if you reproduce
so many copies and you reproduce or send or distribute to so many e-
mails, 'no, e-mail addresses, the intent is there already. It's already the act
of distributing.
MR. MARALIT.
What our colleague here is saying that in case there are many copies x x x
(MS. AGNES LUCIA V. TIBAY TOOK OVER)
MR. MARALIT (Continuing)
x x x are many copies made, then it could give rise to a presumption,
maybe a prima facie presumption that he has intent to sell, distribute. Yeah,
we will have to put the presumption there because iyon nga, iyong intent
medyo mahirap i-prove, although it could be x x x although the possession
of so many could give rise to a prima facie presumption of intent to sell. In
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 which case, if not controverted, then the intent to sell will be conclusively
presumed, parang ganoon, siguro if you were to put that there.
COMMITTEE SECRETARY GUEVARRA.
Kasi para sa akin, pagka may intent ka to distribute, to sell it, economic na
ang reason mo, tapos at the expense of other people, mas dapat mas
malaki ang penalty niya.
MR. MARALIT.
I agree.
COMMITTEE SECRETARY GUEVARRA.
Bahala na kasi, anyway naman kung hindi naman ma-prove iyong intent,
punishable pa rin, hindi ba? Punishable pa rin siya.
MR. MARALIT.
Yes, yes, mere possession. So the suggestion is siguro to differentiate the
two. I think a clear differentiation of the two as well as iyong sa access,
huwag natin isama ito, in my view, kasi mag-iiba ang x x x
COMMITTEE SECRETARY GUEVARRA.
Kasi parang unfair doon sa mere possession, wala siyang intent to sell. Kasi
unfair iyong penalty kung pareho. If we lump it together in one provision, it
will be unfair.
MR. MARALIT.
I agree.
COMMITTEE SECRETARY GUEVARRA.
Because the other one has earned a lot or tiyak na mayroon siyang network
para pagbigyan at kikita siya.
MR. MARALIT.
Yeah like Hayden Kho
MR. DESCALLAR.
I suggest that we adopt the House version na letter (d) and letter (f) with
amendments, deleting the term "for personal use" in letter (f) so parang we
distinguish distribution and with the intent to sell and for mere possession,
deleting "for personal use," so mere possession is punishable.
COMMITTEE SECRETARY GUEVARRA.
And in the case of letter (d) of the House version, knowledge of possession
is not a requirement, basta ma-prove mo iyong intent to possess,
download, with the intent. So there are two elements here — to possess or

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 download or purchase or reproduce and then with intent. Kasi pagka wala
siyang x x x so knowledge is immaterial ditto. Hindi kailangan ng knowledge
kasi kapag mapu-prove mo iyong intent. Ngayon kung hindi mo ma-prove
iyong intent, pasok naman siya sa "to knowingly possess."  cTDaEH

MR. MARALIT.
Iyong suggestion ng colleague naming is, sabi niya, no proof of intent is
necessary if we will provide here that there would rise a presumption of
intent to sell, distribute, in case there are a number of copies, puwede natin
i-craft na lang siguro maya-maya. Ngayon na, we will x x x
MR. DESCALLAR.
I move to adopt the House version, letter (d) and letter (f) with some
amendments removing or deleting the term "for personal use" in letter (f).
COMMITTEE SECRETARY GUEVARRA.
Of course, with modifications siguro.
MR. MARALIT.
 Yeah, we will craft the provisions. Can we suspend the session. 57
It can be gleaned from the lengthy discussion of the members of the Technical
Working Group that the authors of this statute intended to penalize even the mere
possession, for personal use or enjoyment, of child pornography. The law, as enacted,
considers possession with intent to sell, distribute, or publish 58 to be distinct and
separate from mere possession. 59 If proven, a stiffer penalty would be imposed on
those who were found to have intended to distribute or profit from child
pornography. Thus, the foregoing shows the intention of the legislature to include as
much violation for acts committed that would further spread the proliferation of
pornography in the country, including possession thereof. Necessarily, as those who
merely possess child pornographic materials are also punished by law, then R.A. No.
9775 could not be said to have limited its application only to those who are engaged
in the business of child pornography.
It also bears emphasis that petitioner obtained the child pornographic materials
by inducing AAA to send him photos of the latter's private parts. He did not come into
possession of these photos because it was sent by another person. Rather, he came
into possession of AAA's photos because of inducing AAA to exhibit her private parts
to him. As the inducement to send photos of AAA's private parts was committed with
the use of a mobile phone through Facebook Messenger, petitioner's act also falls
within the purview of Section 4 (c) (2) of R.A. No. 10175, which penalizes child
pornography through the use of a computer system. A mobile phone is considered as
a computer system under Section 3 (g) 60 of R.A. No. 10175.
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 On another matter, petitioner's heavy reliance on the sweetheart theory is
misplaced. Invoking this defense would depend on the circumstances of each case.
Jurisprudence explained that the said theory applies in felonies that were committed
against or without the consent of the victim. This theory operates on the premise that
the violation committed was consensual. Hence, the party invoking this theory bears
the burden of proving that said party and the victim were lovers and that the latter
consented to the commission of the act. 61
In the recent case of Bangayan v. People, 62 the sweetheart theory was given
serious consideration because the accused and the alleged victim were able to show
that the alleged rape incident that happened between them was consensual, and a
product of love. As noted by the court in that case, the accused and the alleged victim
had two children and had lived together even after the filing of the rape charges.
As compared with the instant case, there was insufficiency of evidence to prove
the application of the sweetheart theory. Lovers, when they are passionate with their
feelings, engage in physical contact, as manifestations of their love towards one
another. As they express their feelings towards one another, they express themselves
and not just lust over the photos of private parts of their partners. While there may be
instances of expressions of love in a virtual space, the same would usually be
predicated by endearing words and not just advances of lust, as in this case.
Here, AAA was led to believe that she was in a relationship with petitioner. It
was undisputed that it was AAA who relentlessly pursued the petitioner. Still, it can be
gleaned from the facts that petitioner, who must be basking in her attention, took
advantage of her innocence and vulnerability. The fact that AAA had three previous
boyfriends should not even be taken against her for it is the rule under Section 54 (a)
(1), Rule 130 of the Revised Rules of Court that "the character of the offended party
may be proved if it tends to establish in any degree the probability or improbability of
the offense charged." It has been held in rape case, that this argument may be raised
only to show that there was consent in a rape case. This does not apply when the
woman's consent is immaterial such as in statutory rape or rape with violence or
intimidation. 63 It must be added that consent would also be immaterial if the victim
was persuaded, coerced or induced to do a particular act, as in this case. In his
Separate Concurring Opinion, Justice Leonen made reference to his Dissenting
Opinion in Bangayan v. People, 64 ultimately concluding that the sweetheart defense
should not be allowed in cases involving child pornography, thus:  cSaATC

xxx xxx xxx

[S]exual intercourse is a complex act which is not only
physical or sensual. Beyond that, it comes with the complexity of
intimacy, relationship, and reproductive consequences.

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 Sexual intimacy may be primarily done for procreation or
solely for pleasure. How sexuality and intimacy is expressed, what
constitutes sex, and with whom to be intimate with is a person's
choice.
Therefore, consent to sex does not only cover the physical
act. Sex does not only involve the body, but it necessarily involves
the mind as well. It embraces the moral and psychological
dispositions of the persons engaged in the act, along with the
socio-cultural expectation and baggage that comes with the act. For
instance, there are observed differences in sexual expectations and
behaviors among different genders, and more so, among
individuals. The wide range of sexual desire and behavior are not
only shaped by biology, but by culture and prevailing norms as well.
Full and genuine consent to sex, therefore, is "preceded by a
number of conditions which must exist in order for act of consent
to be performed."
Part and parcel of a valid consent is the ability to have the
intellectual resources and capacity to make a choice that reflects
[their] judgments and values. For someone to give sexual consent,
[they] must have reached a certain level of maturity.
This observation becomes more apparent in determining the
validity of sexual consent given by adults compared to children.
Sexual consent is not a switch, but a spectrum. As a child grows
into adolescence, and later to adulthood, the measure of sexual
consent shifts from capacity to voluntariness. Under the law, sexual
consent from a child is immaterial, because [they are] deemed
incapable of giving an intelligent consent. However, this
presumption is relaxed as the child matures. In our jurisdiction, the
gradual scale begins when the child reaches the age of 12 years
old. From this age, the law may admit voluntariness on the part of
the child.
Nevertheless, voluntariness or informed sexual consent of a
child must be determined cautiously. Cases involving younger
victims must be resolved through more stringent criteria. Several
factors, such as the age of the child, [their] psychological state,
intellectual capability, relationship with the accused, their age
difference, and other signs of coercion or manipulation must be
taken into account in order to protect the child.
xxx xxx xxx
It is for the same reason that we cannot allow the sweetheart defense in
child pornography. The sweetheart defense is a common, distasteful, and much
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 abused in acts of lasciviousness and rape, aiming to establish that fact that the
sexual act was consensual. Under the pretense of a romantic relationship, it is
not unimaginable that a child will be easily induced or coerced to engage in
explicit sexual acts. Engaging in such a relationship does not remove the special
protection of a child. This is especially true in the digital age and space, where a
child's interaction with others easily evades supervision. Had AAA not been
careless in logging out from her mother's device, the latter would not have
found out about their relationship. 65
It should be pointed out that AAA was only 14 years old at the time of the
incident while petitioner was 24 years old. Such huge age disparity placed petitioner in
a stronger position over AAA, which enabled him to wield his will on the
latter. 66 Judicial notice must also be taken of the fact that minors, especially those
who are between the ages of 12 and 18 years, are curious about their sexuality. They
are that stage in their lives when they are dealing with their raging hormones.
Nonetheless, this should not be taken to mean that they are now capable of giving
rational consent to engage in any sexual activity. In a society where birth control and
sex education are taboo subjects, these sexually curious teenagers are left to their
own devices. Unfortunately, the only source of information available to them are
those from the internet or from their friends, who are also not knowledgeable on the
subject. For this reason, minors have been acknowledged to be vulnerable to the
cajolery and deception of adults, such as in this case. 67  cHDAIS

Unless and until these minors are given proper guidance and/or taught about
sex and its consequences, and until it be shown that their actions arise from their
feelings of love towards their partner, they cannot be considered to be truly capable
of giving an educated and rational consent to engage in any form of sexual activity.
Thus, to minimize the risk of harm to minors from the detrimental consequences of
their attempts at adult sexual behavior, the State, as parens patriae, is under the
obligation to intervene and protect them from sexual predators like petitioner in this
case. 68 This must be so if We are to be true to the constitutionally enshrined State
policy to promote the physical, moral, spiritual, intellectual and social well-being of the
youth. 69 This is also in harmony with the declared policy of the State in R.A. No. 9775,
which provides:
x x x The State recognizes the vital role of the youth in nation building and shall
promote and protect their physical, moral, spiritual, intellectual, emotional,
psychological and social well-being. Towards this end, the State shall:
(a) Guarantee the fundamental rights of every child from all forms
of neglect, cruelty and other conditions prejudicial to his/her
development;

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 (b) Protect every child from all forms of exploitation and abuse
including, but not limited to:
(1) the use of a child in pornographic performances and
materials; and
(2) the inducement or coercion of a child to engage or be
involved in pornography through whatever means; x x x 70
Article 3 (1) of the United Nations Convention on the Rights of a Child of which
the Philippines is a signatory is similarly emphatic that in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, it is the best interests of the child
that shall be the primary consideration.
Article 1 of Presidential Decree No. 603, otherwise known as, "The Child and
Youth Welfare Code" is likewise clear and unequivocal that every effort should be
exerted by the State to promote the welfare of children and enhance their
opportunities for a useful and happy life.
This Court, however, concurs with petitioner's argument, and as pointed out by
Associate Justice Alfredo Benjamin S. Caguioa in his Dissenting Opinion, 71 that a
violation of Section 4 (c) (2) of R.A. No. 10175, in relation to Sections 4 (a), 3 (b) and (c)
(5) of R.A. No. 9775 falls under the class of offenses known as mala in se, where
criminal intent must be proven by proof beyond reasonable doubt. The difference
between the concept of mala in se and malum prohibitum were succinctly explained as
follows:
Criminal law has long divided crimes into acts wrong in themselves called
acts mala in se; and acts which would not be wrong but for the fact that positive
law forbids them, called acts mala prohibita. This distinction is important with
reference to the intent with which a wrongful act is done. The rule on the
subject is that in acts mala in se, the intent governs; but in acts mala
prohibita, the only inquiry is, has the law been violated? When an act is
illegal, the intent of the offender is immaterial. When the doing of an act is
prohibited by law, it is considered injurious to public welfare, and the doing of
the prohibited act is the crime itself.
A common misconception is that all mala in se crimes are found in
the Revised Penal Code (RPC), while all mala prohibita crimes are provided by
special penal laws. In reality, however, there may be mala in se crimes under
special laws, such as plunder under R.A. No. 7080, as amended.
Similarly, there may be mala prohibita crimes defined in the RPC, such as
technical malversation. ISHCcT

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 The better approach to distinguish between mala in se and mala
prohibita crimes is the determination of the inherent immorality or vileness of
the penalized act. If the punishable act or omission is immoral in itself, then
it is a crime mala in se; on the contrary, if it is not immoral in itself, but
there is a statute prohibiting its commission by reasons of public policy,
then it is mala prohibita. In the final analysis, whether or not a crime involves
moral turpitude is ultimately a question of fact and frequently depends on all
the circumstances surrounding the violation of the statute. 72
In the ratification speech on Anti-Child Pornography Act of 2009, the principal
author explained the need for the promulgation of this law, to wit:
This Bill is much awaited by all the sectors involved in the protection and
promotion of the rights of children not only in the Philippines but also in the
international community, and, I believe, by the children themselves whose
voices resonate in the silence of their hearts and in the equanimity of their
spirits. Knowing how this bill could be of great consequence to the building of
their self-worth and the realization of their hope for a bright future, this
representation takes pride in sponsoring this noble piece of legislation in
support of their call to stop the menace of child pornography. Evidently, child
pornography is such a disgusting crime which operates with surprising
efficiency, swiftness and dispatch as it rides along with technologically advanced
communication highways such as the internet.
What appalls us more is the fact that such meaningless violence against
the honor and dignity of our children knows no boundaries: political or
geographical. Child pornography transcends national and international
boundaries even without actual physical movement of children from one place
of victimization to another. Verily, while it could be done in the secrecy of her
room and abode, its evil resounds in every corner of society. 73
Even during the pre-bicameral conference committee hearing, the Technical
Working Group had a lengthy discussion on the title of the statute to emphasize the
depravity of the acts being penalized, to wit:
So, let's start with the title of the bill. So, we just put in the remarks
column that the Senate version was adopted as the working draft. So, that's the
first x x x that's the first remarks, first remark. So, okay, let us go to the title of
the bill. So, which of the provision x x x which of the title would you think will
aptly or will cover, will cover the purpose, the intent of the bill? So, I suggest that
we adopt the House version because there's still no crime defining child
pornography and if we are not just prohibiting. When you say crime, it's really
punishable. Unlike when you just prohibit, a prohibition may only take x x x the
penalty may not be penalty at all but just a warning or form of fines. But when it

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 says crime, it attaches criminal liability. It attaches punishment, fines and even
other liabilities.
MS. GIRONELLA.
Conferring with Atty. Maralit, 'no, most of our special laws penalizing or
defining a crime is usually called penalizing or punishing the specific act.
You only use the term "defining" when it refers to specific rights that you're
granting an individual. For example, Presidential Decree No. 133, which is x
x x I'm sorry, Presidential Decree 704 which is a decree punishing illegal
fishing. So, that's the usual term that they used. That's why we adopted the
word "prohibiting child pornography and imposing penalties, thereof."
COMMITTEE SECRETARY GUEVARRA.
Although kasi sa legislative . . . this is a legislative enactment unlike those
mentioned by our counterpart that those provisions x x x those are
executive issuances, promulgation.
MR. MARALIT.
Yes, but we have also examples of statutes titled this way. "An Act
Prohibiting the Demand of Deposits or Advanced Payments for the
Confinement or for Treatment of Patients in Hospitals and Medical Clinics
in Certain Cases." That is BP Bilang 702 which is a statute. Usually, the word
"defining" is used in defining rights like this statute, Republic Act No. 7438,
"An Act Defining Certain Rights of Person Arrested, Detained or under
Custodial Investigation." So in our view, it's either prohibiting or punishing,
or penalizing, to make a strong message to the violators, would-be violators
of this law that Congress is serious with these violations of law. 
CAacTH

That is our positions.

COMMITTEE SECRETARY GUEVARRA.
Okay. Although we also, we already passed several legislations defining
crimes, new crimes, 'yung mga bago pa na hindi pa talaga legislated,
walang specific law na x x x (interrupted)
MR. MARALIT.
Let's just have a compromise. Why don't we say, "prohibiting and defining?"
that would be fine with us, if it's okay with you, "defining and prohibiting
and imposing penalties thereof."
COMMITTEE SECRETARY GUEVARRA.
We use imposing or prescribing? We prescribe the penalties for the crime.
MR. MARALIT.
"Prescribe." "Prescribe" is better.

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 COMMITTEE SECRETARY GUEVARRA.
So, for record purposes, the title of the reconciled bill shall be, "An Act
Defining and Prohibiting the Crime" x x x "Defining and Prohibiting Child
Pornography, Prescribing Penalties Therefor and for Other Purposes."
MR. MARALIT.
Can we make "penalizing" rather than "prohibiting"?
COMMITTEE SECRETARY GUEVARRA.
Okay, yeah. That's x x x I was about to suggest because penalizing is more
ano x x x
MR. MARALIT.
Yes, more forceful.
COMMITTEE SECRETARY GUEVARRA.
x x x more forceful than in prohibiting.
MR. MARALIT.
Yeah. Thank you
COMMITTEE SECRETARY GUEVARRA.
Okay, So, that the title of the reconciled bill shall be "An Act Defusing and
Penalizing Child Pornography x x x
MR. MARALIT. The crime, the crime.
COMMITTEE SECRETARY GUEVARRA.
x x x the Crime of Child Pornography, Prescribing Penalties Therefor and
for Other Purposes." I repeat, "An Act Defining and Penalizing the Crime of
Child Pornography, Prescribing Penalties therefor and for Other Purposes."
MR. MARALIT.
Okay. 74
From the foregoing, it is decisively clear that the crime of child pornography as
defined and penalized under R.A. No. 9775 should be classified as a crime mala in se.
As parens patriae, this act of grooming minors for sexual abuse should not be
tolerated. We should not be complicit in reinforcing this belief upon the minors that
sex with children is acceptable and thereby fuel a pedophile's fantasies prior to
committing sexual abuse, which clearly happened in the instant case. Contrary to the
appreciation of evidence of the other members of this Court, the circumstances of this
case showed the intent of petitioner to abuse AAA and engage in acts of child
pornography by inducing the latter to exhibit her private parts to him. Petitioner,
being the one with mental maturity, should have known that it was not just legally, but
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 inherently wrong for AAA, a minor, to show her private parts, particularly, through a
mobile device. If indeed, petitioner loved AAA, he should have protected her dignity,
being a minor. However, as the exchanges of petitioner and AAA would show, it was
through petitioner's prodding that led to AAA's act of exhibiting her private parts.
Thus, this Court concurs with the findings of the courts a quo that the prosecution was
able to establish beyond reasonable doubt that petitioner induced or coerced the
minor victim to perform in the creation of child pornography and that the same was
done through a computer system.  IAETDc

All told, the courts a quo did not err in finding petitioner guilty beyond
reasonable doubt for violation of Section 4 (c) (2) of R.A. No. 10175, in relation to
Sections 4 (a), 3 (b) and (c) (5) of R.A. No. 9775.
As regards the proper penalty to be imposed, Sections 4 and 8 75 of R.A. No.
10175 both explicitly provide that the proper penalty to be imposed for child
pornography committed through a computer system should be one degree higher
than that provided for in R.A. No. 9775. Under Section 15 (b) 76 of R.A. No. 9775, the
penalty to be imposed is reclusion temporal in its maximum period and a fine of not
less than P1,000,000.00 but not more than P2,000,000.00. The rationale for
this rule was succinctly explained in the case of Disini Jr. v. The Secretary of Justice, 77 to
wit:
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 2009[31] (ACPA) to cover identical activities in cyberspace. In
theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system.
Actually, ACPA's definition of child pornography already embraces the use of
"electronic, mechanical, digital, optical, magnetic or any other means." Notably,
no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime
is committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
such higher penalty. The potential for uncontrolled proliferation of a
particular piece of child pornography when uploaded in the cyberspace is
incalculable. 78
One degree higher than the penalty of reclusion temporal is the indivisible
penalty of reclusion perpetua. Accordingly, the penalty imposed by the CA should be
modified to reclusion perpetua as it is in accordance with the provisions and intent
of R.A. No. 10175.
Finally, the Court finds no compelling reason to modify the fine imposed by the
courts a quo as it is within the allowable range imposed by law.

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 WHEREFORE, the petition is DENIED. Consequently, The Decision dated
September 17, 2018 and Resolution dated May 9, 2019 both rendered by the Court of
Appeals in CA-G.R. CR No. 40298 are AFFIRMED with MODIFICATION. Petitioner
Christian Cadajas y Cabias is guilty beyond reasonable doubt of the crime of child
pornography under Section 4 (c) (2) of R.A. No. 10175, in relation to Sections 4 (a) and
3 (b) and (c) (5) of R.A. No. 9775. He is sentenced to reclusion perpetua, with all its
accessory penalties and to pay a fine in the amount of One Million Pesos
(P1,000,000.00).
  (Cadajas y Cabias v. People, G.R. No. 247348, [November 16, 2021])
|||

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 4.) [G.R. No. 179736. June 26, 2013.]

SPOUSES BILL AND VICTORIA HING,  petitioners, vs. ALEXANDER

CHOACHUY, SR. and ALLAN CHOACHUY,  respondents.

DECISION

DEL CASTILLO,  J  :
p

"The concept of liberty would be emasculated if it does not likewise compel respect
for [one's] personality as a unique individual whose claim to privacy and [non]-
interference demands respect." 1
This Petition for Review on Certiorari 2 under Rule 45 of the Rules of Court assails
the July 10, 2007 Decision 3 and the September 11, 2007 Resolution 4 of the Court of
Appeals (CA) in CA-G.R. CEB-SP No. 01473.

Factual Antecedents

On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the
Regional Trial Court (RTC) of Mandaue City a Complaint 5 for Injunction and Damages
with prayer for issuance of a Writ of Preliminary Mandatory Injunction/Temporary
Restraining Order (TRO), docketed as Civil Case MAN-5223 and raffled to Branch 28,
against respondents Alexander Choachuy, Sr. and Allan Choachuy.
Petitioners alleged that they are the registered owners of a parcel of land (Lot
1900-B) covered by Transfer Certificate of Title (TCT) No. 42817 situated in Barangay
Basak, City of Mandaue, Cebu; 6 that respondents are the owners of Aldo Development &
Resources, Inc. (Aldo) located at Lots 1901 and 1900-C, adjacent to the property of
petitioners; 7 that respondents constructed an auto-repair shop building (Aldo Goodyear
Servitec) on Lot 1900-C; that in April 2005, Aldo filed a case against petitioners for
Injunction and Damages with Writ of Preliminary Injunction/TRO, docketed as Civil Case
No. MAN-5125; 8 that in that case, Aldo claimed that petitioners were constructing a
fence without a valid permit and that the said construction would destroy the wall of its
building, which is adjacent to petitioners' property; 9 that the court, in that case, denied
Aldo's application for preliminary injunction for failure to substantiate its
allegations; 10 that, in order to get evidence to support the said case, respondents on
June 13, 2005 illegally set-up and installed on the building of Aldo Goodyear Servitec two
video surveillance cameras facing petitioners' property; 11 that respondents, through

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their employees and without the consent of petitioners, also took pictures of petitioners'
on-going construction; 12 and that the acts of respondents violate petitioners' right to
privacy. 13 Thus, petitioners prayed that respondents be ordered to remove the video
surveillance cameras and enjoined from conducting illegal surveillance. 14
In their Answer with Counterclaim, 15 respondents claimed that they did not install
the video surveillance cameras, 16 nor did they order their employees to take pictures of
petitioners' construction. 17 They also clarified that they are not the owners of Aldo but
are mere stockholders. 18

Ruling of the Regional Trial Court

On October 18, 2005, the RTC issued an Order 19 granting the application for a TRO.
The dispositive portion of the said Order reads:  EAaHTI

WHEREFORE, the application for a [T]emporary [R]estraining [O]rder or a

[W]rit of [P]reliminary [I]njunction is granted. Upon the filing and approval of a
bond by [petitioners], which the Court sets at P50,000.00, let a [W]rit of
[P]reliminary [I]njunction issue against the [respondents] Alexander Choachuy, Sr.
and Allan Choachuy. They are hereby directed to immediately remove the
revolving camera that they installed at the left side of their building overlooking
the side of [petitioners'] lot and to transfer and operate it elsewhere at the back
where [petitioners'] property can no longer be viewed within a distance of about
2-3 meters from the left corner of Aldo Servitec, facing the road.
IT IS SO ORDERED. 20

Respondents moved for a reconsideration 21 but the RTC denied the same in its
Order 22 dated February 6, 2006. 23 Thus:
WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of
merit. Issue a [W]rit of [P]reliminary [I]njunction in consonance with the Order
dated 18 October 2005.
IT IS SO ORDERED. 24

Aggrieved, respondents filed with the CA a Petition for Certiorari 25 under Rule 65 of

the Rules of Court with application for a TRO and/or Writ of Preliminary Injunction.

Ruling of the Court of Appeals

On July 10, 2007, the CA issued its Decision 26 granting the Petition

for Certiorari. The CA ruled that the Writ of Preliminary Injunction was issued with grave
abuse of discretion because petitioners failed to show a clear and unmistakable right to
an injunctive writ. 27 The CA explained that the right to privacy of residence under Article

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26 (1) of the Civil Code was not violated since the property subject of the controversy is
not used as a residence. 28 The CA also said that since respondents are not the owners of
the building, they could not have installed video surveillance cameras. 29 They are mere
stockholders of Aldo, which has a separate juridical personality. 30 Thus, they are not the
proper parties. 31 The  fallo reads:
WHEREFORE, in view of the foregoing premises, judgment is hereby
rendered by us GRANTING the petition filed in this case. The assailed orders
dated October 18, 2005 and February 6, 200[6] issued by the respondent judge
are hereby ANNULLED and SET ASIDE.
SO ORDERED. 32

Issues

Hence, this recourse by petitioners arguing that:  ECcTaH

I.
THE . . . [CA] COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND SET
ASIDE THE ORDERS OF THE [RTC] DATED 18 OCTOBER 2005 AND 6 FEBRUARY
2006 HOLDING THAT THEY WERE ISSUED WITH GRAVE ABUSE OF DISCRETION.
II.
THE . . . [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT
PETITIONER SPOUSES HING ARE NOT ENTITLED TO THE WRIT OF PRELIMINARY
INJUNCTION ON THE GROUND THAT THERE IS NO VIOLATION OF THEIR
CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY DESPITE THE FACTUAL
FINDINGS [OF] THE RTC, WHICH RESPONDENTS CHOACHUY FAILED TO REFUTE,
THAT THE ILLEGALLY INSTALLED SURVEILLANCE CAMERAS OF RESPONDENTS
CHOACH[U]Y WOULD CAPTURE THE PRIVATE ACTIVITIES OF PETITIONER
SPOUSES HING, THEIR CHILDREN AND EMPLOYEES.
III.
THE . . . [CA] COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT SINCE THE
OWNER OF THE BUILDING IS ALDO DEVELOPMENT AND RESOURCES, INC. THEN
TO SUE RESPONDENTS CHOACHUY CONSTITUTE[S] A PURPORTEDLY
UNWARRANTED PIERCING OF THE CORPORATE VEIL.
IV.
THE . . . [CA] COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE SERIOUS
FORMAL DEFICIENCIES OF BOTH THE PETITION AND THE MOTION FOR
RECONSIDERATION DATED 15 MARCH 2006 OF RESPONDENT[S] CHOACH[U]Y
AND GAVE . . . THEM DUE COURSE AND CONSIDERATION. 33

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 Essentially, the issues boil down to (1) whether there is a violation of petitioners'
right to privacy, and (2) whether respondents are the proper parties to this suit.

Petitioners' Arguments

Petitioners insist that they are entitled to the issuance of a Writ of Preliminary
Injunction because respondents' installation of a stationary camera directly facing
petitioners' property and a revolving camera covering a significant portion of the same
property constitutes a violation of petitioners' right to privacy. 34 Petitioners cite Article
26 (1) of the Civil Code, which enjoins persons from prying into the private lives of
others. 35 Although the said provision pertains to the privacy of another's residence,
petitioners opine that it includes business offices, citing Professor Arturo M.
Tolentino. 36 Thus, even assuming arguendo that petitioners' property is used for
business, it is still covered by the said provision. 37
As to whether respondents are the proper parties to implead in this case,
petitioners claim that respondents and Aldo are one and the same, and that respondents
only want to hide behind Aldo's corporate fiction. 38 They point out that if respondents
are not the real owners of the building, where the video surveillance cameras were
installed, then they had no business consenting to the ocular inspection conducted by
the court. 39

Respondents' Arguments

Respondents, on the other hand, echo the ruling of the CA that petitioners cannot
invoke their right to privacy since the property involved is not used as a
residence. 40 Respondents maintain that they had nothing to do with the installation of
the video surveillance cameras as these were installed by Aldo, the registered owner of
the building, 41 as additional security for its building. 42 Hence, they were wrongfully
impleaded in this case. 43
Our Ruling
The Petition is meritorious.  DICcTa

The right to privacy is the right to be let

alone.

The right to privacy is enshrined in our Constitution 44 and in our laws. It is defined

as "the right to be free from unwarranted exploitation of one's person or from intrusion
into one's private activities in such a way as to cause humiliation to a person's ordinary
sensibilities." 45 It is the right of an individual "to be free from unwarranted publicity, or

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to live without unwarranted interference by the public in matters in which the public is
not necessarily concerned." 46 Simply put, the right to privacy is "the right to be let
alone." 47
The Bill of Rights guarantees the people's right to privacy and protects them
against the State's abuse of power. In this regard, the State recognizes the right of the
people to be secure in their houses. No one, not even the State, except "in case of
overriding social need and then only under the stringent procedural safeguards," can
disturb them in the privacy of their homes. 48

The right to privacy under Article 26 (1)

of the Civil Code covers business offices
where the public are excluded
therefrom and only certain individuals
are allowed to enter.

Article 26 (1) of the Civil Code, on the other hand, protects an individual's right to
privacy and provides a legal remedy against abuses that may be committed against him
by other individuals. It states:
Art. 26. Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall produce a cause of action
for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
xxx xxx xxx

This provision recognizes that a man's house is his castle, where his right to privacy
cannot be denied or even restricted by others. It includes "any act of intrusion into,
peeping or peering inquisitively into the residence of another without the consent of the
latter." 49 The phrase "prying into the privacy of another's residence," however, does not
mean that only the residence is entitled to privacy. As elucidated by Civil law expert
Arturo M. Tolentino:
Our Code specifically mentions "prying into the privacy of another's
residence." This does not mean, however, that only the residence is entitled to
privacy, because the law covers also "similar acts." A business office is entitled
to the same privacy when the public is excluded therefrom and only such
individuals as are allowed to enter may come in. . . . 50 (Emphasis supplied) cASIED

Thus, an individual's right to privacy under Article 26 (1) of the Civil Code should not
be confined to his house or residence as it may extend to places where he has the

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 right to exclude the public or deny them access. The phrase "prying into the
privacy of another's residence," therefore, covers places, locations, or even situations
which an individual considers as private. And as long as his right is recognized by
society, other individuals may not infringe on his right to privacy. The CA, therefore,
erred in limiting the application of Article 26 (1) of the Civil Code only to residences.

The "reasonable expectation of

privacy" test is used to determine
whether there is a violation of the right
to privacy.

In ascertaining whether there is a violation of the right to privacy, courts use the
"reasonable expectation of privacy" test. This test determines whether a person has a
reasonable expectation of privacy and whether the expectation has been
violated. 51 In Ople v. Torres, 52 we enunciated that "the reasonableness of a person's
expectation of privacy depends on a two-part test: (1) whether, by his conduct, the
individual has exhibited an expectation of privacy; and (2) this expectation is one that
society recognizes as reasonable." Customs, community norms, and practices may,
therefore, limit or extend an individual's "reasonable expectation of privacy." 53 Hence,
the reasonableness of a person's expectation of privacy must be determined on a case-
to-case basis since it depends on the factual circumstances surrounding the case. 54
In this day and age, video surveillance cameras are installed practically everywhere
for the protection and safety of everyone. The installation of these cameras, however,
should not cover places where there is reasonable expectation of privacy, unless the
consent of the individual, whose right to privacy would be affected, was obtained. Nor
should these cameras be used to pry into the privacy of another's residence or business
office as it would be no different from eavesdropping, which is a crime under Republic
Act No. 4200 or the Anti-Wiretapping Law.
In this case, the RTC, in granting the application for Preliminary Injunction, ruled
that:
After careful consideration, there is basis to grant the application for a
temporary restraining order. The operation by [respondents] of a revolving
camera, even if it were mounted on their building, violated the right of privacy of
[petitioners], who are the owners of the adjacent lot. The camera does not only
focus on [respondents'] property or the roof of the factory at the back (Aldo
Development and Resources, Inc.) but it actually spans through a good portion of
[the] land of [petitioners].
Based on the ocular inspection, the Court understands why [petitioner]
Hing was so unyielding in asserting that the revolving camera was set up
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 deliberately to monitor the on[-]going construction in his property. The monitor
showed only a portion of the roof of the factory of [Aldo]. If the purpose of
[respondents] in setting up a camera at the back is to secure the building and
factory premises, then the camera should revolve only towards their properties at
the back. [Respondents'] camera cannot be made to extend the view to
[petitioners'] lot. To allow the [respondents] to do that over the objection of the
[petitioners] would violate the right of [petitioners] as property owners. "The
owner of a thing cannot make use thereof in such a manner as to injure the rights
of a third person." 55

The RTC, thus, considered that petitioners have a "reasonable expectation of

privacy" in their property, whether they use it as a business office or as a residence and
that the installation of video surveillance cameras directly facing petitioners' property or
covering a significant portion thereof, without their consent, is a clear violation of their
right to privacy. As we see then, the issuance of a preliminary injunction was justified. We
need not belabor that the issuance of a preliminary injunction is discretionary on the
part of the court taking cognizance of the case and should not be interfered with, unless
there is grave abuse of discretion committed by the court. 56 Here, there is no indication
of any grave abuse of discretion. Hence, the CA erred in finding that petitioners are not
entitled to an injunctive writ.  DaAETS

This brings us to the next question: whether respondents are the proper parties to
this suit.

A real party defendant is one who has a

correlative legal obligation to redress a
wrong done to the plaintiff by reason of
the defendant's act or omission which
had violated the legal right of the
former.

Section 2, Rule 3 of the Rules of Court provides:

SEC. 2. Parties-in-interest. — A real party-in-interest is the party who stands
to be benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit. Unless otherwise authorized by law or these Rules, every action
must be prosecuted or defended in the name of the real party-in-interest.

A real party defendant is "one who has a correlative legal obligation to redress a
wrong done to the plaintiff by reason of the defendant's act or omission which had
violated the legal right of the former." 57
In ruling that respondents are not the proper parties, the CA reasoned that since
they do not own the building, they could not have installed the video surveillance
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cameras. 58 Such reasoning, however, is erroneous. The fact that respondents are not the
registered owners of the building does not automatically mean that they did not cause
the installation of the video surveillance cameras.
In their Complaint, petitioners claimed that respondents installed the video
surveillance cameras in order to fish for evidence, which could be used against
petitioners in another case. 59 During the hearing of the application for Preliminary
Injunction, petitioner Bill testified that when respondents installed the video surveillance
cameras, he immediately broached his concerns but they did not seem to care, 60 and
thus, he reported the matter to the barangay  for mediation, and eventually, filed a
Complaint against respondents before the RTC. 61 He also admitted that as early as 1998
there has already been a dispute between his family and the Choachuy family concerning
the boundaries of their respective properties. 62 With these factual circumstances in
mind, we believe that respondents are the proper parties to be impleaded.
Moreover, although Aldo has a juridical personality separate and distinct from its
stockholders, records show that it is a family-owned corporation managed by the
Choachuy family. 63
Also quite telling is the fact that respondents, notwithstanding their claim that they
are not owners of the building, allowed the court to enter the compound of Aldo and
conduct an ocular inspection. The counsel for respondents even toured Judge Marilyn
Lagura-Yap inside the building and answered all her questions regarding the set-up and
installation of the video surveillance cameras. 64 And when respondents moved for
reconsideration of the Order dated October 18, 2005 of the RTC, one of the arguments
they raised is that Aldo would suffer damages if the video surveillance cameras are
removed and transferred. 65 Noticeably, in these instances, the personalities of
respondents and Aldo seem to merge.  acAESC

All these taken together lead us to the inevitable conclusion that respondents are
merely using the corporate fiction of Aldo as a shield to protect themselves from this
suit. In view of the foregoing, we find that respondents are the proper parties to this suit.
WHEREFORE, the Petition is hereby GRANTED. The Decision dated July 10, 2007
and the Resolution dated September 11, 2007 of the Court of Appeals in CA-G.R. CEB-SP
No. 01473 are hereby REVERSED and SET ASIDE. The Orders dated October 18, 2005 and
February 6, 200[6] of Branch 28 of the Regional Trial Court of Mandaue City in Civil Case
No. MAN-5223 are hereby REINSTATED and AFFIRMED.
  (Spouses Hing v. Choachuy, Sr., G.R. No. 179736, [June 26, 2013], 712 PHIL 337-354)
|||

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5.) Carpenter v U.S. See PDF

Facts of the case

In April 2011, police arrested four men in connection with a series of armed robberies. One of the men
confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The
FBI used this information to apply for three orders from magistrate judges to obtain "transactional records" for
each of the phone numbers, which the judges granted under the Stored Communications Act, 18 U.S.C.
2703(d). That Act provides that the government may require the disclosure of certain telecommunications
records when "specific and articulable facts show[] that there are reasonable grounds to believe that the contents
of a wire or electronic communication, or the records or other information sought, are relevant and material to
an ongoing criminal investigation." The transactional records obtained by the government include the date and
time of calls, and the approximate location where calls began and ended based on their connections to cell
towers—"cell site" location information (CSLI).

Based on the cell-site evidence, the government charged Timothy Carpenter with, among other offenses, aiding
and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, 18 U.S.C. 1951.
Carpenter moved to suppress the government's cell-site evidence on Fourth Amendment grounds, arguing that
the FBI needed a warrant based on probable cause to obtain the records. The district court denied the motion to
suppress, and the Sixth Circuit affirmed.

Question
Does the warrantless search and seizure of cell phone records, which include the location and movements of cell
phone users, violate the Fourth Amendment?

Conclusion
The government's warrantless acquisition of Carpenter's cell-site records violated his Fourth Amendment right
against unreasonable searches and seizures. Chief Justice John Roberts authored the opinion for the 5-4
majority. The majority first acknowledged that the Fourth Amendment protects not only property interests, but
also reasonable expectations of privacy. Expectations of privacy in this age of digital data do not fit neatly into
existing precedents, but tracking person's movements and location through extensive cell-site records is far
more intrusive than the precedents might have anticipated. The Court declined to extend the "third-party
doctrine"—a doctrine where information disclosed to a third party carries no reasonable expectation of privacy
—to cell-site location information, which implicates even greater privacy concerns than GPS tracking does. One
consideration in the development of the third-party doctrine was the "nature of the particular documents
sought," and the level of intrusiveness of extensive cell-site data weighs against application of the doctrine to
this type of information. Additionally, the third-party doctrine applies to voluntary exposure, and while a user
might be abstractly aware that his cell phone provider keeps logs, it happens without any affirmative act on the
user's part. Thus, the Court held narrowly that the government generally will need a warrant to access cell-site
location information.

Justice Anthony Kennedy filed a dissenting opinion, in which Justices Clarence Thomas and Samuel Alito
joined. Justice Kennedy would find that cell-site records are no different from the many other kinds of business
records the government has a lawful right to obtain by compulsory process. Justice Kennedy would continue to
limit the Fourth Amendment to its property-based origins.
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Justice Thomas filed a dissenting opinion, emphasizing the property-based approach to Fourth Amendment
questions. In Justice Thomas's view, the case should not turn on whether a search occurred, but whose property
was searched. By focusing on this latter question, Justice Thomas reasoned, the only logical conclusion would
be that the information did not belong to Carpenter.

Justice Alito filed a dissenting opinion, in which Justice Thomas joined. Justice Alito distinguishes between an
actual search and an order "merely requiring a party to look through its own records and produce specified
documents"—with the former being far more intrusive than the latter. Justice Alito criticizes the majority for
what he characterizes as "allow[ing] a defendant to object to the search of a third party's property," a departure
from long-standing Fourth Amendment doctrine.

Justice Gorsuch filed a dissenting opinion in which he emphasizes the "original understanding" of the Fourth
Amendment and laments the Court's departure from it.

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6.) R. v. Marakah (See PDF)

Facts
The appellant, Marakah sent text messages to his accomplice, Winchester, regarding
illegal transactions in firearms. The police obtained a search warrant to search the homes
of the appellant and his accomplice. During the course of the search, they seized the
phone devices of the appellant and his accomplice without a warrant. The police found
incriminating text messages between them and sought to use it as evidence against the
appellant during the trial. 
The use of this evidence was challenged by the appellant at the pre-trial stage. The pre-
trial application judge held that the warrant to search the appellant’s residence was invalid
and the text messages recovered from the appellant’s device could not be used as
evidence. However, he ruled that the appellant had no standing to argue on the
admissibility of the messages recovered from the device of his accomplice under section
8 of the Charter. Subsequently, the trial judge convicted him for various firearms offences
using that evidence. On appeal, the Court of Appeal for Ontario upheld the application
judge’s decision on the applicants standing under section 8. The appellant then
approached the Supreme Court of Canada. 
 
Issues
A. Whether the appellant had a reasonable expectation of privacy in the messages
recovered from a device which did not belong to him and claim protection under
Section 8 of the Charter.
B. Whether such evidence would be admissible under Section 24(2) (on the exclusion
of evidence) of the Charter.
 
Decision
The Court provided three opinions, one majority opinion, one concurring opinion, and a
dissent. The majority opinion held that the appellant had a reasonable expectation of
privacy in the text messages sent by him, even if they were accessed from the device of
another person. The messages were protected against unreasonable search or seizure
under section 8 of the Charter and thus, inadmissible.
The Court assessed the totality of circumstances in which the reasonable expectation of
privacy was being claimed under section 8. Relying on R vs. Cole (2012 SCC 53), the Court
analysed the subject matter of the search, and the nature of interest the claimant had in
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the subject matter. Further, it questioned whether he had a subjective expectation of
privacy, and if so, whether the expectation was objectively reasonable.
The Court referred to R vs. Spencer (2014 SCC 43) and R vs. TELUS Communications Co.
(2013 SCC 16), to take a broad and functional approach to determine the subject matter of
the search. It held that the subject matter was the electronic conversation between the
appellant (sender) and his accomplice (recipient). The search was for the electronic
conversation as a whole and not the copy of the text messages stored in the sender’s or
recipient’s devices or the server of the service provider. The Court held that the appellant,
as a participant in the conversation, had a direct interest in the subject matter and he
subjectively expected the same to remain private. 
In determining whether the subjective expectation of privacy was reasonable, the Court
considered the following factors: the place of the search, the private nature of the subject
matter and the extent of control possessed by the person. 
The majority recognized that electronic conversations did not occupy a particular physical
place. However, text messaging between two individuals was equivalent to a private “chat
room”, similar to conversations in closed physical spaces. The Court also noted that the
medium of text messaging was a discrete form of communication which encompassed a
zone of privacy beyond one’s mobile device. It held that the focus was on the potential for
electronic conversations to reveal a great deal of personal and biographical information,
instead of the actual content of the conversations.
On the question of control, the Court rejected the argument of the Crown that the sender
lost all control over the conversation once the message reached the recipient. Despite the
risk that recipients could disclose text messages, the sender’s control was only lessened
but not completely lost. In digital communications, an individual did not exercise exclusive
control over their personal information, but only shared or constructive control. Therefore,
the Court adopted the view taken in R vs. Tessling (2004 SCC 67) holding that a reasonable
expectation of privacy could exist on a spectrum or in a “hierarchy” of places. 
The Court concluded that the appellant had a reasonable expectation of privacy and
standing to claim protection under section 8 of the Charter. Consequently, the Court held
that the text messages were obtained by an unreasonable search and would be excluded
as evidence under Section 24(2) of the Charter. Hence, it allowed the appeal and set aside
the convictions.
In contrast to the majority opinion, the dissent held that in order to have the standing to
bring a challenge under section 8 of the Charter, the appellant would have to show a
personal connection to the subject matter. Only once this was proven would the claim of a
reasonable expectation of personal privacy. The dissent noted that since the appellant did
not control over the device of his accomplice, the “crucial contextual factor” for
establishing the personal connection was missing, hence lacked standing.

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Practice Court
 7.) [G.R. No. 181881. October 18, 2011.]

BRICCIO "Ricky" A. POLLO,  petitioner,vs. CHAIRPERSON KARINA

CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN
BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT
ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION,  respondents.

DECISION

VILLARAMA, JR.,  J  :p

This case involves a search of office computer assigned to a government

employee who was charged administratively and eventually dismissed from the
service. The employee's personal files stored in the computer were used by the
government employer as evidence of misconduct.
Before us is a petition for review on  certiorari  under Rule 45 which seeks to
reverse and set aside the Decision 1 dated October 11, 2007 and Resolution 2 dated
February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition
for  certiorari  (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify
the proceedings conducted by the Civil Service Commission (CSC) which found him
guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the
service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional
Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison
Division (PALD) under the  "Mamamayan Muna Hindi Mamaya Na"  program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed
to respondent CSC Chairperson Karina Constantino-David which was marked
"Confidential" and sent through a courier service (LBC) from a certain "Alan San
Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records
Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked "Confidential" are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David.  ATDHSC

The letter-complaint reads:

The Chairwoman
Civil Service Commission

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 Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you
personally if it is just alright for an employee of your agency to be a lawyer of an
accused gov't employee having a pending case in the csc. I honestly think this is a
violation of law and unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in
the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na
division. He have been helping many who have pending cases in the Csc. The
justice in our govt system will not be served if this will continue. Please investigate
this anomaly because our perception of your clean and good office is being
tainted.
Concerned Govt employee 3

Chairperson David immediately formed a team of four personnel with

background in information technology (IT), and issued a memo directing them to
conduct an investigation and specifically "to back up all the files in the computers
found in the Mamamayan Muna (PALD) and Legal divisions." 4 After some briefing, the
team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon
their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV,
respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert
Unite (Director Unite) of Chairperson David's directive.
The backing-up of all  files in the hard disk of computers at the PALD and Legal
Services Division (LSD) was witnessed by several employees, together with Directors
Castillo and Unite who closely monitored said activity. At around 6:00 p.m.,Director
Unite sent text messages to petitioner and the head of LSD, who were both out of the
office at the time, informing them of the ongoing copying of computer files in their
divisions upon orders of the CSC Chair. The text messages received by petitioner read:
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and
LSD per instruction of the Chairman. If you can make it here now it would be better."
"All PCs of PALD and LSD are being backed up per memo of the chair."
"CO IT people arrived just now for this purpose. We were not also informed
about this.
"We can't do anything about ...it ...it's a directive from chair."
"Memo of the chair was referring to an anonymous complaint";"ill send a
copy of the memo via mms" 5

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 Petitioner replied also thru text message that he was leaving the matter to
Director Unite and that he will just get a lawyer. Another text message received by
petitioner from PALD staff also reported the presence of the team from CSC main
office:  "Sir may mga taga C.O. daw sa kuarto natin." 6 At around 10:00 p.m. of the same
day, the investigating team finished their task. The next day, all the computers in the
PALD were sealed and secured for the purpose of preserving all the files stored
therein. Several diskettes containing the back-up files sourced from the hard disk of
PALD and LSD computers were turned over to Chairperson David. The contents of the
diskettes were examined by the CSC's Office for Legal Affairs (OLA). It was found that
most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters 7 in connection with administrative cases in the CSC
and other tribunals. On the basis of this finding, Chairperson David issued the Show-
Cause Order 8 dated January 11, 2007, requiring the petitioner, who had gone on
extended leave, to submit his explanation or counter-affidavit within five days from
notice.  DIEAHc

Evaluating the subject documents obtained from petitioner's personal files,

Chairperson David made the following observations:
Most of the foregoing files are drafts of legal pleadings or documents that
are related to or connected with administrative cases that may broadly be lumped
as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or
other tribunals. It is also of note that most of these draft pleadings are for and on
behalves of parties, who are facing charges as respondents in administrative
cases. This gives rise to the inference that the one who prepared them was
knowingly, deliberately and willfully aiding and advancing interests adverse and
inimical to the interest of the CSC as the central personnel agency of the
government tasked to discipline misfeasance and malfeasance in the government
service. The number of pleadings so prepared further demonstrates that such
person is not merely engaged in an isolated practice but pursues it with seeming
regularity. It would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had engaged in
this customary practice without any consideration, and in fact, one of the
retrieved files (item 13 above) appears to insinuate the collection of fees. That
these draft pleadings were obtained from the computer assigned to Pollo
invariably raises the presumption that he was the one responsible or had a hand
in their drafting or preparation since the computer of origin was within his direct
control and disposition. 9

Petitioner filed his Comment, denying that he is the person referred to in the
anonymous letter-complaint which had no attachments to it, because he is not a
lawyer and neither is he "lawyering" for people with cases in the CSC. He accused CSC
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 officials of conducting a "fishing expedition" when they unlawfully copied and printed
personal files in his computer, and subsequently asking him to submit his comment
which violated his right against self-incrimination. He asserted that he had protested
the unlawful taking of his computer done while he was on leave, citing the letter dated
January 8, 2007 in which he informed Director Castillo that the files in his computer
were his personal files and those of his sister, relatives, friends and some associates
and that he is not authorizing their sealing, copying, duplicating and printing as these
would violate his constitutional right to privacy and protection against self-
incrimination and warrantless search and seizure. He pointed out that though
government property, the temporary use and ownership of the computer issued
under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all
attributes of ownership, including its use for personal purposes. As to the anonymous
letter, petitioner argued that it is not actionable as it failed to comply with the
requirements of a formal complaint under the Uniform Rules on Administrative Cases
in the Civil Service (URACC). In view of the illegal search, the files/documents copied
from his computer without his consent is thus inadmissible as evidence, being "fruits
of a poisonous tree." 10
On February 26, 2007, the CSC issued Resolution No. 070382 11 finding  prima
facie  case against the petitioner and charging him with Dishonesty, Grave Misconduct,
Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No.
6713 (Code of Conduct and Ethical Standards for Public Officials and Employees).
Petitioner was directed to submit his answer under oath within five days from notice
and indicate whether he elects a formal investigation. Since the charges fall under
Section 19 of the URACC, petitioner was likewise placed under 90 days preventive
suspension effective immediately upon receipt of the resolution. Petitioner received a
copy of Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to
Defer) assailing the formal charge as without basis having proceeded from an illegal
search which is beyond the authority of the CSC Chairman, such power pertaining
solely to the court. Petitioner reiterated that he never aided any people with pending
cases at the CSC and alleged that those files found in his computer were prepared not
by him but by certain persons whom he permitted, at one time or another, to make
use of his computer out of close association or friendship. Attached to the motion
were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at
petitioner's CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa's client who
attested that petitioner had nothing to do with the pleadings or bill for legal fees
because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner
contended that the case should be deferred in view of the prejudicial question raised
in the criminal complaint he filed before the Ombudsman against Director Buensalida,
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 whom petitioner believes had instigated this administrative case. He also prayed for
the lifting of the preventive suspension imposed on him. In its Resolution No.
070519 12 dated March 19, 2007, the CSC denied the omnibus motion. The CSC
resolved to treat the said motion as petitioner's answer.  
On March 14, 2007, petitioner filed an Urgent Petition 13 under Rule 65 of
the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11,
2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as
having been issued with grave abuse of discretion amounting to excess or total
absence of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO
IV) before the Office of the Ombudsman, and a separate complaint for disbarment
against Director Buensalida. 14
On April 17, 2007, petitioner received a notice of hearing from the CSC setting
the formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the
CA an Urgent Motion for the issuance of TRO and preliminary injunction. 15 Since he
failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset
the same to May 17, 2007 with warning that the failure of petitioner and/or his
counsel to appear in the said pre-hearing conference shall entitle the prosecution to
proceed with the formal investigation  ex-parte. 16 Petitioner moved to defer or to reset
the pre-hearing conference, claiming that the investigation proceedings should be
held in abeyance pending the resolution of his petition by the CA. The CSC denied his
request and again scheduled the pre-hearing conference on May 18, 2007 with similar
warning on the consequences of petitioner and/or his counsel's non-
appearance. 17 This prompted petitioner to file another motion in the CA, to cite the
respondents, including the hearing officer, in indirect contempt. 18
On June 12, 2007, the CSC issued Resolution No. 071134 19 denying petitioner's
motion to set aside the denial of his motion to defer the proceedings and to inhibit
the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was
directed to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the formal
investigation which then proceeded  ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420, 20 the dispositive part of
which reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds
Briccio A. Pollo,  a.k.a.  Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct,
Conduct Prejudicial to the Best Interest of the Service and Violation of Republic
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 Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its
accessory penalties, namely, disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service eligibilities and bar from taking
future civil service examinations. 21

On the paramount issue of the legality of the search conducted on petitioner's

computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of
this case where the government as employer invades the private files of an employee
stored in the computer assigned to him for his official use, in the course of initial
investigation of possible misconduct committed by said employee and without the
latter's consent or participation. The CSC thus turned to relevant rulings of the United
States Supreme Court, and cited the leading case of O'Connor v. Ortega 22 as authority
for the view that government agencies, in their capacity as employers, rather than law
enforcers, could validly conduct search and seizure in the governmental workplace
without meeting the "probable cause" or warrant requirement for search and seizure.
Another ruling cited by the CSC is the more recent case of United States v. Mark L.
Simons 23 which declared that the federal agency's computer use policy foreclosed any
inference of reasonable expectation of privacy on the part of its employees. Though
the Court therein recognized that such policy did not, at the same time, erode the
respondent's legitimate expectation of privacy in the office in which the computer was
installed, still, the warrantless search of the employee's office was upheld as valid
because a government employer is entitled to conduct a warrantless search pursuant
to an investigation of work-related misconduct provided the search is reasonable in its
inception and scope.  CaDEAT

With the foregoing American jurisprudence as benchmark, the CSC held that
petitioner has no reasonable expectation of privacy with regard to the computer he
was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative
policy, the CSC was of the view that the search of petitioner's computer successfully
passed the test of reasonableness for warrantless searches in the workplace as
enunciated in the aforecited authorities. The CSC stressed that it pursued the search
in its capacity as government employer and that it was undertaken in connection with
an investigation involving work-related misconduct, which exempts it from the
warrant requirement under the Constitution. With the matter of admissibility of the
evidence having been resolved, the CSC then ruled that the totality of evidence
adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial
to the best interest of the service and violation of R.A. No. 6713 against the petitioner.
These grave infractions justified petitioner's dismissal from the service with all its
accessory penalties.
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 In his Memorandum 24 filed in the CA, petitioner moved to incorporate the
above resolution dismissing him from the service in his main petition, in lieu of the
filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed
for the inclusion of Resolution No. 071800 25 which denied his motion for
reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition
for certiorari after finding no grave abuse of discretion committed by respondents CSC
officials. The CA held that: (1) petitioner was not charged on the basis of the
anonymous letter but from the initiative of the CSC after a fact-finding investigation
was conducted and the results thereof yielded a  prima facie  case against him; (2) it
could not be said that in ordering the back-up of files in petitioner's computer and
later confiscating the same, Chairperson David had encroached on the authority of a
judge in view of the CSC computer policy declaring the computers as government
property and that employee-users thereof have no reasonable expectation of privacy
in anything they create, store, send, or receive on the computer system; and (3) there
is nothing contemptuous in CSC's act of proceeding with the formal investigation as
there was no restraining order or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner
brought this appeal arguing that —
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED
SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS
ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC
RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE
ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE
ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED
THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE
SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED
SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL
COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED
TO PROCEDURAL AND ROUTINARY INSTRUCTION;
III

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 THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND
THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M.
IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE
ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE
PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF O.M.
10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND
FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW
ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND
INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE
ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO. 26

Squarely raised by the petitioner is the legality of the search conducted on his
office computer and the copying of his personal files without his knowledge and
consent, alleged as a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet
of the right protected by the guarantee against unreasonable search and seizure
under Section 2, Article III of the 1987 Constitution, 27 which provides:
SEC. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized. 

The constitutional guarantee is not a prohibition of all searches and seizures but
only of "unreasonable" searches and seizures. 28 But to fully understand this concept
and application for the purpose of resolving the issue at hand, it is essential that we
examine the doctrine in the light of pronouncements in another jurisdiction. As the
Court declared in  People v. Marti: 29

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 Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter which, worded
as follows:
"The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon  probable  cause, to be
determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized." (Sec.
1[3],Article III)
was in turn derived almost verbatim from the Fourth Amendment to the
United States Constitution. As such, the Court may turn to the pronouncements of
the United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction. 30

In the 1967 case of Katz v. United States, 31 the US Supreme Court held that
the act of FBI agents in electronically recording a conversation made by petitioner in
an enclosed public telephone booth violated his right to privacy and constituted a
"search and seizure". Because the petitioner had a reasonable expectation of privacy
in using the enclosed booth to make a personal telephone call, the protection of the
Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice
Harlan, it was further noted that the existence of privacy right under prior decisions
involved a two-fold requirement: first, that a person has exhibited an actual
(subjective) expectation of privacy; and second, that the expectation be one that
society is prepared to recognize as reasonable (objective). 32
In  Mancusi v. DeForte 33 which addressed the reasonable expectations
of private  employees in the workplace, the US Supreme Court held that a union
employee had Fourth Amendment rights with regard to an office at union
headquarters that he shared with other union officials, even as the latter or their
guests could enter the office. The Court thus "recognized that employees may have a
reasonable expectation of privacy against intrusions by police."
That the Fourth Amendment equally applies to a government workplace was
addressed in the 1987 case of O'Connor v. Ortega 34 where a physician, Dr. Magno
Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of mismanagement of
the psychiatric residency program, sexual harassment of female hospital employees
and other irregularities involving his private patients under the state medical aid
program, searched his office and seized personal items from his desk and filing
cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose
Fourth Amendment rights merely because they work for the government instead of a
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 private employer." 35 A plurality of four Justices concurred that the correct analysis has
two steps: first, because "some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable", a court must
consider "[t]he operational realities of the workplace" in order to determine whether
an employee's Fourth Amendment rights are implicated; and next, where an
employee has a legitimate privacy expectation, an employer's intrusion on that
expectation "for noninvestigatory, work-related purposes, as well as for investigations
of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances." 36  AIcECS

On the matter of government employees' reasonable expectations of privacy in

their workplace,  O'Connor  teaches:
...Public employees' expectations of privacy in their offices, desks, and file
cabinets, like similar expectations of employees in the private sector, may be
reduced by virtue of actual office practices and procedures, or by legitimate
regulation. ...The employee's expectation of privacy must be assessed in the
context of the employment relation. An office is seldom a private enclave free
from entry by supervisors, other employees, and business and personal invitees.
Instead, in many cases offices are continually entered by fellow employees and
other visitors during the workday for conferences, consultations, and other work-
related visits. Simply put, it is the nature of government offices that others — such
as fellow employees, supervisors, consensual visitors, and the general public —
may have frequent access to an individual's office. We agree with JUSTICE SCALIA
that "[c]onstitutional protection against unreasonable searches by the
government does not disappear merely because the government has the right to
make reasonable intrusions in its capacity as employer," ...but some government
offices may be so open to fellow employees or the public that no
expectation of privacy is reasonable. ...Given the great variety of work
environments in the public sector, the question of whether an employee has
a reasonable expectation of privacy must be addressed on a case-by-case
basis. 37 (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court

declared that Dr. Ortega's Fourth Amendment rights are implicated only if the conduct
of the hospital officials infringed "an expectation of privacy that society is prepared to
consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega
did not share his desk or file cabinets with any other employees, kept personal
correspondence and other private items in his own office while those work-related
files (on physicians in residency training) were stored outside his office, and there
being no evidence that the hospital had established any reasonable regulation or
policy discouraging employees from storing personal papers and effects in their desks
or file cabinets (although the absence of such a policy does not create any expectation
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 of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega
has a reasonable expectation of privacy at least in his desk and file cabinets. 38
Proceeding to the next inquiry as to whether the search conducted by hospital
officials was reasonable, the  O'Connor  plurality decision discussed the following
principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy
in his office, the Court of Appeals simply concluded without discussion that the
"search ...was not a reasonable search under the fourth amendment." ..."[t]o hold
that the Fourth Amendment applies to searches conducted by [public employers]
is only to begin the inquiry into the standards governing such searches ...[W]hat is
reasonable depends on the context within which a search takes place. ...Thus, we
must determine the appropriate standard of reasonableness applicable to the
search. A determination of the standard of reasonableness applicable to a
particular class of searches requires "balanc[ing] the nature and quality of the
intrusion on the individual's Fourth Amendment interests against the importance
of the governmental interests alleged to justify the intrusion." ...In the case of
searches conducted by a public employer, we must balance the invasion of
the employees' legitimate expectations of privacy against the government's
need for supervision, control, and the efficient operation of the workplace.
xxx xxx xxx
In our view, requiring an employer to obtain a warrant whenever the
employer wished to enter an employee's office, desk, or file cabinets for a work-
related purpose would seriously disrupt the routine conduct of business and
would be unduly burdensome. Imposing unwieldy warrant procedures in such
cases upon supervisors, who would otherwise have no reason to be familiar with
such procedures, is simply unreasonable. In contrast to other circumstances in
which we have required warrants, supervisors in offices such as at the Hospital
are hardly in the business of investigating the violation of criminal laws. Rather,
work-related searches are merely incident to the primary business of the agency.
Under these circumstances, the imposition of a warrant requirement would
conflict with the "common-sense realization that government offices could not
function if every employment decision became a constitutional matter." ...  cCHITA

xxx xxx xxx

The governmental interest justifying work-related intrusions by public
employers is the efficient and proper operation of the workplace. Government
agencies provide myriad services to the public, and the work of these agencies
would suffer if employers were required to have probable cause before they
entered an employee's desk for the purpose of finding a file or piece of office
correspondence. Indeed, it is difficult to give the concept of probable cause,
rooted as it is in the criminal investigatory context, much meaning when the
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 purpose of a search is to retrieve a file for work-related reasons. Similarly, the
concept of probable cause has little meaning for a routine inventory conducted by
public employers for the purpose of securing state property. ...To ensure the
efficient and proper operation of the agency, therefore, public employers must be
given wide latitude to enter employee offices for work-related, noninvestigatory
reasons.
We come to a similar conclusion for searches conducted pursuant to an
investigation of work-related employee misconduct. Even when employers
conduct an investigation, they have an interest substantially different from "the
normal need for law enforcement." ...Public employers have an interest in
ensuring that their agencies operate in an effective and efficient manner, and the
work of these agencies inevitably suffers from the inefficiency, incompetence,
mismanagement, or other work-related misfeasance of its employees. Indeed, in
many cases, public employees are entrusted with tremendous responsibility, and
the consequences of their misconduct or incompetence to both the agency and
the public interest can be severe. In contrast to law enforcement officials,
therefore, public employers are not enforcers of the criminal law; instead, public
employers have a direct and overriding interest in ensuring that the work of the
agency is conducted in a proper and efficient manner. In our view, therefore, a
probable cause requirement for searches of the type at issue here would
impose intolerable burdens on public employers. The delay in correcting the
employee misconduct caused by the need for probable cause rather than
reasonable suspicion will be translated into tangible and often irreparable
damage to the agency's work, and ultimately to the public interest. ... 
xxx xxx xxx
In sum, we conclude that the "special needs, beyond the normal need
for law enforcement make the ...probable-cause requirement
impracticable," ...for legitimate, work-related noninvestigatory intrusions as
well as investigations of work-related misconduct. A standard of
reasonableness will neither unduly burden the efforts of government employers
to ensure the efficient and proper operation of the workplace, nor authorize
arbitrary intrusions upon the privacy of public employees. We hold, therefore,
that public employer intrusions on the constitutionally protected privacy
interests of government employees for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct,should be
judged by the standard of reasonableness under all the
circumstances. Under this reasonableness standard, both the inception and
the scope of the intrusion must be reasonable:
"Determining the reasonableness of any search involves a twofold
inquiry: first, one must consider 'whether the ...action was justified at its
inception,' ...;second, one must determine whether the search as actually
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 conducted 'was reasonably related in scope to the circumstances which
justified the interference in the first place,'" ...
Ordinarily, a search of an employee's office by a supervisor will be
"justified at its inception" when there are reasonable grounds for suspecting
that the search will turn up evidence that the employee is guilty of work-
related misconduct, or that the search is necessary for a noninvestigatory
work-related purpose such as to retrieve a needed file. ...The search will be
permissible in its scope when "the measures adopted are reasonably related
to the objectives of the search and not excessively intrusive in light of ...the
nature of the [misconduct]." ...39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the
factual dispute as to the character of the search and neither was there any finding
made as to the scope of the search that was undertaken, the case was remanded to
said court for the determination of the justification for the search and seizure, and
evaluation of the reasonableness of both the inception of the search and its scope.
In  O'Connor  the Court recognized that "special needs" authorize warrantless
searches involving public employees for work-related reasons. The Court thus laid
down a balancing test under which government interests are weighed against the
employee's reasonable expectation of privacy. This reasonableness test implicates
neither probable cause nor the warrant requirement, which are related to law
enforcement. 40
O'Connor  was applied in subsequent cases raising issues on employees' privacy
rights in the workplace. One of these cases involved a government employer's search
of an office computer,  United States v. Mark L. Simons 41 where the defendant Simons,
an employee of a division of the Central Intelligence Agency (CIA), was convicted of
receiving and possessing materials containing child pornography. Simons was
provided with an office which he did not share with anyone, and a computer with
Internet access. The agency had instituted a policy on computer use stating that
employees were to use the Internet for official government business only and that
accessing unlawful material was specifically prohibited. The policy also stated that
users shall understand that the agency will periodically audit, inspect, and/or monitor
the user's Internet access as deemed appropriate. CIA agents instructed its contractor
for the management of the agency's computer network, upon initial discovery of
prohibited internet activity originating from Simons' computer, to conduct a remote
monitoring and examination of Simons' computer. After confirming that Simons had
indeed downloaded pictures that were pornographic in nature, all the files on the
hard drive of Simon's computer were copied from a remote work station. Days later,
the contractor's representative finally entered Simon's office, removed the original
hard drive on Simon's computer, replaced it with a copy, and gave the original to the
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 agency security officer. Thereafter, the agency secured warrants and searched
Simons' office in the evening when Simons was not around. The search
team copied  the contents of Simons' computer; computer diskettes found in Simons'
desk drawer; computer files stored on the zip drive or on zip drive diskettes;
videotapes; and various documents, including personal correspondence. At his trial,
Simons moved to suppress these evidence, arguing that the searches of his office and
computer violated his Fourth Amendment rights. After a hearing, the district court
denied the motion and Simons was found guilty as charged.  CDAcIT

Simons appealed his convictions. The US Supreme Court ruled that the searches
of Simons' computer and office did not violate his Fourth Amendment rights and the
first search warrant was valid. It held that the search remains valid under
the  O'Connor  exception to the warrant requirement because evidence of the crime
was discovered in the course of an otherwise proper administrative inspection.
Simons' violation of the agency's Internet policy happened also to be a violation of
criminal law; this does not mean that said employer lost the capacity and interests of
an employer. The warrantless entry into Simons' office was reasonable under the
Fourth Amendment standard announced in  O'Connor  because at the inception of the
search, the employer had "reasonable grounds for suspecting" that the hard drive
would yield evidence of misconduct, as the employer was already aware that Simons
had misused his Internet access to download over a thousand pornographic images.
The retrieval of the hard drive was reasonably related to the objective of the search,
and the search was not excessively intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not have such legitimate expectation of
privacy with regard to the files in his computer.
...To establish a violation of his rights under the Fourth Amendment,
Simons must first prove that he had a legitimate expectation of privacy in the
place searched or the item seized. ...And, in order to prove a legitimate
expectation of privacy, Simons must show that his subjective expectation of
privacy is one that society is prepared to accept as objectively reasonable. ...
xxx xxx xxx
...We conclude that the remote searches of Simons' computer did not
violate his Fourth Amendment rights because, in light of the Internet policy,
Simons lacked a legitimate expectation of privacy in the files downloaded from
the Internet. Additionally, we conclude that Simons' Fourth Amendment rights
were not violated by FBIS' retrieval of Simons' hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard to
the record or fruits of his Internet use in light of the FBIS Internet policy. The
policy clearly stated that FBIS would "audit, inspect, and/or monitor"
employees' use of the Internet, including all file transfers, all websites
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 visited, and all e-mail messages, "as deemed appropriate." ...This policy
placed employees on notice that they could not reasonably expect that their
Internet activity would be private. Therefore, regardless of whether Simons
subjectively believed that the files he transferred from the Internet were private,
such a belief was not objectively reasonable after FBIS notified him that it would
be overseeing his Internet use. ...Accordingly, FBIS' actions in remotely searching
and seizing the computer files Simons downloaded from the Internet did not
violate the Fourth Amendment.
xxx xxx xxx
The burden is on Simons to prove that he had a legitimate expectation
of privacy in his office....Here, Simons has shown that he had an office that he
did not share. As noted above, the operational realities of Simons' workplace may
have diminished his legitimate privacy expectations. However, there is no
evidence in the record of any workplace practices, procedures, or regulations that
had such an effect. We therefore conclude that, on this record, Simons
possessed a legitimate expectation of privacy in his office.
xxx xxx xxx
In the final analysis, this case involves an employee's supervisor entering
the employee's government office and retrieving a piece of government
equipment in which the employee had absolutely no expectation of privacy —
equipment that the employer knew contained evidence of crimes committed by
the employee in the employee's office. This situation may be contrasted with one
in which the criminal acts of a government employee were unrelated to his
employment. Here, there was a conjunction of the conduct that violated the
employer's policy and the conduct that violated the criminal law. We consider that
FBIS' intrusion into Simons' office to retrieve the hard drive is one in which a
reasonable employer might engage. ...42 (Citations omitted; emphasis supplied.)

This Court, in  Social Justice Society (SJS) v. Dangerous Drugs Board  43 which
involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug
testing of candidates for public office, students of secondary and tertiary schools,
officers and employees of public and private offices, and persons charged before the
prosecutor's office with certain offenses, have also recognized the fact that there may
be such legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of
the privacy interest upon which the drug testing, which effects a search within the
meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of
the employees and the reasonableness of drug testing requirement. The
employees' privacy interest in an office is to a large extent circumscribed by
the company's work policies, the collective bargaining agreement, if any,
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 entered into by management and the bargaining unit, and the inherent
right of the employer to maintain discipline and efficiency in the
workplace. Their privacy expectation in a regulated office environment is, in fine,
reduced; and a degree of impingement upon such privacy has been upheld.
(Emphasis supplied.) ADCETI 

Applying the analysis and principles announced in  O'Connor  and  Simons  to the
case at bar, we now address the following questions: (1) Did petitioner have a
reasonable expectation of privacy in his office and computer files?;and (2) Was the
search authorized by the CSC Chair, the copying of the contents of the hard drive on
petitioner's computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1)
the employee's relationship to the item seized; (2) whether the item was in the
immediate control of the employee when it was seized; and (3) whether the employee
took actions to maintain his privacy in the item." These factors are relevant to both
the subjective and objective prongs of the reasonableness inquiry, and we consider
the two questions together. 44 Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had a
legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment. 45
We answer the first in the negative. Petitioner failed to prove that he had an
actual (subjective) expectation of privacy either in his office or government-issued
computer which contained his personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with anyone, or that his office was
always locked and not open to other employees or visitors. Neither did he allege that
he used passwords or adopted any means to prevent other employees from
accessing his computer files. On the contrary, he submits that being in the public
assistance office of the CSC-ROIV, he normally would have visitors in his office like
friends, associates and even unknown people, whom he even allowed to use his
computer which to him seemed a trivial request. He described his office as "full of
people, his friends, unknown people" and that in the past 22 years he had been
discharging his functions at the PALD, he is "personally assisting incoming clients,
receiving documents, drafting cases on appeals, in charge of accomplishment
report, Mamamayan Muna  Program, Public Sector Unionism, Correction of name,
accreditation of service, and hardly had anytime for himself alone, that in fact he stays
in the office as a paying customer." 46 Under this scenario, it can hardly be deduced
that petitioner had such expectation of privacy that society would recognize as
reasonable.  aASDTE

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 Moreover, even assuming  arguendo,in the absence of allegation or proof of the
aforementioned factual circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is negated by the presence
of policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)"  explicitly
provides:
POLICY
1. The  Computer Resources  are the property of the Civil Service
Commission and may be used only for legitimate business purposes.
2. Users  shall be permitted access to  Computer Resources  to assist them in
the performance of their respective jobs.
3. Use of the  Computer Resources  is a privilege that may be revoked at any
given time.
xxx xxx xxx
No Expectation of Privacy
4. No expectation of privacy. Users  except the Members of the Commission
shall not have an expectation of privacy in anything they create, store, send, or
receive on the computer system.
The Head of the Office for Recruitment, Examination and Placement shall
select and assign  Users  to handle the confidential examination data and
processes.
5. Waiver of privacy rights. Users  expressly waive any right to privacy
in anything they create, store, send, or receive on the computer through the
Internet or any other computer network.Users  understand that the CSC may
use human or automated means to monitor the use of its  Computer
Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not a
personal property or for the exclusive use of a  User  to whom a memorandum of
receipt (MR) has been issued. It can be shared or operated by other
users.However, he is accountable therefor and must insure its care and
maintenance.
xxx xxx xxx
Passwords
12. Responsibility for passwords. Users  shall be responsible for
safeguarding their passwords for access to the computer system. Individual
passwords shall not be printed, stored online, or given to others.  Users  shall be

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 responsible for all transactions made using their passwords.  No User may access
the computer system with another User's password or account.
13. Passwords do not imply privacy. Use of passwords to gain access to the
computer system or to encode particular files or messages does not imply that
Users have an expectation of privacy in the material they create or receive on
the computer system. The Civil Service Commission has global passwords that
permit access to all materials stored on its networked computer system
regardless of whether those materials have been encoded with a
particular User's  password. Only members of the Commission shall authorize
the application of the said global passwords. 
TCEaDI

xxx xxx xxx 47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice
that they have no expectation of privacy in anything they create, store, send or
receive on the office computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This implies that on-the-
spot inspections may be done to ensure that the computer resources were used only
for such legitimate business purposes.
One of the factors stated in  O'Connor  which are relevant in determining
whether an employee's expectation of privacy in the workplace is reasonable is the
existence of a workplace privacy policy. 48 In one case, the US Court of Appeals Eighth
Circuit held that a state university employee has not shown that he had a reasonable
expectation of privacy in his computer files where the university's computer policy,
the computer user is informed not to expect privacy if the university has a legitimate
reason to conduct a search. The user is specifically told that computer files, including
e-mail, can be searched when the university is responding to a discovery request in
the course of litigation. Petitioner employee thus cannot claim a violation of Fourth
Amendment rights when university officials conducted a warrantless search of his
computer for work-related materials. 49
As to the second point of inquiry on the reasonableness of the search
conducted on petitioner's computer, we answer in the affirmative.
The search of petitioner's computer files was conducted in connection with
investigation of work-related misconduct prompted by an anonymous letter-
complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV
where the head of the  Mamamayan Muna Hindi Mamaya Na  division is supposedly
"lawyering" for individuals with pending cases in the CSC. Chairperson David stated in
her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received
several text messages from unknown sources adverting to certain anomalies in
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 Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in
another government agency, "selling" cases and aiding parties with pending
cases, all done during office hours and involved the use of government
properties;
9. That said text messages were not investigated for lack of any verifiable
leads and details sufficient to warrant an investigation;
10. That the anonymous letter provided the lead and details as it
pinpointed the persons and divisions involved in the alleged irregularities
happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities
happening in CSCRO IV and its effect on the integrity of the Commission, I
decided to form a team of Central Office staff to back up the files in the
computers of the Public Assistance and Liaison Division (PALD) and Legal
Division;
xxx xxx xxx 50

A search by a government employer of an employee's office is justified at

inception when there are reasonable grounds for suspecting that it will turn up
evidence that the employee is guilty of work-related misconduct. 51 Thus, in the 2004
case decided by the US Court of Appeals Eighth Circuit, it was held that where a
government agency's computer use policy prohibited electronic messages with
pornographic content and in addition expressly provided that employees  do not have
any personal privacy rights regarding their use of the agency information systems and
technology,the government employee had no legitimate expectation of privacy as to
the use and contents of his office computer, and therefore evidence found during
warrantless search of the computer was admissible in prosecution for child
pornography. In that case, the defendant employee's computer hard drive was first
remotely examined by a computer information technician after his supervisor
received complaints that he was inaccessible and had copied and distributed non-
work-related e-mail messages throughout the office. When the supervisor confirmed
that defendant had used his computer to access the prohibited websites, in
contravention of the express policy of the agency, his computer tower and floppy
disks were taken and examined. A formal administrative investigation ensued and
later search warrants were secured by the police department. The initial remote
search of the hard drive of petitioner's computer, as well as the subsequent
warrantless searches was held as valid under the  O'Connor  ruling that a public
employer can investigate work-related misconduct so long as any search is justified at
inception and is reasonably related in scope to the circumstances that justified it in
the first place. 52 CAHaST 

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 Under the facts obtaining, the search conducted on petitioner's computer was
justified at its inception and scope. We quote with approval the CSC's discussion on
the reasonableness of its actions, consistent as it were with the guidelines established
by  O'Connor:
Even conceding for a moment that there is no such administrative policy,
there is no doubt in the mind of the Commission that the search of Pollo's
computer has successfully passed the test of reasonableness for warrantless
searches in the workplace as enunciated in the above-discussed American
authorities. It bears emphasis that the Commission pursued the search in its
capacity as a government employer and that it was undertaken in
connection with an investigation involving a work-related misconduct,one of
the circumstances exempted from the warrant requirement. At the inception of
the search, a complaint was received recounting that a certain division chief in the
CSCRO No. IV was "lawyering" for parties having pending cases with the said
regional office or in the Commission. The nature of the imputation was
serious, as it was grievously disturbing.If, indeed, a CSC employee was found to
be furtively engaged in the practice of "lawyering" for parties with pending cases
before the Commission would be a highly repugnant scenario, then such a case
would have shattering repercussions. It would undeniably cast clouds of doubt
upon the institutional integrity of the Commission as a quasi-judicial agency, and
in the process, render it less effective in fulfilling its mandate as an impartial and
objective dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be seen to be
so, otherwise the general public would not have any trust and confidence in it.
Considering the damaging nature of the accusation, the Commission
had to act fast,if only to arrest or limit any possible adverse consequence or fall-
out. Thus, on the same date that the complaint was received, a search was
forthwith conducted involving the computer resources in the concerned regional
office. That it was the computers that were subjected to the search was
justified since these furnished the easiest means for an employee to encode
and store documents. Indeed, the computers would be a likely starting point
in ferreting out incriminating evidence. Concomitantly, the ephemeral
nature of computer files, that is, they could easily be destroyed at a click of
a button, necessitated drastic and immediate action. Pointedly, to impose the
need to comply with the probable cause requirement would invariably defeat the
purpose of the work-related investigation.
Worthy to mention, too, is the fact that the Commission effected the
warrantless search in an open and transparent manner. Officials and some
employees of the regional office, who happened to be in the vicinity, were on
hand to observe the process until its completion. In addition, the respondent

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 himself was duly notified, through text messaging, of the search and the
concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search done on
computer assigned to Pollo was not, in any way, vitiated with unconstitutionality.
It was a reasonable exercise of the managerial prerogative of the Commission as
an employer aimed at ensuring its operational effectiveness and efficiency by
going after the work-related misfeasance of its employees. Consequently, the
evidence derived from the questioned search are deemed admissible. 53

Petitioner's claim of violation of his constitutional right to privacy must

necessarily fail. His other argument invoking the privacy of communication and
correspondence under Section 3 (1),Article III of the 1987 Constitution is also
untenable considering the recognition accorded to certain legitimate intrusions into
the privacy of employees in the government workplace under the aforecited
authorities. We likewise find no merit in his contention that O'Connor  and  Simons  are
not relevant because the present case does not involve a criminal offense like child
pornography. As already mentioned, the search of petitioner's computer was justified
there being reasonable ground for suspecting that the files stored therein would yield
incriminating evidence relevant to the investigation being conducted by CSC as
government employer of such misconduct subject of the anonymous complaint. This
situation clearly falls under the exception to the warrantless requirement in
administrative searches defined in  O'Connor.
The Court is not unaware of our decision in  Anonymous Letter-Complaint against
Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila 54 involving a
branch clerk (Atty. Morales) who was investigated on the basis of an anonymous letter
alleging that he was consuming his working hours filing and attending to personal
cases, using office supplies, equipment and utilities. The OCA conducted a spot
investigation aided by NBI agents. The team was able to access Atty. Morales'
personal computer and print two documents stored in its hard drive, which turned
out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in
the name of another lawyer. Atty. Morales' computer was seized and taken in custody
of the OCA but was later ordered released on his motion, but with order to the MISO
to first retrieve the files stored therein. The OCA disagreed with the report of the
Investigating Judge that there was no evidence to support the charge against Atty.
Morales as no one from the OCC personnel who were interviewed would give a
categorical and positive statement affirming the charges against Atty. Morales, along
with other court personnel also charged in the same case. The OCA recommended
that Atty. Morales should be found guilty of gross misconduct. The Court  En Banc  held
that while Atty. Morales may have fallen short of the exacting standards required of
every court employee, the Court cannot use the evidence obtained from
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 his  personal  computer against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence to support the
claim of OCA that they were able to obtain the subject pleadings with the consent of
Atty. Morales, as in fact the latter immediately filed an administrative case against the
persons who conducted the spot investigation, questioning the validity of the
investigation and specifically invoking his constitutional right against unreasonable
search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold
him administratively liable, the Court had no choice but to dismiss the charges against
him for insufficiency of evidence.  TacADE

The above case is to be distinguished from the case at bar because, unlike the
former which involved a  personal  computer of a court employee, the computer from
which the personal files of herein petitioner were retrieved is a government-issued
computer, hence government property the use of which the CSC has absolute right to
regulate and monitor. Such relationship of the petitioner with the item seized (office
computer) and other relevant factors and circumstances under American Fourth
Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer
Use Policy, failed to establish that petitioner had a reasonable expectation of privacy
in the office computer assigned to him.
Having determined that the personal files copied from the office computer of
petitioner are admissible in the administrative case against him, we now proceed to
the issue of whether the CSC was correct in finding the petitioner guilty of the charges
and dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the
CSC, are accorded not only respect but even finality if such findings are supported by
substantial evidence. Substantial evidence is such amount of relevant evidence which
a reasonable mind might accept as adequate to support a conclusion, even if other
equally reasonable minds might conceivably opine otherwise. 55
The CSC based its findings on evidence consisting of a substantial number of
drafts of legal pleadings and documents stored in his office computer, as well as the
sworn affidavits and testimonies of the witnesses it presented during the formal
investigation. According to the CSC, these documents were confirmed to be similar or
exactly the same content-wise with those on the case records of some cases pending
either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also
substantially similar copies of those pleadings filed with the CA and duly furnished the
Commission. Further, the CSC found the explanation given by petitioner, to the effect
that those files retrieved from his computer hard drive actually belonged to his lawyer
friends Estrellado and Solosa whom he allowed the use of his computer for drafting
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 their pleadings in the cases they handle, as implausible and doubtful under the
circumstances. We hold that the CSC's factual finding regarding the authorship of the
subject pleadings and misuse of the office computer is well-supported by the
evidence on record, thus:
It is also striking to note that some of these documents were in the nature
of pleadings responding to the orders, decisions or resolutions of these offices or
directly in opposition to them such as a petition for certiorari  or a motion for
reconsideration of CSC Resolution. This indicates that the author thereof
knowingly and willingly participated in the promotion or advancement of the
interests of parties contrary or antagonistic to the Commission. Worse, the
appearance in one of the retrieved documents the phrase,  "Eric N. Estr[e]llado,
Epal kulang ang bayad mo,"  lends plausibility to an inference that the preparation
or drafting of the legal pleadings was pursued with less than a laudable
motivation. Whoever was responsible for these documents was simply doing the
same for the money — a  "legal mercenary"  selling or purveying his expertise to
the highest bidder, so to speak. 
Inevitably, the fact that these documents were retrieved from the
computer of Pollo raises the presumption that he was the author thereof.
This is because he had a control of the said computer. More significantly, one
of the witnesses, Margarita Reyes, categorically testified seeing a written copy of
one of the pleadings found in the case records lying on the table of the
respondent. This was the Petition for Review in the case of Estrellado addressed
to the Court of Appeals. The said circumstances indubitably demonstrate that
Pollo was secretly undermining the interest of the Commission, his very own
employer.
To deflect any culpability, Pollo would, however, want the Commission to
believe that the documents were the personal files of some of his friends,
including one Attorney Ponciano Solosa, who incidentally served as his counsel of
record during the formal investigation of this case. In fact, Atty. Solosa himself
executed a sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness, Reyes, who testified
that during her entire stay in the PALD, she never saw Atty. Solosa using the
computer assigned to the respondent. Reyes more particularly stated that she
worked in close proximity with Pollo and would have known if Atty. Solosa, whom
she personally knows, was using the computer in question. Further, Atty. Solosa
himself was never presented during the formal investigation to confirm his sworn
statement such that the same constitutes self-serving evidence unworthy of
weight and credence. The same is true with the other supporting affidavits, which
Pollo submitted. cAHIST

At any rate, even admitting for a moment the said contention of the
respondent, it evinces the fact that he was unlawfully authorizing private persons
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 to use the computer assigned to him for official purpose, not only once but
several times gauging by the number of pleadings, for ends not in conformity with
the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation ...Or at the very least, he should be responsible for
serious misconduct for repeatedly allowing CSC resources, that is, the computer
and the electricity, to be utilized for purposes other than what they were officially
intended.
Further, the Commission cannot lend credence to the posturing of the
appellant that the line appearing in one of the documents,  "Eric N. Estrellado, Epal
kulang ang bayad mo,"  was a private joke between the person alluded to therein,
Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything
more sinister. The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer assigned to the
respondent, unless he had something to do with it? 56

Petitioner assails the CA in not ruling that the CSC should not have entertained
an anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC)
requires a verified complaint:
Rule II — Disciplinary Cases

SEC. 8. Complaint. — A complaint against a civil service official or employee

shall not be given due course unless it is in writing and subscribed and sworn to
by the complainant. However, in cases initiated by the proper disciplining
authority, the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious
truth or merit to the allegation therein or supported by documentary or direct
evidence, in which case the person complained of may be required to comment.
xxx xxx xxx

We need not belabor this point raised by petitioner. The administrative

complaint is deemed to have been initiated by the CSC itself when Chairperson David,
after a spot inspection and search of the files stored in the hard drive of computers in
the two divisions adverted to in the anonymous letter — as part of the disciplining
authority's own fact-finding investigation and information-gathering — found a  prima
facie  case against the petitioner who was then directed to file his comment. As this
Court held in  Civil Service Commission v. Court of Appeals 57 —
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No.
292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil
Service, a complaint may be initiated against a civil service officer or
employee by the appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the disciplining authority

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 for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired.
(Emphasis supplied.)

As to petitioner's challenge on the validity of CSC OM 10, S. 2002 (CUP),the same

deserves scant consideration. The alleged infirmity due to the said memorandum
order having been issued solely by the CSC Chair and not the Commission as a
collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored,
was already explained by Chairperson David in her Reply to the Addendum to
Commissioner Buenaflor's previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson David, said
memorandum order was in fact exhaustively discussed, provision by provision in the
January 23, 2002 Commission Meeting, attended by her and former Commissioners
Erestain, Jr. and Valmores. Hence, the Commission  En Banc  at the time saw no need
to issue a Resolution for the purpose and further because the CUP being for internal
use of the Commission, the practice had been to issue a memorandum
order. 58 Moreover, being an administrative rule that is merely internal in nature, or
which regulates only the personnel of the CSC and not the public, the CUP need not
be published prior to its effectivity. 59
In fine, no error or grave abuse of discretion was committed by the CA in
affirming the CSC's ruling that petitioner is guilty of grave misconduct, dishonesty,
conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713.
The gravity of these offenses justified the imposition on petitioner of the ultimate
penalty of dismissal with all its accessory penalties, pursuant to existing rules and
regulations. 
acHCSD

WHEREFORE,the petition for review on certiorari is DENIED.The Decision dated

October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in
CA-G.R. SP No. 98224 are AFFIRMED.
  (Pollo v. Constantino-David, G.R. No. 181881, [October 18, 2011], 675 PHIL 225-300)
|||

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 8.) [G.R. No. 202666. September 29, 2014.]

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID

SUZARA,  petitioners, vs. ST. THERESA'S COLLEGE, MYLENE RHEZA T.
ESCUDERO, and JOHN DOES,  respondents.

DECISION

VELASCO, JR.,  J  :
p

The individual's desire for privacy is never absolute, since participation in

society is an equally powerful desire. Thus each individual is continually engaged
in a personal adjustment process in which he balances the desire for privacy with
the desire for disclosure and communication of himself to others, in light of the
environmental conditions and social norms set by the society in which he lives.
~ Alan Westin,  Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,

in relation to Section 19 of A.M. No. 08-1-16-SC, 1 otherwise known as the "Rule on the
Writ of Habeas Data." Petitioners herein assail the July 27, 2012 Decision 2 of the Regional
Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed
their  habeas data  petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were,
during the period material, graduating high school students at St. Theresa's College (STC),
Cebu City. Sometime in January 2012, while changing into their swimsuits for a beach
party they were about to attend, Julia and Julienne, along with several others, took digital
pictures of themselves clad only in their undergarments. These pictures were then
uploaded by Angela Lindsay Tan (Angela) on her Facebook 3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at
STC's high school department, learned from her students that some seniors at STC
posted pictures online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who the girls in the photos
are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes Taboada (Chloe),
among others.
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 Using STC's computers, Escudero's students logged in to their respective personal
Facebook accounts and showed her photos of the identified students, which include: (a)
Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia
and Julienne along the streets of Cebu wearing articles of clothing that show virtually the
entirety of their black brassieres. What is more, Escudero's students claimed that there
were times when access to or the availability of the identified students' photos was not
confined to the girls' Facebook friends, 4 but were, in fact, viewable by any Facebook
user. 5
Upon discovery, Escudero reported the matter and, through one of her student's
Facebook page, showed the photos to Kristine Rose Tigol (Tigol), STC's Discipline-in-
Charge, for appropriate action. Thereafter, following an investigation, STC found the
identified students to have deported themselves in a manner proscribed by the school's
Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholic beverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains
sexually suggestive messages, language or symbols; and
6. Posing and uploading pictures on the Internet that entail ample body
exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in
question, reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima),
STC's high school principal and ICM 6 Directress. They claimed that during the meeting,
they were castigated and verbally abused by the STC officials present in the conference,
including Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is
more, Sr. Purisima informed their parents the following day that, as part of their penalty,
they are barred from joining the commencement exercises scheduled on March 30,
2012.  EDHCSI

A week before graduation, or on March 23, 2012, Angela's mother, Dr. Armenia M.
Tan (Tan), filed a Petition for Injunction and Damages before the RTC of Cebu City against
STC, et al., docketed as Civil Case No. CEB-38594. 7 In it, Tan prayed that defendants
therein be enjoined from implementing the sanction that precluded Angela from joining
the commencement exercises. On March 25, 2012, petitioner Rhonda Ave Vivares
(Vivares), the mother of Julia, joined the fray as an intervenor.

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 On March 28, 2012, defendants in Civil Case No. CEB-38594 filed their
memorandum, containing printed copies of the photographs in issue as annexes. That
same day, the RTC issued a temporary restraining order (TRO) allowing the students to
attend the graduation ceremony, to which STC filed a motion for reconsideration.
Despite the issuance of the TRO, STC, nevertheless, barred the sanctioned students
from participating in the graduation rites, arguing that, on the date of the
commencement exercises, its adverted motion for reconsideration on the issuance of
the TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of
Habeas Data, docketed as SP. Proc. No. 19251-CEB 8 on the basis of the following
considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken
for posterity before they changed into their swimsuits on the
occasion of a birthday beach party;
2. The privacy setting of their children's Facebook accounts was set at
"Friends Only." They, thus, have a reasonable expectation of privacy
which must be respected.
3. Respondents, being involved in the field of education, knew or ought to
have known of laws that safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the girls, whose
privacy has been invaded, are the victims in this case, and not the
offenders. Worse, after viewing the photos, the minors were called
"immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and
reproduced without their consent. Escudero, however, violated their
rights by saving digital copies of the photos and by subsequently
showing them to STC's officials. Thus, the Facebook accounts of
petitioners' children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of
information, data, and digital images happened at STC's Computer
Laboratory; and
6. All the data and digital images that were extracted were boldly
broadcasted by respondents through their memorandum submitted
to the RTC in connection with Civil Case No. CEB-38594.
To petitioners, the interplay of the foregoing constitutes an invasion of their
children's privacy and, thus, prayed that: (a) a writ of  habeas data  be issued; (b)
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respondents be ordered to surrender and deposit with the court all soft and printed
copies of the subject data before or at the preliminary hearing; and (c) after trial,
judgment be rendered declaring all information, data, and digital images accessed, saved
or stored, reproduced, spread and used, to have been illegally obtained in violation of
the children's right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order
dated July 5, 2012, issued the writ of  habeas data. Through the same Order, herein
respondents were directed to file their verified written return, together with the
supporting affidavits, within five (5) working days from service of the writ.
In time, respondents complied with the RTC's directive and filed their verified
written return, laying down the following grounds for the denial of the petition,  viz.: (a)
petitioners are not the proper parties to file the petition; (b) petitioners are engaging in
forum shopping; (c) the instant case is not one where a writ of  habeas data  may issue;
and (d) there can be no violation of their right to privacy as there is no reasonable
expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for  habeas
data. The dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is
hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxx xxx xxx
SO ORDERED. 9  SEcTHA

To the trial court, petitioners failed to prove the existence of an actual or

threatened violation of the minors' right to privacy, one of the preconditions for the
issuance of the writ of  habeas data. Moreover, the court  a quo  held that the photos,
having been uploaded on Facebook without restrictions as to who may view them, lost
their privacy in some way. Besides, the RTC noted, STC gathered the photographs
through legal means and for a legal purpose, that is, the implementation of the school's
policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant
to Section 19 of the Rule on Habeas Data. 10

The Issues

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 The main issue to be threshed out in this case is whether or not a writ of habeas
data  should be issued given the factual milieu. Crucial in resolving the controversy,
however, is the pivotal point of whether or not there was indeed an actual or threatened
violation of the right to privacy in the life, liberty, or security of the minors involved in this
case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the

availability of the Writ of Habeas Data

The writ of  habeas data is a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party. 11 It is an independent and summary remedy
designed to protect the image, privacy, honor, information, and freedom of information
of an individual, and to provide a forum to enforce one's right to the truth and to
informational privacy. It seeks to protect a person's right to control information
regarding oneself, particularly in instances in which such information is being collected
through unlawful means in order to achieve unlawful ends. 12  IaTSED

In developing the writ of habeas data, the Court aimed to protect an individual's
right to informational privacy, among others. A comparative law scholar has, in fact,
defined  habeas data  as "a procedure designed to safeguard individual freedom from
abuse in the information age." 13 The writ, however, will not issue on the basis merely of
an alleged unauthorized access to information about a person. Availment of the writ
requires the existence of a nexus between the right to privacy on the one hand, and the
right to life, liberty or security on the other. 14 Thus, the existence of a person's right to
informational privacy and a showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim are
indispensable before the privilege of the writ may be extended. 15
Without an actionable entitlement in the first place to the right to informational
privacy, a  habeas data  petition will not prosper. Viewed from the perspective of the case
at bar, this requisite begs this question: given the nature of an online social network
(OSN) — (1) that it facilitates and promotes real-time interaction among millions, if not
billions, of users, sans the spatial barriers, 16 bridging the gap created by physical space;
and (2) that any information uploaded in OSNs leaves an indelible trace in the provider's

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databases, which are outside the control of the end-users — is there a right to
informational privacy in OSN activities of its users? Before addressing this point, We
must first resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal
killings and enforced disappearances
Contrary to respondents' submission, the Writ of  Habeas Data was not
enacted solely for the purpose of complementing the Writ of Amparo in cases of
extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. — Any aggrieved party may file a petition for the writ
of  habeas data. However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degree of consanguinity or affinity, in default of
those mentioned in the preceding paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to
cases of extralegal killings or enforced disappearances, the above underscored portion
of Section 2, reflecting a variance of  habeas data  situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse
in the information age." 17 As such, it is erroneous to limit its applicability to extralegal
killings and enforced disappearances only. In fact, the annotations to the Rule prepared
by the Committee on the Revision of the Rules of Court, after explaining that the Writ
of Habeas Data complements the Writ of Amparo, pointed out that:
The writ of  habeas data, however, can be availed of as an independent
remedy to enforce one's right to privacy, more specifically the right to
informational privacy. The remedies against the violation of such right can
include the updating, rectification, suppression or destruction of the database or
information or files in possession or in control of respondents. 18 (emphasis Ours)

Clearly then, the privilege of the Writ of Habeas Data  may also be availed of in
cases outside of extralegal killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data
or information

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 Respondents' contention that the  habeas data  writ may not issue against STC, it
not being an entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party, while
valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the  habeas data  protection shall
be available only against abuses of a person or entity  engaged in the business  of
gathering, storing, and collecting of data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. — The writ of  habeas data  is a remedy available to
any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or of a
private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence
of the aggrieved party. (emphasis Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys the
idea thathabeas data  is a protection against unlawful acts or omissions of public officials
and of private individuals or entities engaged in gathering, collecting, or storing data
about the aggrieved party and his or her correspondences, or about his or her family.
Such individual or entity need not be in the business of collecting or storing data.  ATcEDS

To "engage" in something is different from undertaking a business endeavour. To

"engage" means "to do or take part in something." 19 It does not necessarily mean that
the activity must be done in pursuit of a business. What matters is that the person or
entity must be gathering, collecting or storing said data or information about the
aggrieved party or his or her family. Whether such undertaking carries the element of
regularity, as when one pursues a business, and is in the nature of a personal endeavour,
for any other reason or even for no reason at all, is immaterial and such will not prevent
the writ from getting to said person or entity.
To agree with respondents' above argument, would mean unduly limiting the reach
of the writ to a very small group, i.e., private persons and entities whose business is data
gathering and storage, and in the process decreasing the effectiveness of the writ as an
instrument designed to protect a right which is easily violated in view of rapid
advancements in the information and communications technology — a right which a
great majority of the users of technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of
the controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

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 The concept of  privacy  has, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly recounted in
former Chief Justice Reynato S. Puno's speech,  The Common Right to Privacy, 20 where he
explained the three strands of the right to privacy,  viz.: (1) locational or situational
privacy; 21 (2) informational privacy; and (3) decisional privacy. 22 Of the three, what is
relevant to the case at bar is the right to informational privacy — usually defined as
the right of individuals to control information about themselves. 23
With the availability of numerous avenues for information gathering and data
sharing nowadays, not to mention each system's inherent vulnerability to attacks and
intrusions, there is more reason that every individual's right to control said flow of
information should be protected and that each individual should have at least a
reasonable expectation of privacy in cyberspace. Several commentators regarding
privacy and social networking sites, however, all agree that given the millions of OSN
users, "[i]n this [Social Networking] environment, privacy is no longer grounded in
reasonable expectations, but rather in some theoretical protocol better known as wishful
thinking." 24
It is due to this notion that the Court saw the pressing need to provide for judicial
remedies that would allow a summary hearing of the unlawful use of data or information
and to remedy possible violations of the right to privacy. 25 In the same vein, the South
African High Court, in its Decision in the landmark case,  H v. W, 26 promulgated on
January 30, 2013, recognized that "[t]he law has to take into account the changing
realities not only technologically but also socially or else it will lose credibility in the eyes
of the people. . . . It is imperative that the courts respond appropriately to changing
times, acting cautiously and with wisdom." Consistent with this, the Court, by developing
what may be viewed as the Philippine model of the writ of  habeas data, in effect,
recognized that, generally speaking, having an expectation of informational privacy is
not necessarily incompatible with engaging in cyberspace activities, including those
that occur in OSNs.
The question now though is up to what extent is the right to privacy protected in
OSNs? Bear in mind that informational privacy involves personal information. At the
same time, the very purpose of OSNs is socializing — sharing a myriad of
information, 27 some of which would have otherwise remained personal.
b. Facebook's Privacy Tools: a response to the clamor for privacy in
OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and to
stay connected to other members of the same or different social media platform through
the sharing of statuses, photos, videos, among others, depending on the services

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provided by the site. It is akin to having a room filled with millions of personal bulletin
boards or "walls," the contents of which are under the control of each and every user. In
his or her bulletin board, a user/owner can post anything — from text, to pictures, to
music and videos — access to which would depend on whether he or she allows one,
some or all of the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking sites,
including the one involved in the case at bar, www.facebook.com (Facebook), which,
according to its developers, people use "to stay connected with friends and family, to
discover what's going on in the world, and to share and express what matters to
them." 28
Facebook connections are established through the process of "friending" another
user. By sending a "friend request," the user invites another to connect their accounts so
that they can view any and all "Public" and "Friends Only" posts of the other. Once the
request is accepted, the link is established and both users are permitted to view the
other user's "Public" or "Friends Only" posts, among others. "Friending," therefore, allows
the user to form or maintain one-to-one relationships with other users, whereby the user
gives his or her "Facebook friend" access to his or her profile and shares certain
information to the latter. 29
To address concerns about privacy, 30 but without defeating its purpose, Facebook
was armed with different privacy tools designed to regulate the accessibility of a user's
profile 31 as well as information uploaded by the user. In  H v. W, 32 the South Gauteng
High Court recognized this ability of the users to "customize their privacy settings," but
did so with this caveat: "Facebook states in its policies that, although it makes every
effort to protect a user's information, these privacy settings are not fool-proof." 33
For instance, a Facebook user can regulate the visibility and accessibility of digital
images (photos), posted on his or her personal bulletin or "wall," except for the user's
profile picture and ID, by selecting his or her desired privacy setting:
(a) Public — the default setting; every Facebook user can view the photo;
(b) Friends of Friends — only the user's Facebook friends and their friends
can view the photo;
(b) Friends — only the user's Facebook friends can view the photo;
(c) Custom — the photo is made visible only to particular friends and/or
networks of the Facebook user; and
(d) Only Me — the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up
barriers to broaden or limit the visibility of his or her specific profile content, statuses,
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and photos, among others, from another user's point of view. In other words, Facebook
extends its users an avenue to make the availability of their Facebook activities reflect
their choice as to "when and to what extent to disclose facts about [themselves] — and
to put others in the position of receiving such confidences." 34 Ideally, the selected setting
will be based on one's desire to interact with others, coupled with the opposing need to
withhold certain information as well as to regulate the spreading of his or her personal
information. Needless to say, as the privacy setting becomes more limiting, fewer
Facebook users can view that user's particular post.  ISDCHA

STC did not violate petitioners' daughters' right to privacy

Without these privacy settings, respondents' contention that there is no reasonable

expectation of privacy in Facebook would, in context, be correct. However, such is not the
case. It is through the availability of said privacy tools that many OSN users are
said to have a subjective expectation that only those to whom they grant access to
their profile will view the information they post or upload thereto. 35
This, however, does not mean that any Facebook user automatically has a
protected expectation of privacy in all of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it is first
necessary that said user, in this case the children of petitioners, manifest the
intention to keep certain posts private, through the employment of measures to
prevent access thereto or to limit its visibility. 36 And this intention can materialize in
cyberspace through the utilization of the OSN's privacy tools. In other words, utilization
of these privacy tools is the manifestation, in cyber world, of the user's invocation
of his or her right to informational privacy. 37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny
access to his or her post or profile detail should not be denied the informational privacy
right which necessarily accompanies said choice. 38 Otherwise, using these privacy tools
would be a feckless exercise, such that if, for instance, a user uploads a photo or any
personal information to his or her Facebook page and sets its privacy level at "Only Me"
or a custom list so that only the user or a chosen few can view it, said photo would still
be deemed public by the courts as if the user never chose to limit the photo's visibility
and accessibility. Such position, if adopted, will not only strip these privacy tools of their
function but it would also disregard the very intention of the user to keep said photo or
information within the confines of his or her private space.
We must now determine the extent that the images in question were visible to
other Facebook users and whether the disclosure was confidential in nature. In other
words, did the minors limit the disclosure of the photos such that the images were kept

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within their zones of privacy? This determination is necessary in resolving the issue of
whether the minors carved out a zone of privacy when the photos were uploaded to
Facebook so that the images will be protected against unauthorized access and
disclosure.
Petitioners, in support of their thesis about their children's privacy right being
violated, insist that Escudero intruded upon their children's Facebook accounts,
downloaded copies of the pictures and showed said photos to Tigol. To them, this was a
breach of the minors' privacy since their Facebook accounts, allegedly, were under "very
private" or "Only Friends" setting safeguarded with a password. 39 Ultimately, they posit
that their children's disclosure was only limited since their profiles were not open to
public viewing. Therefore, according to them, people who are not their Facebook friends,
including respondents, are barred from accessing said post without their knowledge and
consent. As petitioner's children testified, it was Angela who uploaded the subject photos
which were only viewable by the five of them, 40 although who these five are do not
appear on the records.
Escudero, on the other hand, stated in her affidavit 41 that "my students showed
me some pictures of girls clad in brassieres. This student [sic] of mine informed me that
these are senior high school [students] of STC, who are their friends in [F]acebook. . . .
They then said [that] there are still many other photos posted on the Facebook accounts
of these girls. At the computer lab, these students then logged into their Facebook
account [sic], and accessed from there the various photographs . . . . They even told me
that there had been times when these photos were 'public' i.e., not confined to their
friends in Facebook."
In this regard, We cannot give much weight to the minors' testimonies for one key
reason: failure to question the students' act of showing the photos to Tigol disproves
their allegation that the photos were viewable only by the five of them. Without any
evidence to corroborate their statement that the images were visible only to the five of
them, and without their challenging Escudero's claim that the other students were able
to view the photos, their statements are, at best, self-serving, thus deserving scant
consideration. 42
It is well to note that not one of petitioners disputed Escudero's sworn account that
her students, who are the minors' Facebook "friends," showed her the photos using their
own Facebook accounts. This only goes to show that no special means to be able to view
the allegedly private posts were ever resorted to by Escudero's students, 43 and that it is
reasonable to assume, therefore, that the photos were, in reality, viewable either by (1)
their Facebook friends, or (2) by the public at large.

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 Considering that the default setting for Facebook posts is "Public," it can be
surmised that the photographs in question were viewable to everyone on Facebook,
absent any proof that petitioners' children positively limited the disclosure of the
photograph. If such were the case, they cannot invoke the protection attached to the
right to informational privacy. The ensuing pronouncement in  US v. Gines-Perez 44 is most
instructive:  DEAaIS

[A] person who places a photograph on the Internet precisely intends to

forsake and renounce all privacy rights to such imagery, particularly under
circumstances such as here, where the Defendant did not employ protective
measures or devices that would have controlled access to the Web page or the
photograph itself. 45

Also,  United States v. Maxwell 46 held that "[t]he more open the method of
transmission is, the less privacy one can reasonably expect. Messages sent to the public
at large in the chat room or e-mail that is forwarded from correspondent to
correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the
petitioners' contention. In this regard, the cyber community is agreed that the digital
images under this setting still remain to be outside the confines of the zones of privacy in
view of the following:
(1) Facebook "allows the world to be more open and connected by giving its
users the tools to interact and share in any conceivable way;" 47
(2) A good number of Facebook users "befriend" other users who are total
strangers; 48
(3) The sheer number of "Friends" one user has, usually by the hundreds;
and
(4) A user's Facebook friend can "share" 49 the former's post, or
"tag" 50 others who are not Facebook friends with the former, despite
its being visible only to his or her own Facebook friends.
It is well to emphasize at this point that setting a post's or profile detail's privacy to
"Friends" is no assurance that it can no longer be viewed by another user who is not
Facebook friends with the source of the content. The user's own Facebook friend can
share said content or tag his or her own Facebook friend thereto, regardless of whether
the user tagged by the latter is Facebook friends or not with the former. Also, when the
post is shared or when a person is tagged, the respective Facebook friends of the person
who shared the post or who was tagged can view the post, the privacy setting of which
was set at "Friends."

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 To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not
Facebook friends. If C, A's Facebook friend, tags B in A's post, which is set at "Friends,"
the initial audience of 100 (A's own Facebook friends) is dramatically increased to 300 (A's
100 friends plus B's 200 friends or the public, depending upon B's privacy setting). As a
result, the audience who can view the post is effectively expanded — and to a very large
extent.
This, along with its other features and uses, is confirmation of Facebook's proclivity
towards user interaction and socialization rather than seclusion or privacy, as it
encourages broadcasting of individual user posts. In fact, it has been said that OSNs have
facilitated their users' self-tribute, thereby resulting into the "democratization of
fame." 51 Thus, it is suggested, that a profile, or even a post, with visibility set at "Friends
Only" cannot easily, more so automatically, be said to be "very private," contrary to
petitioners' argument.
As applied, even assuming that the photos in issue are visible only to the
sanctioned students' Facebook friends, respondent STC can hardly be taken to task for
the perceived privacy invasion since it was the minors' Facebook friends who showed the
pictures to Tigol. Respondents were mere recipients of what were posted. They did not
resort to any unlawful means of gathering the information as it was voluntarily given to
them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies
with the friends of the minors. Curiously enough, however, neither the minors nor their
parents imputed any violation of privacy against the students who showed the images to
Escudero.
Furthermore, petitioners failed to prove their contention that respondents
reproduced and broadcasted the photographs. In fact, what petitioners attributed to
respondents as an act of offensive disclosure was no more than the actuality that
respondents appended said photographs in their memorandum submitted to the trial
court in connection with Civil Case No. CEB-38594. 52 These are not tantamount to a
violation of the minor's informational privacy rights, contrary to petitioners' assertion.
In sum, there can be no quibbling that the images in question, or to be more
precise, the photos of minor students scantily clad, are personal in nature, likely to affect,
if indiscriminately circulated, the reputation of the minors enrolled in a conservative
institution. However, the records are bereft of any evidence, other than bare assertions
that they utilized Facebook's privacy settings to make the photos visible only to them or
to a select few. Without proof that they placed the photographs subject of this case
within the ambit of their protected zone of privacy, they cannot now insist that they have
an expectation of privacy with respect to the photographs in question.

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 Had it been proved that the access to the pictures posted were limited to the
original uploader, through the "Me Only" privacy setting, or that the user's contact list
has been screened to limit access to a select few, through the "Custom" setting, the
result may have been different, for in such instances, the intention to limit access to the
particular post, instead of being broadcasted to the public at large or all the user's
friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that "the best filter is the one between your children's
ears." 53 This means that self-regulation on the part of OSN users and internet
consumers in general is the best means of avoiding privacy rights violations. 54 As a
cyberspace community member, one has to be proactive in protecting his or her own
privacy. 55 It is in this regard that many OSN users, especially minors, fail. Responsible
social networking or observance of the "netiquettes" 56 on the part of teenagers has been
the concern of many due to the widespread notion that teenagers can sometimes go too
far since they generally lack the people skills or general wisdom to conduct themselves
sensibly in a public forum. 57
Respondent STC is clearly aware of this and incorporating lessons on good cyber
citizenship in its curriculum to educate its students on proper online conduct may be
most timely. Too, it is not only STC but a number of schools and organizations have
already deemed it important to include digital literacy and good cyber citizenship in their
respective programs and curricula in view of the risks that the children are exposed to
every time they participate in online activities. 58 Furthermore, considering the
complexity of the cyber world and its pervasiveness, as well as the dangers that these
children are wittingly or unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating their children
about being a good digital citizen is encouraged by these institutions and organizations.
In fact, it is believed that "to limit such risks, there's no substitute for parental
involvement and supervision." 59
As such, STC cannot be faulted for being steadfast in its duty of teaching its
students to be responsible in their dealings and activities in cyberspace, particularly in
OSNs, when it enforced the disciplinary actions specified in the Student Handbook,
absent a showing that, in the process, it violated the students' rights.
OSN users should be aware of the risks that they expose themselves to whenever
they engage in cyberspace activities. Accordingly, they should be cautious enough to
control their privacy and to exercise sound discretion regarding how much information
about themselves they are willing to give up. Internet consumers ought to be aware that,
by entering or uploading any kind of data or information online, they are automatically
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and inevitably making it permanently available online, the perpetuation of which is
outside the ambit of their control. Furthermore, and more importantly, information,
otherwise private, voluntarily surrendered by them can be opened, read, or copied by
third parties who may or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their online
dealings and activities and must not be negligent in protecting their rights. Equity serves
the vigilant. Demanding relief from the courts, as here, requires that claimants
themselves take utmost care in safeguarding a right which they allege to have been
violated. These are indispensable. We cannot afford protection to persons if they
themselves did nothing to place the matter within the confines of their private zone. OSN
users must be mindful enough to learn the use of privacy tools, to use them if they
desire to keep the information private, and to keep track of changes in the available
privacy settings, such as those of Facebook, especially because Facebook is notorious for
changing these settings and the site's layout often.
In finding that respondent STC and its officials did not violate the minors' privacy
rights, We find no cogent reason to disturb the findings and case disposition of the
court  a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The Decision
dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No.
19251-CEB is hereby AFFIRMED.
  (Vivares v. St. Theresa's College, G.R. No. 202666, [September 29, 2014], 744 PHIL 451-480)
|||

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9.) Olmstead v. US. (See PDF)

Facts of the case

Roy Olmstead was a suspected bootlegger. Without judicial approval, federal agents installed wiretaps in the
basement of Olmstead's building (where he maintained an office) and in the streets near his home. Olmstead
was convicted with evidence obtained from the wiretaps. This case was decided along with Green v. United
States, in which Green and several other defendants were similarly convicted, based on illegally obtained wire-
tapped conversations, for conspiracy to violate the National Prohibition Act by importing, possessing, and
selling illegal liquors. This case was also decided with McInnis v. United States.

Question
Did the use of evidence disclosed in wiretapped private telephone conversations, violate the recorded party's
Fourth and Fifth Amendments?

Conclusion
No. The Court held that neither the Fourth nor Fifth Amendment rights of the recorded parties were violated.
The use of wiretapped conversations as incriminating evidence did not violate their Fifth Amendment protection
against self incrimination because they were not forcibly or illegally made to conduct those conversations.
Instead, the conversations were voluntarily made between the parties and their associates. Moreover, the parties'
Fourth Amendment rights were not infringed because mere wiretapping does not constitute a search and seizure
under the meaning of the Fourth Amendment. These terms refer to an actual physical examination of one's
person, papers, tangible material effects, or home - not their conversations. Finally, the Court added that while
wiretapping may be unethical no court may exclude evidence solely for moral reasons. When criticized for his
opinion, Justice Taft mocked his foes as he wrote to a friend: "If they think we are going to be frightened in our
effort to stand by the law and give the public a chance to punish criminals, they are mistaken, even though we
are condemned for lack of high ideals." This case was reversed by Katz v. U.S. (1967).

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10.) Griswald v Connecticut (see PDF)

Facts of the case

In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in
furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control
clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in
Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by
higher state courts. Their plan was to use the clinic to challenge the constitutionality of the statute under the
Fourteenth Amendment before the Supreme Court. 

Question
Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be
counseled in the use of contraceptives?

Conclusion
A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states
from making the use of contraception by married couples illegal. 

In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right
of marital privacy against state restrictions on contraception. While the Court explained that the Constitution
does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create
penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments
create the right to privacy in marital relations. The Connecticut statute conflicted with the exercise of this right
and was therefore held null and void.

Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to
privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments. 

Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the right
to privacy. 

Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision. 

Justice Black, joined by Justice Stewart, dissented. Unpersuaded by the loose reasoning of the majority, Black
felt that there was no way to infer that the Constitution contained a right to privacy. He also dismissed the views
of the concurrences that it could be found in the Ninth and Fourteenth Amendments. 

Justice Stewart, joined by Justice Black, filed a separate dissenting opinion. Stewart argued that despite his
personal view that the law was "uncommonly silly," he felt that the Court had no choice but to find it
constitutional. 

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11.) Dobbs v Jackson Women’s Health (See PDF)

Facts of the case

In 2018, Mississippi passed a law called the “Gestational Age Act,” which prohibits all abortions, with few exceptions, after 15
weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its
doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order
(TRO). After a hearing, the district court granted the TRO while the litigation proceeded to discovery. After discovery, the
district court granted the clinic’s motion for summary judgment and enjoined Mississippi from enforcing the law, finding that
the state had not provided evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from
banning abortions prior to viability. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question
Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional?

Conclusion
The Constitution does not confer a right to abortion; Roe v. Wade, 410 U.S. 113, and Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833, are overruled. Justice Samuel Alito authored the majority opinion of the Court.

The Constitution does not mention abortion. The right is neither deeply rooted in the nation’s history nor an essential
component of “ordered liberty.” The five factors that should be considered in deciding whether a precedent should be overruled
support overruling Roe v. Wade and Planned Parenthood v. Casey: (1) they “short-circuited the democratic process,” (2) both
lacked grounding in constitutional text, history, or precedent, (3) the tests they established were not “workable,” (4) they caused
distortion of law in other areas, and (5) overruling them would not upend concrete reliance interests.

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 12.) [G.R. No. L-20387. January 31, 1968.]

JESUS P. MORFE,  plaintiff-appellee, vs.  AMELITO R. MUTUC, as Executive

Secretary, ET AL., defendants-appellants.

Jesus P.  Morfe  for his own behalf as plaintiff-appellee.

Solicitor General  for defendants-appellants.

SYLLABUS

1. CONSTITUTIONAL LAW; STATUTES; NULLIFICATION OF; FACTUAL

FOUNDATION NECESSARY TO OVERCOME PRESUMPTION OF VALIDITY. — The lower
court's decision declaring as unconstitutional Section 7, Republic Act No. 3019, insofar
as it required periodical submittal of sworn statements of financial conditions, assets
and liabilities of an official or employee of the government after he had once
submitted such a sworn statement upon assuming office, contained no factual
foundation on which the nullification of this section of the statute could be based. In
the absence of such a factual foundation, the presumption of validity must prevail
(Ermita-Malate Hotel and Motel Operators Association v. The Mayor of Manila, L-
24693, July 31, 1967). On this ground alone, the lower court decision could be
reversed.
2. ID.; ID.; ID.; ID.; RULE LESS RIGID IN CONSTITUTIONAL THREATS TO FREEDOM
OF THE MIND. — Where the nullity of a statute, executive order, or ordinance may not
be readily apparent and the threat to constitutional rights, especially those involving
the freedom of the mind, is present and ominous, there should not be a rigid
insistence on the requirement that evidence be presented.
3. ID.; ID.; ANTI-GRAFT ACT OF 1960; PURPOSE THEREOF. — The Anti- Graft Act
of 1960 was aimed at curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the public service. It is intended
to further promote morality in public administration. A public office must indeed be a
public trust. Nobody can cavil at its objective; the goal to be pursued commands the
assent of all. The conditions then prevailing called for norms of such character. The
times demanded such a remedial device. By the provisions of the challenged section,
it becomes much more difficult by those disposed to take advantage of their position
to commit acts of graft and corruption. While in the attainment of such public good,
no infringement of constitutional rights is permissible, there must be a showing, clear,
categorical, and undeniable, that what the Constitution condemns, the statute allows.

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 4. ID.; POLICE POWER; DEFINITION OF. — Police power is the power to prescribe
regulations to promote the health, morals, education, good order, safety, or the
general welfare of the people. It has been negatively put forth by Justice Malcolm as
"that inherent and plenary power in the state which enables it to prohibit all things
hurtful to the comfort, safety and welfare of society."
5. ID.; ID.; STATUTE ENACTED UNDER THE POLICE POWER OF THE STATE; PUBLIC
OFFICIAL ADVERSELY AFFECTED MAY INVOKE THE PROTECTION OF DUE PROCESS. —
Any public official claiming to be adversely affected by a statute enacted under the
police power of the state to promote morality in public service and thereby limited in
scope to officialdom may rely on the due process clause to annul such statute or any
portion thereof. Since the police power extends to regulatory action affecting persons
in public or private life, then anyone with an alleged grievance can invoke the
protection of due process or liberty as long as such requirement is observed. To the
extent then that the questioned section of the statute compels public officials to do a
certain act, there is an infringement on their liberty. However, under the Constitution,
such a restriction is allowable as long as due process is observed.
6. ID.; ID.; DUE PROCESS; STANDARD TO BE OBSERVED. — The standard of due
process which must exist both as a procedural and as substantive requisite to free a
challenged ordinance, or any governmental action for that matter, from the
imputation of legal infirmity sufficient to spell its doom is its responsiveness to the
supremacy of reason, and obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided. To satisfy the due process
requirement, official action, to paraphrase Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due process is thus hostile to any official
action marred by lack of reasonableness.
7. ID.; ID.; ID.; SECTION 7, R.A. 3019 NEITHER ARBITRARY NOR OPPRESSIVE. — It
would be to dwell in the realm of abstractions and to ignore the harsh and compelling
realities of public service with its ever-present temptation to heed the call of greed
and avarice to condemn as arbitrary and oppressive a requirement as that imposed
on public officials and employees to file such sworn statement of assets and liabilities
every two years after having done so upon assuming office. The due process clause is
not susceptible to such a reproach. There was therefore no unconstitutional exercise
of police power.
8. ID.; ID.; ID.; ID.; RIGHT TO PRIVACY NOT VIOLATED. — The challenged
statutory provision does not call for disclosure of information which infringes on the
right of a person to privacy. It cannot be denied that the rational relationship such a
requirement possesses with the objective of a valid statute goes very far in precluding
assent to an objection of such character. This is not to say that a public officer, by
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 virtue of the position he holds, is bereft of constitutional protection; it is only to
emphasize that in subjecting him to such a further compulsory revelation of his assets
and liabilities, including the statement of the amounts and sources of income, the
amounts of personal and family expenses, and the amount of income taxes paid for
the next preceding calendar year, there is no unconstitutional intrusion into what
would otherwise be a private sphere.
9. ID.; ID.; ID.; ID.; NOT VIOLATIVE OF THE GUARANTEE AGAINST
UNREASONABLE SEARCH AND SEIZURE. — No violation of the guarantee against
unreasonable search and seizure has been shown to exist by such requirement of
further periodical submission of one's financial condition as set forth in the Anti-Graft
of 1960.
10. ID.; ID.; ID.; ID.; PROTECTION AGAINST SELF-INCRIMINATION; WHEN IT MAY
BE INVOKED. — The protection which the guarantee against self- incrimination affords
will have to await, in the language of Justice J.B.L. Reyes, for the existence of actual
cases, "be they criminal, civil or administrative." Prior to such a stage, there is no
pressing need to pass upon the validity of the fear sincerely voiced that there is an
infringement of the non-incrimination clause.
11. ID.; ID.; ID.; ID.; ITS WISDOM CANNOT BE INQUIRED INTO. — The questioned
section of the statute cannot be nullified on the allegation that it constitutes an insult
to the personal integrity and official dignity of public officials. Such action would in
effect question the wisdom of the statute which is not allowable under the principle of
separation of powers. There would be intrusion not allowable under the Constitution
if on a matter left to the discretion of a coordinate branch, the judiciary would
substitute its own.

DECISION

FERNANDO, J  : p

Congress in 1960 enacted the Anti-Graft and Corrupt Practices Act 1 to deter

public officials and employees from committing acts of dishonesty and improve the
tone of morality in public service. It was declared to be the state policy "in line with
the principle that a public office is a public trust, to repress certain acts of public
officers and private persons alike which constitute graft or corrupt practices or which
may lead thereto." 2 Nor was it the first statute of its kind to deal with such a grave
problem in the public service that unfortunately has afflicted the Philippines in the

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 post-war era. An earlier statute decrees the forfeiture in favor of the State of any
property found to have been unlawfully acquired by any public officer or employee. 3
One of the specific provisions of the Anti-Graft and Corrupt Practices Act of 1960
is that every public officer, either within thirty (30) days after its approval or after his
assumption of office "and within the month of January of every other year thereafter,"
as well as upon the termination of his position, shall prepare and file with the head of
the office to which he belongs, a "true detailed and sworn statement of assets and
liabilities, including a statement of the amounts and sources of his income, the
amounts of his personal and family expenses and the amount of income taxes paid
for the next preceding calendar year: . . ." 4
In this declaratory relief proceeding, the periodical submission "within the
month of January of every other year thereafter" of such sworn statement of assets
and liabilities after an officer or employee had once bared his financial condition upon
assumption of once was challenged for being violative of due process as an
oppressive exercise of police power and as an unlawful invasion of the constitutional
right to privacy, implicit in the ban against unreasonable search and seizure construed
together with the prohibition against self-incrimination. The lower court in the
decision appealed from sustained plaintiff, then as well as now, a judge of repute of a
court of first instance. For it, such requirement of periodical submission of such sworn
statement of assets and liabilities exceeds the permissible limit of the police power
and is thus offensive to the due process clause.
We do not view the matter thus and accordingly reverse the lower court.
1.The reversal could be predicated on the absence of evidence to rebut the
presumption of validity. For in this action for declaratory relief filed with the Court of
First Instance of Pangasinan on January 31, 1962, plaintiff, after asserting his belief
"that it was a reasonable requirement for employment that a public officer make of
record his assets and liabilities upon assumption of office and thereby make it
possible thereafter to determine whether, after assuming his position in the public
service, he accumulated assets grossly disproportionate to his reported incomes, (sic)
the herein plaintiff [having] filed within the period of time fixed in the aforesaid
Administrative Order No. 334 the prescribed sworn statement of financial condition,
assets. income and liabilities, . . ." 5 maintained that the provision on the "periodical
filing of sworn statement of financial condition, assets, income and liabilities after an
officer or employee had once bared his financial condition, upon assumption of office,
is oppressive and unconstitutional." 6
As earlier noted, both the protection of due process and the assurance of the
privacy of the individual as may be inferred from the prohibition against unreasonable
search and seizure and self-incrimination were relied upon. There was also the
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 allegation that the above requirement amounts to "an insult to the personal integrity
and official dignity" of public officials, premised as it is "on the unwarranted and
derogatory assumption" that they are "corrupt at heart" and unless thus restrained by
this periodical submission of the statements of "their financial condition, income, and
expenses, they cannot be trusted to desist from committing the corrupt practices
defined . . ." 7 It was further asserted that there was no need for such a provision as
"the income tax law and the tax census law also require statements which can serve
to determine whether an officer or employee in this Republic has enriched himself out
of proportion to his reported income." 8
Then on February 14, 1962, came an Answer of the then Executive Secretary and
the then Secretary of Justice as defendants, where after practically admitting the facts
alleged, they denied the erroneous conclusion of law and as one of the special
affirmative defenses set forth: "1. That when a government official, like plaintiff,
accepts a public position, he is deemed to have voluntarily assumed the obligation to
give information about his personal affair, not only at the time of his assumption of
office but during the time he continues to discharge public trust. The private life of an
employee cannot be segregated from his public life . . ." 9 The answer likewise denied
that there was a violation of his constitutional rights against self-incrimination as well
as unreasonable search and seizure and maintained that "the provision of law in
question cannot be attacked on the ground that it impairs plaintiff s normal and
legitimate enjoyment of his life and liberty because said provision merely seeks to
adopt a reasonable measure of insuring the interest of general welfare in honest and
clean public service and is therefore a legitimate exercise of the police power." 10
On February 27, 1962, plaintiff filed a Motion for judgment on the pleadings as
in his opinion all his material allegations were admitted. Then on March 10, 1962, an
order was issued giving the parties thirty days within which to submit memoranda,
but with or without them, the case was deemed submitted for decision the lower
court being of the belief that "there is no question of facts, . . . the defendants [having
admitted] all the material allegations of the complaint." 11
The decision, now on appeal, came on July 19, 1962, the lower court declaring
"unconstitutional, null and void Section 7, Republic Act No. 3019, in so far as it
required periodical submittal of sworn statements of financial conditions, assets and
liabilities of an official or employee of the government after he had once submitted
such a sworn statement upon assuming office; . . ." 12
In Ermita-Malate Hotel and Motel Operators Association v. The Mayor of
Manila, 13 it was the holding of this Court that in the absence of a factual foundation,
the lower court deciding the matter purely "on the pleadings and the stipulation of
facts, the presumption of validity must prevail." In the present case likewise there was
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 no factual foundation on which the nullification of this section of the statute could be
based. Hence as noted the decision of the lower court could be reversed on that
ground.
A more extended consideration is not inappropriate however, for as likewise
made clear in the above Ermita-Malate Hotel case: "What cannot be stressed
sufficiently is that if the liberty involved were freedom of the mind or the person, the
standard for the validity of governmental acts is much more rigorous and exacting,
but where the liberty curtailed affects at the most rights of property, the permissible
scope of regulatory measure is wider."
Moreover, in the Resolution denying the Motion for Reconsideration in the
above case, we expressly affirmed: "This is not to discount the possibility of a situation
where the nullity of a statute, executive order, or ordinance may not be readily
apparent but the threat to constitutional rights, especially those involving the freedom
of the mind, present and ominous." 14 In such an event therefore, "there should not
be a rigid insistence on the requirement that evidence be presented." Also, in the
same Resolution, Professor Freund was quoted thus: "In short, when freedom of the
mind is imperiled by law, it is freedom that commands a momentum of respect; when
property is imperiled, it is the lawmakers' judgment that commands respect. This dual
standard may not precisely reverse the presumption of constitutionality in civil
liberties cases, but obviously it does set up a hierarchy of values within the due
process clause." 15
2. We inquire first whether or not by virtue of the above requirement for a
periodical submission of sworn statement of assets and liabilities, there is an invasion
of liberty protected by the due process clause.
Under the Anti-Graft Act of 1960, after the statement of policy 16 and definition
of terms, 17 there is an enumeration of corrupt practices declared unlawful in addition
to acts or omissions of public officers already penalized by existing law. They include
persuading, inducing, or influencing another public officer to perform an act
constituting a violation of rules and regulations duly promulgated by competent
authority or an offense in connection with the official duties of the latter, or allowing
himself to be persuaded, induced, or influenced to commit such violation or offense;
requesting or receiving directly or indirectly any gift, present, share, percentage, or
benefit, for himself, or for any other person, in connection with any contract or
transaction between the government and any other party, wherein the public officer
in his official capacity, has to intervene under the law; requesting or receiving directly
or indirectly any gift, present, or other pecuniary or material benefit, for himself or for
another, from any person for whom the public officer, in any manner or capacity, has
secured or obtained, or will secure or obtain, any Government permit or license, in
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 consideration for the help given or to be given; accepting or having any member of his
family accept employment in a private enterprise which has pending official business
with him during the pendency thereof or within one year after its termination; causing
any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident bad faith or
gross inexcusable negligence; neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable time on any matter pending
before him for the purpose of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material benefit or advantage, or for the
purpose of favoring his own interest or giving undue advantage in favor of or
discriminating against any other interested party; entering, on behalf of the
Government, into any contract or transaction manifestly and grossly disadvantageous
to the same, whether or not the public officer profited or will profit thereby; having
directly or indirectly financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official
capacity, or in which he is prohibited by the Constitution or by any law from having
any interests; becoming interested directly or indirectly, for personal gain, or having a
material interest in any transaction or act requiring the approval of a board, panel or
group of which he is a member, and which exercises discretion in such approval, even
if he votes against the same or does not participate in such action; approving or
granting knowingly any license, permit, privilege or benefit in favor of any person not
qualified for or not legally entitled to such license, permit, privilege or advantage, or of
a mere representative or dummy of one who is not so qualified or entitled and
divulging valuable information of a confidential character, acquired by his office or by
him on account of his official position to unauthorized persons, or releasing such
information in advance of its authorized release date. 18
After which come the prohibition on private individuals, 19 prohibition on certain
relatives, 20 and prohibition on Members of Congress. 21 Then there is this
requirement of a statement of assets and liabilities, that portion requiring periodical
submission being challenged here. 22 The other sections of the Act deal with dismissal
due to unexplained wealth, reference being made to the previous statute, 23 penalties
for violation, 24 the vesting of original jurisdiction in the Court of First Instance as the
competent court, 25 the prescription of offenses, 26 the prohibition against any
resignation or retirement pending investigation, criminal or administrative or pending
a prosecution, 27 suspension and loss of benefits, 28 exception of unsolicited gifts or
presents of small or insignificant value as well as recognition of legitimate practice of
one's profession or trade or occupation, 29 the separability clause, 30 and its
effectivity. 31
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 Nothing can be clearer therefore than that the Anti-Graft Act of 1960 like the
earlier statute 32 was precisely aimed at curtailing and minimizing the opportunities
for official corruption and maintaining a standard of honesty in the public service. It is
intended to further promote morality in public administration. A public office must
indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued
commands the assent of all. The conditions then prevailing called for norms of such
character. The times demanded such a remedial device.
The statute was framed with that end in view. It is comprehensive in character,
sufficiently detailed and explicit to make clear to all and sundry what practices were
prohibited and penalized. More than that, an effort was made, so evident from even a
cursory perusal thereof, to avoid evasions and plug loopholes. One such feature is the
challenged section. Thereby it becomes much more difficult by those disposed to take
advantage of their positions to commit acts of graft and corruption.
While in the attainment of such public good, no infringement of constitutional
rights is permissible, there must be a showing, clear, categorical, and undeniable, that
what the Constitution condemns, the statute allows. More specifically, since that is the
only question raised, is that portion of the statute requiring periodical submission of
assets and liabilities, after an officer or employee had previously done so upon
assuming office, so infected with infirmity that it cannot be upheld as valid?
Or, in traditional terminology, is this requirement a valid exercise of the police
power? In the aforesaid Ermita-Malate Hotel decision, 33 there is a reaffirmation of its
nature and scope as embracing the power to prescribe regulations to promote the
health, morals, education, good order, safety, or the general welfare of the people. It
has been negatively put forth by Justice Malcolm as "that inherent and plenary power
in the state which enables it to prohibit all things hurtful to the comfort, safety and
welfare of society." 34
Earlier Philippine cases refer to police power as the power to promote the
general welfare and public interest; 35 to enact such laws in relation to persons and
property as may promote public health, public morals, public safety and the general
welfare of each inhabitant; 36 to preserve public order and to prevent offenses against
the state and to establish for the intercourse of citizen with citizen those rules of good
manners and good neighborhood calculated to prevent conflict of rights. 37 In his
work on due process, Mott 38 stated that the term  police power was first used by Chief
Justice Marshall. 39
As currently in use both in Philippine and American decisions then, police power
legislation usually has reference to regulatory measures restraining either the rights
to property or liberty of private individuals. It is undeniable however that one of its
earliest definitions, valid then as well as now, given by Marshall's successor, Chief
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 Justice Taney, does not limit its scope to curtailment of rights whether of liberty or
property of private individuals. Thus: "But what are the police powers of a State? They
are nothing more or less than the powers of government inherent in every
sovereignty to the extent of its dominions. And whether a State passes a quarantine
law, or a law to punish offenses, or to establish courts of justice, or requiring certain
instruments to be recorded, or to regulate commerce within its own limits, in every
case it exercises the same power; that is to say, the power of sovereignty, the power
to govern men and things within the limits of its domain." 40 Text writers like Cooley
and Burdick were of a similar mind. 41
What is under consideration is a statute enacted under the police power of the
state to promote morality in public service necessarily limited in scope to officialdom.
May a public official claiming to be adversely affected rely on the due process clause
to annul such statute or any portion thereof? The answer must be in the affirmative. If
the police power extends to regulatory action affecting persons in public or private
life, then anyone with an alleged grievance can invoke the protection of due process
which permits deprivation of property or liberty as long as such requirement is
observed.
While the soundness of the assertion that a public office is a public trust and as
such not amounting to property in its usual sense cannot be denied, there can be no
disputing the proposition that from the standpoint of the security of tenure
guaranteed by the Constitution the mantle of protection afforded by due process
could rightfully be invoked. It was so implicitly held in Lacson v. Romero, 42 in line with
the then pertinent statutory provisions 43 that procedural due process in the form of
an investigation at which he must be given a fair hearing and an opportunity to
defend himself must be observed before a civil service officer or employee may be
removed. There was a reaffirmation of the view in even stronger language when this
Court through Justice Tuason in Lacson v. Roque, 44 declared that even without
express provision of law, "it is established by the great weight of authority that the
power of removal or suspension for cause can not, except by clear statutory authority,
be exercised without notice and hearing." Such is likewise the import of a statement
from the then Justice, now Chief Justice, Concepcion, speaking for the Court in
Meneses v. Lacson; 45 "At any rate, the reinstatement directed in the decision
appealed from does not bar such appropriate administrative action as the behaviour
of petitioners herein may warrant, upon compliance with the requirements of due
process."
To the same effect is the holding of this Court extending the mantle of the
security of tenure provision to employees of government-owned or controlled
corporations entrusted with governmental functions when through Justice Padilla in

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 Tabora v. Montelibano, 46 it stressed: "That safeguard, guarantee, or feeling of security
that they would hold their office or employment during good behavior and would not
be dismissed without justifiable cause to be determined in an investigation, where an
opportunity to be heard and defend themselves in person or by counsel is afforded
them, would bring about such a desirable condition." Reference was there made to
promoting honesty and efficiency through an assurance of stability in their
employment relation. It was to be expected then that through Justice Labrador in
Unabia v. City Mayor, 47 this Court could categorically affirm: "As the removal of
petitioner was made without investigation and without cause, said removal is null and
void . . ."
It was but logical therefore to expect an explicit holding of the applicability of
due process guaranty to be forthcoming. It did in Cammayo v. Viña, 48 where the
opinion of Justice Endencia for the Court contained the following unmistakable
language: "Evidently, having these facts in view, it cannot be pretended that the
constitutional provision of due process of law for the removal of the petitioner has
not been complied with."
Then came this restatement of the principle from the pen of Justice J.B.L. Reyes:
"We are thus compelled to conclude that the positions formerly held by appellees
were not primarily confidential in nature so as to make their terms of office co-
terminal with the confidence reposed in them. The inevitable corollary is that
respondents-appellees, Leon Piñero, et al., were not subject to dismissal or removal,
except for cause specified by law and with due process . . ." 49 In a still later decision,
Abaya v. Subido, 50 this Court, through Justice Sanchez, emphasized "that the vitality of
the constitutional principle of due process cannot be allowed to weaken by
sanctioning cancellation" of an employee's eligibility or "of his dismissal from service
— without hearing — upon a doubtful assumption that he has admitted his guilt for
an offense against Civil Service rules." Equally emphatic is this observation from the
same case: "A civil service employee should be heard before he is condemned.
Jurisprudence has clung to this rule with such unrelenting grasp that by now it would
appear trite to make citations thereof."
If as is so clearly and unequivocally held by this Court, due process may be
relied upon by public official to protect the security of tenure which in that limited
sense is analogous to property, could he not likewise avail himself of such
constitutional guarantee to strike down what he considers to be an infringement of
his liberty? Both on principle, reason and authority, the answer must be in the
affirmative. Even a public official has certain rights to freedom the government must
respect. To the extent then, that there is a curtailment thereof, it could only be
permissible if the due process mandate is not disregarded.

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 Since under the constitutional scheme, liberty is the rule and restraint the
exception, the question raised cannot just be brushed aside. In a leading Philippine
case, Rubi v. Provincial Board, 51 liberty as guaranteed by the Constitution was defined
by Justice Malcolm to include "the right to exist and the right to be free from arbitrary
personal restraint or servitude. The term cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the faculties with which he has been endowed by his Creator, subject
only to such restraint as are necessary for the common welfare." In accordance with
this case therefore, the rights of the citizens to be free to use his facilities in all lawful
ways; to live and work where he will; to earn his livelihood by any lawful calling; to
pursue any avocation, are all deemed embraced in the concept of liberty. This Court in
the same case, however, gave the warning that liberty as understood in democracies,
is not license. Implied in the term is restraint by law for the good of the individual and
for the greater good, the peace and order of society and the general well-being. No
one can do exactly as he pleases. Every man must renounce unbridled license. In the
words of Mabini as quoted by Justice Malcolm, "liberty is freedom to do right and
never wrong; it is ever guided by reason and the upright and honorable conscience of
the individual."
The liberty to be safeguarded is, as pointed out by Chief Justice Hughes, liberty
in a social organization, 52 implying the absence of arbitrary restraint not immunity
from reasonable regulations and prohibitions imposed in the interest of the
community. 53 It was Linton's view that "to belong to a society is to sacrifice some
measure of individual liberty, no matter how slight the restraints which the society
consciously imposes." 54 The above statement from Linton, however, should be
understood in the sense that liberty, in the interest of public health, public order or
safety, of general welfare, in other words through the proper exercise of the police
power, may be regulated. The individual though, as Justice Cardozo pointed out, has
still left a "domain of free activity that cannot be touched by government or law at all,
whether the command is specially against him or generally against him and others." 55
Is this provision for a periodical submission of sworn statement of assets and
liabilities after he had filed one upon assumption of office beyond the power of
government to impose? Admittedly without the challenged provision, a public officer
would be free from such a requirement. To the extent then that there is a compulsion
to act in a certain way, his liberty is affected. It cannot be denied however that under
the Constitution, such a restriction is allowable as long as due process is observed.
The more crucial question therefore is whether there is an observance of due
process. That leads us to an inquiry into its significance. "There is no controlling and
precise definition of due process. It furnishes though a standard to which

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 governmental action should conform in order that deprivation of life, liberty or
property, in each appropriate case, be valid. What then is the standard of due process
which must exist both as a procedural and as substantive requisite to free the
challenged ordinance, or any governmental action for that matter, from the
imputation of legal infirmity sufficient to spell its doom? It is responsiveness to the
supremacy of reason, obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided. To satisfy the due process
requirement, official action, to paraphrase Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due process is thus hostile to any official
action marred by lack of reasonableness. Correctly has it been identified as freedom
from arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts
fealty 'to those strivings for justice' and judges the act of officialdom of whatever
branch 'in the light of reason drawn from considerations of fairness that reflect
[democratic] traditions of legal and political thought.' It is not a narrow or 'technical
conception with fixed content unrelated to time, place and circumstances,' decisions
based on such a clause requiring a 'close and perceptive inquiry into fundamental
principles of our society.' Questions of due process are not to be treated narrowly or
pedantically in slavery to form or phrases." 56
It would be to dwell in the realm of abstractions and to ignore the harsh and
compelling realities of public service with its ever-present temptation to heed the call
of greed and avarice to condemn as arbitrary and oppressive a requirement as that
imposed on public officials and employees to file such sworn statement of assets and
liabilities every two years after having done so upon assuming office. The due process
clause is not susceptible to such a reproach. There was therefore no unconstitutional
exercise of the police power.
4.The due process question touching on an alleged deprivation of liberty as thus
resolved goes a long way in disposing of the objections raised by plaintiff that the
provision on the periodical submission of a sworn statement of assets and liabilities is
violative of the constitutional right to privacy. There is much to be said for this view of
Justice Douglas: "Liberty in the constitutional sense must mean more than freedom
from unlawful governmental restraint; it must include privacy as well, if it is to be a
repository of freedom. The right to be let alone is indeed the beginning of all
freedom." 57 As a matter of fact, this right to be let alone is, to quote from Mr. Justice
Brandeis "the most comprehensive of rights and the right most valued by civilized
men." 58
The concept of liberty would be emasculated if it does not likewise compel
respect for his personality as a unique individual whose claim to privacy and
interference demands respect. As Laski so very aptly stated: "Man is one among

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 many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his
civic obligations are built. He cannot abandon the consequences of his isolation,
which are, broadly speaking, that his experience is private, and the will built out of
that experience personal to himself. If he surrenders his will to others, he surrenders
his personality. If his will is set by the will of others, he ceases to be master of himself.
I cannot believe that a man no longer master of himself is in any real sense free." 59
Nonetheless, in view of the fact that there is an express recognition of privacy,
specifically that of communication and correspondence which "shall be inviolable
except upon lawful order of Court or when public safety and order" 60 may otherwise
require, and implicitly in the search and seizure clause, 61 and the liberty of
abode, 62 the alleged repugnancy of such statutory requirement of further periodical
submission of a sworn statement of assets and liabilities deserves to be further
looked into.
In that respect the question is one of first impression, no previous decision
having been rendered by this Court. It is not so in the United States where, in the
leading case of Griswold v. Connecticut, 63 Justice Douglas, speaking for five members
of the Court, stated: "Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one, as we have
seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any
house' in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures.' The Fifth Amendment in its Self-Incrimination clause enables the citizen to
create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the
people."' After referring to various American Supreme Court decisions, 64 Justice
Douglas continued: "These cases bear witness that the right of privacy which presses
for recognition is a legitimate one."
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." 65 It has wider implication though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully deserving
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 of constitutional protection. The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen. This is
indeed one of the basic distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government safeguards
a private sector, which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this private sector —
protection, in other words, of the dignity and integrity of the individual — has become
increasingly important as modern society has developed. All the forces of a
technological age — industrialization, urbanization, and organization — operate to
narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society." 66
Even with due recognition of such a view, it cannot be said that the challenged
statutory provision calls for disclosure of information which infringes on the right of a
person to privacy. It cannot be denied that the rational relationship such a
requirement possesses with the objective of a valid statute goes very far in
precluding assent to an objection of such character. This is not to say that a public
officer, by virtue of a position he holds, is bereft of constitutional protection; it is only
to emphasize that in subjecting him to such a further compulsory revelation of his
assets and liabilities, including the statement of the amounts and sources of income,
the amounts of personal and family expenses, and the amount of income taxes paid
for the next preceding calendar year, there is no unconstitutional intrusion into what
otherwise would be a private sphere.
5. Could it be said, however, as plaintiff contends, that in so far as the
challenged provision requires the periodical filing of a sworn statement of financial
condition, it would be violative of the guarantees against unreasonable search and
seizure and against self-incrimination?
His complaint cited on this point Davis v. United States. 67 In that case, petitioner
Davis was convicted under an information charging him with unlawfully having in his
possession a number of gasoline ration coupons representing so many gallons of
gasoline, an offense penalized under a 1940 statute. 68 He was convicted both in the
lower court and in the Circuit Court of Appeals over the objection that there was an
unlawful search which resulted in the seizure of the coupons and that their use at the
trial was in violation of Supreme Court decisions. 69 In the District Court, there was a
finding that he consented to the search and seizure. The Circuit Court of Appeals did
not disturb that finding although expressed doubt concerning it, affirming however

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 under the view that such seized coupons were properly introduced in evidence, the
search and seizure being incidental to an arrest, and therefore reasonable regardless
of petitioner's consent.
In affirming the conviction the United States Supreme Court, through Justice
Douglas emphasized that the Court was dealing in this case "not with private papers
or documents, but with gasoline ration coupons which never became the private
property of the holder but remained at all times the property of the government and
subject to inspection and recall by it." 70 He made it clear that the opinion was not to
be understood as suggesting "that officers seeking to reclaim government property
may proceed lawlessly and subject to no restraints. Nor [does it] suggest that the right
to inspect under the regulations subjects a dealer to a general search of his papers for
the purpose of learning whether he has any coupons subject to inspection and
seizure. The nature of the coupons is important here merely as indicating that the
officers did not exceed the permissible limits of persuasion in obtaining them." 71
True, there was a strong dissenting opinion by Justice Frankfurter in which
Justice Murphy joined, critical of what it considered "a process of devitalizing
interpretation" which in this particular case gave approval "to what was done by
arresting officers" and expressing the regret that the Court might be "in danger of
forgetting that the Bill of Rights reflects experience with police excesses."
Even this opinion, however, conceded that the constitutional guarantee against
unreasonable search and seizure "does not give freedom from testimonial
compulsion. Subject to familiar qualifications every man is under obligation to give
testimony. But that obligation can be exacted only under judicial sanctions which are
deemed precious to Anglo-American civilization. Merely because there may be the
duty to make documents available for litigation does not mean that police officers
may forcibly or fraudulently obtain them. This protection of the right to be let alone
except under responsible judicial compulsion is precisely what the Fourth
Amendment meant to express and to safeguard." 72
It would appear then that a reliance on that case for an allegation that this
statutory provision offends against the unreasonable search and seizure clause would
be futile and unavailing. This is the more so in the light of the latest decision of this
Court in Stonehill v. Diokno, 73 where this Court, through Chief Justice Concepcion,
after stressing that the constitutional requirements must be strictly complied with,
and that it would be "a legal heresy of the highest order" to convict anybody of a
violation of certain statutes without reference to any of its determinate provisions
delimited its scope as "one of the most fundamental rights guaranteed in our
Constitution," safeguarding "the sanctity of the domicile and the privacy of
communication and correspondence . . ." Such is precisely the evil sought to be
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 remedied by the constitutional provision above quoted — to outlaw the so-called
general warrants.
It thus appears clear that no violation of the guarantee against unreasonable
search and seizure has been shown to exist by such requirement of further periodical
submission of one's financial condition as set forth in the Anti-Graft Act of 1960.
Nor does the contention of plaintiff gain greater plausibility, much less elicit
acceptance, by his invocation of the non-incrimination clause. According to the
Constitution: "No person shall be compelled to be a witness against himself." 74 This
constitutional provision gives the accused immunity from any attempt by the
prosecution to make easier its task by coercing or intimidating him to furnish the
evidence necessary to convict. He may confess, but only if he voluntarily wills it. He
may admit certain facts but only if he freely chooses to. 75 Or he could remain silent,
and the prosecution is powerless to compel him to talk. 76 Proof is not solely
testimonial in character. It may be documentary. Neither then could the accused be
ordered to write, when what comes from his pen may constitute evidence of guilt or
innocence. 77 Moreover, there can be no search or seizure of his house, papers or
effects for the purpose of locating incriminatory matter. 78
In a declaratory action proceeding then, the objection based on the guaranty
against self-incrimination is far from decisive. It is well to note what Justice Tuason
stated: "What the above inhibition seeks to [prevent] is compulsory disclosure of
incriminating facts." 79 Necessarily then, the protection it affords will have to await, in
the language of Justice J.B.L. Reyes, the existence of actual cases, "be they criminal,
civil or administrative." 80 Prior to such a stage there is no pressing need to pass upon
the validity of the fear sincerely voiced that there is an infringement of the non-
incrimination clause. What was said in an American State decision is of relevance. In
that case, a statutory provision requiring any person operating a motor vehicle, who
knows that injury has been caused a person or property, to stop and give his name,
residence, and his license number to the injured party or to a police officer was
sustained as against the contention that the information thus exacted may be used as
evidence to establish his connection with the injury and therefore compels him to
incriminate himself. As was stated in the opinion: "If the law which exacts this
information is invalid, because such information, although in itself no evidence of
guilt, might possibly lead to a charge of crime against the informant, then all police
regulations which involve identification may be questioned on the same ground. We
are not aware of any constitutional provision designed to protect a man's conduct
from judicial inquiry, or aid him in fleeing from justice. But, even if a constitutional
right be involved, it is not necessary to invalidate the statute to secure its protection.
If, in this particular case, the constitutional privilege justified the refusal to give the

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 information exacted by the statute, that question can be raised in the defense to the
pending prosecution. Whether it would avail, we are not called upon to decide in this
proceeding." 81
6. Nor could such a provision be nullified on the allegation that it constitutes "an
insult to the personal integrity and official dignity" of public officials. On its face, it
cannot thus be stigmatized. As to its being unnecessary, it is well to remember that
this Court, in the language of Justice Laurel, "does not pass upon questions of wisdom,
justice or expediency of legislation." 82 As expressed by Justice Tuason: "It is not the
province of the courts to supervise legislation and keep it within the bounds of
propriety and common sense. That is primarily and exclusively a legislative
concern." 83 There can be no possible objection then to the observation of Justice
Montemayor: "As long as laws do not violate any Constitutional provision, the Courts
merely interpret and apply them regardless of whether or not they are wise or
salutary." 84 For they, according to Justice Labrador, "are not supposed to override
legitimate policy and . . . never inquire into the wisdom of the law." 85
It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v.
Commission on Elections, 86 that only congressional power or competence, not the
wisdom of the action taken, may be the basis for declaring a statute invalid. This is as
it ought to be. The principle of separation of powers has in the main wisely allocated
the respective authority of each department and confined its jurisdiction to such a
sphere. There would then be intrusion not allowable under the Constitution if on a
matter left to the discretion of a coordinate branch, the judiciary would substitute its
own. If there be adherence to the rule of law, as there ought to be, the last offender
should be courts of justice, to which rightly litigants submit their controversy precisely
to maintain unimpaired the supremacy of legal norms and prescriptions. The attack
on the validity of the challenged provision likewise insofar as there may be objections,
even if valid and cogent, on its wisdom cannot be sustained.
WHEREFORE, the decision of the lower court of July 19, 1962 "declaring
unconstitutional, null and void Section 7, Republic Act No. 3019, insofar as it requires
periodical submittal of sworn statements of financial conditions, assets and liabilities
of an official or employee of the government after he had once submitted such a
sworn statement . . . is reversed." Without costs.
  (Morfe v. Mutuc, G.R. No. L-20387, [January 31, 1968], 130 PHIL 415-442)
|||

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 13.) [G.R. No. L-69809. October 16, 1986.]

EDGARDO A. GAANAN,  petitioner, vs. INTERMEDIATE APPELLATE COURT

and PEOPLE OF THE PHILIPPINES,  respondents.

DECISION

GUTIERREZ, JR., J  : p

This petition for certiorari asks for an interpretation of Republic Act (RA) No.
4200, otherwise known as the Anti-Wiretapping Act, on the issue of whether or not an
extension telephone is among the prohibited devices in Section 1 of the Act, such that
its use to overhear a private conversation would constitute unlawful interception of
communications between the two parties using a telephone line.
The facts presented by the People and narrated in the respondent court's
decision are not disputed by the petitioner.
"In the morning of October 22, 1975, complainant Atty. Tito Pintor and his
client Manuel Montebon were in the living room of complainant's residence
discussing the terms for the withdrawal of the complaint for direct assault which
they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico.
After they had decided on the proposed conditions, complainant made a
telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).
"That same morning, Laconico telephoned appellant, who is a lawyer to
come to his office and advise him on the settlement of the direct assault case
because his regular lawyer, Atty. Leon Gonzaga, went on a business trip.
According to the request, appellant went to the office of Laconico where he was
briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
"When complainant called up, Laconico requested appellant to secretly
listen to the telephone conversation through a telephone extension so as to hear
personally the proposed conditions for the settlement. Appellant heard
complainant enumerate the following conditions for withdrawal of the complaint
for direct assault"
"(a) the P5,000.00 was no longer acceptable, and that the figure had
been increased to P8,000.00. A breakdown of the P8,000.00 had been made
together with other demands, to wit: (a) P5,000.00 no longer for the teacher
Manuel Montebon, but for Atty. Pintor himself in persuading his client to
withdraw the case for Direct Assault against Atty. Laconico before the Cebu
City Fiscal's Office;
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 "(b) Public apology to be made by Atty. Laconico before the students
of Don Bosco Technical High School;
"(c) P1,000.00 to be given to the Don Bosco Faculty club;
"(d) transfer of son of Atty. Laconico to another school or another
section of Don Bosco Technical High School;
"(e) Affidavit of desistance by Atty. Laconico on the Maltreatment
case earlier filed against Manuel Montebon at the Cebu City Fiscal's Office,
whereas Montebon's affidavit of desistance on the Direct Assault Case
against Atty. Laconico to be filed later;
"(f) Allow Manuel Montebon to continue teaching at the Don Bosco
Technical School;
"(g) Not to divulge the truth about the settlement of the Direct
Assault Case to the mass media;
"(h) P2,000.00 attorney's fees for Atty. Pintor. (tsn, August 26, 1981,
pp. 47-48).
"Twenty minutes later, complainant called up again to ask Laconico if he
was agreeable to the conditions. Laconico answered `Yes'. Complainant then told
Laconico to wait for instructions on where to deliver the money. (tsn, March 10,
1983, pp. 2-12).
"Complainant called up again and instructed Laconico to give the money to
his wife at the office of the then Department of Public Highways. Laconico who
earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of
the Philippine Constabulary, insisted that complainant himself should receive the
money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo
Restaurant, complainant was arrested by agents of the Philippine Constabulary.
"Appellant executed on the following day an affidavit stating that he heard
complainant demand P8,000.00 for the withdrawal of the case for direct assault.
Laconico attached the affidavit of appellant to the complainant for
robbery/extortion which he filed against complainant. Since appellant listened to
the telephone conversation without complainant's consent, complainant charged
appellant and Laconico with violation of the Anti-Wiretapping Act."

After trial on the merits, the lower court, in a decision dated November 22, 1982,
found both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200.
The two were each sentenced to one (1) year imprisonment with costs. Not satisfied
with the decision, the petitioner appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of
the trial court, holding that the communication between the complainant and accused

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 Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the
petitioner overheard such communication without the knowledge and consent of the
complainant; and that the extension telephone which was used by the petitioner to
overhear the telephone conversation between complainant and Laconico is covered
in the term "device" as provided in Rep. Act No. 4200.  LLphil

In this petition for certiorari, the petitioner assails the decision of the appellate
court and raises the following issues; (a) whether or not the telephone conversation
between the complainant and accused Laconico was private in nature; (b) whether or
not an extension telephone is covered by the term "device or arrangement"
under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or
overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is
ambiguous and, therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
"Section 1. It shall be unlawful for any person, not being authorized by all
the parties to any private communication or spoken word, to tap any wire or cable
or by using any other device or arrangement, to secretly overhear, intercept, or
record such communication or spoken word by using a device commonly known
as a dictaphone or dictagraph or detectaphone or walkie-talkie or taperecorder,
or however otherwise described;
It shall be unlawful for any person, be he a participant or not in the act or
acts penalized in the next preceeding sentence, to knowingly possess any tape
record, wire record, disc record, or any other such record, or copies thereof, of
any communication or spoken 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 to communicate the contents thereof, either verbally
or in writing, or to furnish transcriptions thereof, whether complete or partial, to
any other person: Provided, that the 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."

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not
a rule of evidence. The issue is not the admissibility of evidence secured over an
extension line of a telephone by a third party. The issue is whether or not the person
called over the telephone and his lawyer listening to the conversation on an extension
line should both face prison sentences simply because the extension was used to
enable them to both listen to an alleged attempt at extortion.
There is no question that the telephone conversation between complainant
Atty. Pintor and accused Atty. Laconico was "private" in the sense that the words
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 uttered were made between one person and another as distinguished from words
between a speaker and a public. It is also undisputed that only one of the parties gave
the petitioner the authority to listen to and overhear the caller's message with the use
of an extension telephone line. Obviously, complainant Pintor, a member of the
Philippine bar, would not have discussed the alleged demand for an P8,000.00
consideration in order to have his client withdraw a direct assault charge against Atty.
Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was
also listening. We have to consider, however, that affirmance of the criminal
conviction would, in effect, mean that a caller by merely using a telephone line can
force the listener to secrecy no matter how obscene, criminal, or annoying the call
may be. It would be the word of the caller against the listener's.
Because of technical problems caused by the sensitive nature of electronic
equipment and the extra heavy loads which telephone cables are made to carry in
certain areas, telephone users often encounter what are called "crossed lines". An
unwary citizen who happens to pick up his telephone and who overhears the details
of a crime might hesitate to inform police authorities if he knows that he could be
accused under Rep. Act 4200 of using his own telephone to secretly overhear the
private communications of the would be criminals. Surely the law was never intended
for such mischievous results. LibLex

The main issue in the resolution of this petition, however, revolves around the
meaning of the phrase "any other device or arrangement." Is an extension of a
telephone unit such a device or arrangement as would subject the user to
imprisonment ranging from six months to six years with the accessory penalty of
perpetual absolute disqualification for a public officer or deportation for an alien?
Private secretaries with extension lines to their bosses' telephones are sometimes
asked to use answering or recording devices to record business conversations
between a boss and another businessman. Would transcribing a recorded message
for the use of the boss be a proscribed offense? Or for that matter, would a "party
line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not
included in the enumeration of "commonly known" listening or recording devices, nor
do they belong to the same class of enumerated electronic devices contemplated by
law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was
being considered in the Senate, telephones and extension telephones were already
widely used instruments, probably the most popularly known communication device.
Whether or not listening over a telephone party line would be punishable was
discussed on the floor of the Senate. Yet, when the bill was finalized into a statute, no
mention was made of telephones in the enumeration of devices "commonly known as
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 a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or
however otherwise described." The omission was not a mere oversight. Telephone
party lines were intentionally deleted from the provisions of the Act.
The respondent People argue that an extension telephone is embraced and
covered by the term "device" within the context of the aforementioned law because it
is not a part or portion of a complete set of a telephone apparatus. It is a separate
device and distinct set of a movable apparatus consisting of a wire and a set of
telephone receiver not forming part of a main telephone set which can be detached
or removed and can be transferred away from one place to another and to be
plugged or attached to a main telephone line to get the desired communication
coming from the other party or end.
The law refers to a "tap" of a wire or cable or the use of a "device or
arrangement" for the purpose of secretly overhearing, intercepting, or recording the
communication. There must be either a physical interruption through a wiretap or
the deliberate installation of a device or arrangement in order to overhear, intercept,
or record the spoken words.  LLpr

An extension telephone cannot be placed in the same category as a dictaphone,

dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use
thereof cannot be considered as "tapping" the wire or cable of a telephone line. The
telephone extension in this case was not installed for that purpose. It just happened
to be there for ordinary office use. It is a rule in statutory construction that in order to
determine the true intent of the legislature, the particular clauses and phrases of the
statute should not be taken as detached and isolated expressions, but the whole and
every part thereof must be considered in fixing the meaning of any of its parts. (see
Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113, 120).
In the case of Empire Insurance Company v. Rufino (90 SCRA 437, 443-444), we
ruled:
"Likewise, Article 1372 of the Civil Code stipulates that `however general
the terms of a contract may be, they shall not be understood to comprehend
things that are distinct and cases that are different from those upon which the
parties intended to agree.' Similarly, Article 1374 of the same Code provides that
'the various stipulations of a contract shall be interpreted together, attributing to
the doubtful ones that sense which may result from all of them taken jointly.'

xxx xxx xxx

"Consequently, the phrase `all liabilities or obligations of the decedent'

used in paragraph 5(c) and 7(d) should be then restricted only to those listed in
the Inventory and should not be construed as to comprehend all other obligations
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 of the decedent. The rule that `particularization followed by a general expression
will ordinarily be restricted to the former' is based on the fact in human
experience that usually the minds of parties are addressed specially to the
particularization, and that the generalities, though broad enough to comprehend
other fields if they stood alone, are used in contemplation of that upon which the
minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134
Wis. 603, 607; 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973
ed., pp. 180-181."

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200,

although not exclusive to that enumerated therein, should be construed to
comprehend instruments of the same or similar nature, that is, instruments the use of
which would be tantamount to tapping the main line of a telephone. It refers to
instruments whose installation or presence cannot be presumed by the party or
parties being overheard because, by their very nature, they are not of common usage
and their purpose is precisely for tapping, intercepting or recording a telephone
conversation.
An extension telephone is an instrument which is very common especially now
when the extended unit does not have to be connected by wire to the main telephone
but can be moved from place to place within a radius of a kilometer or more. A
person should safely presume that the party he is calling at the other end of the line
probably has an extension telephone and he runs the risk of a third party listening as
in the case of a party line or a telephone unit which shares its line with another. As
was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):  prLL

"Common experience tells us that a call to a particular telephone number

may cause the bell to ring in more than one ordinarily used instrument. Each
party to a telephone conversation takes the risk that the other party may have an
extension telephone and may allow another to overhear the conversation. When
such takes place there has been no violation of any privacy of which the parties
may complain. Consequently, one element of 605, interception, has not
occurred."

In the same case, the Court further ruled that the conduct of the party would
differ in no way if instead of repeating the message he held out his hand-set so that
another could hear out of it and that there is no distinction between that sort of
action and permitting an outsider to use an extension telephone for the same
purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in
favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an
extension telephone is included in the phrase "device or arrangement", the penal

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 statute must be construed as not including an extension telephone. In the case
of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:
"American jurisprudence sets down the reason for this rule to be `the
tenderness of the law of the rights of individuals; the object is to establish a
certain rule by conformity to which mankind would be safe, and the discretion of
the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609;
Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d
549; Jennings v. Commonwealth, 109 VA 821, 63 SE 1080, all cited in 73 Am Jur 2d
452.) The purpose is not to enable a guilty person to escape punishment through
a technicality but to provide a precise definition of forbidden acts." (State v.
Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction,
Rev. Ed. pp. 183-184)."

In the same case of Purisima, we also ruled that in the construction or

interpretation of a legislative measure, the primary rule is to search for and determine
the intent and spirit of the law. A perusal of the Senate Congressional Records will
show that not only did our lawmakers not contemplate the inclusion of an extension
telephone as a prohibited "device or arrangement" but of greater importance, they
were more concerned with penalizing the act of recording than the act of merely
listening to a telephone conversation.

xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment which is

certainly objectionable. It is made possible by special amendment which
Your Honor may introduce.
Senator Diokno. Your Honor, I would feel that entrapment would be less possible
with the amendment than without it, because with the amendment the
evidence of entrapment would only consist of government testimony as
against the testimony of the defendant. With this amendment, they would
have the right, and the government officials and the person in fact would
have the right to tape record their conversation.
Senator Tañada. In case of entrapment, it would be the government.
Senator Diokno. In the same way, under this provision, neither party could record
and, therefore, the court would be limited to saying: "Okay, who is more
credible, the police officers or the defendant?" In these cases, as
experienced lawyers, we know that the Court go with the peace offices.
(Congressional Record, Vol. III, No. 33, p. 628, March 12, 1964).
xxx xxx xxx

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 Senator Diokno. The point I have in mind is that under these conditions, with an
agent outside listening in, he could falsify the testimony and there is no way
of checking it. But if you allow him to record or make a recording in any
form of what is happening, then the chances of falsifying the evidence is
not very much.
Senator Tañada. Your Honor, this bill is not intended to prevent the presentation
of false testimony. If we could devise a way by which we could prevent the
presentation of false testimony, it would be wonderful. But what this bill
intends to prohibit is the use of tape record and other electronic devices to
intercept private conversations which later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through

punishment, persons such as government authorities or representatives of organized
groups from installing devices in order to gather evidence for use in court or to
intimidate, blackmail or gain some unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be punishable must strictly be with
the use of the enumerated devices in RA No. 4200 or others of similar nature. We are
of the view that an extension telephone is not among such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then Intermediate
Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is
hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as
the Anti-Wiretapping Act.
  (Gaanan v. Intermediate Appellate Court, G.R. No. L-69809, [October 16, 1986], 229 PHIL
|||

139-150)

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 14.) [G.R. No. 204894. March 10, 2014.]

PEOPLE OF THE PHILIPPINES,  appellee,vs. NOEL ENOJAS y HINGPIT,

ARNOLD GOMEZ y FABREGAS, FERNANDO SANTOS y DELANTAR, and
ROGER JALANDONI y ARI,  appellants.

DECISION

ABAD,  J  :p

On September 4, 2006 the City Prosecutor of Las Piñas charged appellants Noel
Enojas  y  Hingpit (Enojas),Arnold Gomez  y  Fabregas (Gomez),Fernando
Santos  y  Delantar (Santos),and Roger Jalandoni  y  Ari (Jalandoni) with murder before
the Las Piñas Regional Trial Court (RTC) in Criminal Case 06-0854. 1
PO2 Eduardo Gregorio, Jr. (PO2 Gregorio) testified that at around 10:30 in the
evening of August 29, 2006, he and PO2 Francisco Pangilinan (PO2 Pangilinan) were
patrolling the vicinity of Toyota Alabang and SM Southmall when they spotted a taxi
that was suspiciously parked in front of the Aguila Auto Glass shop near the
intersection of BF Almanza and Alabang-Zapote Roads. The officers approached the
taxi and asked the driver, later identified as accused Enojas, for his documents. The
latter complied but, having entertained doubts regarding the veracity of documents
shown them, they asked him to come with them to the police station in their mobile
car for further questioning. 2
Accused Enojas voluntarily went with the police officers and left his taxi behind.
On reaching the 7-11 convenience store on the Zapote-Alabang Road, however, they
stopped and PO2 Pangilinan went down to relieve himself there. As he approached
the store's door, however, he came upon two suspected robbers and shot it out with
them. PO2 Pangilinan shot one suspect dead and hit the other who still managed to
escape. But someone fired at PO2 Pangilinan causing his death.
On hearing the shots, PO2 Gregorio came around and fired at an armed man
whom he saw running towards Pilar Village. He saw another man, who came from the
Jollibbee * outlet, run towards Alabang-Zapote Road while firing his gun at PO2
Gregorio. The latter returned fire but the men were able to take a taxi and escape.
PO2 Gregorio radioed for help and for an ambulance. On returning to his mobile car,
he realized that accused Enojas, the taxi driver they had with them had fled.
P/Insp. Ferjen Torred (Torred), the Chief of Investigation Division of the Las
Piñas Police, testified that he and PO2 Teoson Rosarito (PO2 Rosarito) immediately
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 responded to PO2 Gregorio's urgent call. Suspecting that accused Enojas, the taxi
driver who fled, was involved in the attempted robbery, they searched the abandoned
taxi and found a mobile phone that Enojas apparently left behind. P/Ins. Torred
instructed PO3 Joel Cambi (PO3 Cambi) to monitor its incoming messages. 3  EAIcCS

The police later ascertained that the suspect whom PO2 Pangilinan had killed
was someone named Reynaldo Mendoza who was armed with a .38 caliber revolver.
The police found spent 9 mm and M-16 rifle shells at the crime scene. Follow-up
operations at nearby provinces resulted in finding the dead body of one of the
suspects, Alex Angeles, at the Metro South Medical Center along Molino, Bacoor,
Cavite. 4
PO3 Cambi and PO2 Rosarito testified that they monitored the messages in
accused Enojas' mobile phone and, posing as Enojas, communicated with the other
accused. The police then conducted an entrapment operation that resulted in the
arrest of accused Santos and Jalandoni. Subsequently, the police were also able to
capture accused Enojas and Gomez. The prosecution presented the transcripts of the
mobile phone text messages between Enojas and some of his co-accused. 5
The victim's father, Ricardo Pangilinan, testified that his son was at the time of
his death 28 years old, unmarried, and was receiving police pay of P8,000.00 to
P10,000.00 per month. Ricardo spent P99,999 for burial expense, P16,000.00 for the
interment services, and P50,000.00 for purchase of the cemetery lot. 6
Manifesting in open court that they did not want to adduce any evidence or
testify in the case, 7 the accused opted to instead file a trial memorandum on March
10, 2008 for their defense. They pointed out that they were entitled to an acquittal
since they were all illegally arrested and since the evidence of the text messages were
inadmissible, not having been properly identified.
On June 2, 2008 the RTC rendered judgment, 8 finding all the accused guilty of
murder qualified by evident premeditation and use of armed men with the special
aggravating circumstance of use of unlicensed firearms. It thus sentenced them to
suffer the penalty of reclusion perpetua,without the possibility of parole and to
indemnify the heirs of PO2 Pangilinan with P165,999.00 as actual damages,
P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P2,080,000.00
as compensation for loss of earning capacity.
Upon review in CA-G.R. CR-H.C. 03377, on June 14, 2012 the Court of Appeals
(CA) dismissed the appeal and affirmed in toto the conviction of the accused. 9 The CA,
however, found the absence of evident premeditation since the prosecution failed to
prove that the several accused planned the crime before committing it. The accused
appealed from the CA to this Court. 10

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 The defense points out that the prosecution failed to present direct evidence
that the accused Enojas, Gomez, Santos, or Jalandoni took part in shooting PO2
Pangilinan dead. 11 This may be true but the prosecution could prove their liability by
circumstantial evidence that meets the evidentiary standard of proof beyond
reasonable doubt. It has been held that circumstantial evidence is sufficient for
conviction if: 1) there is more than one circumstance; 2) the facts from which the
inferences are derived are proven; and 3) the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt. 12
Here the totality of the circumstantial evidence the prosecution presented
sufficiently provides basis for the conviction of all the accused. Thus:
1. PO2 Gregorio positively identified accused Enojas as the driver of the
taxicab suspiciously parked in front of the Aguila Auto Glass shop. The officers
were bringing him with them to the police station because of the questionable
documents he showed upon query. Subsequent inspection of the taxicab yielded
Enojas' mobile phone that contained messages which led to the entrapment and
capture of the other accused who were also taxicab drivers.
2. Enojas fled during the commotion rather than remain in the cab to go to
the police station where he was about to be taken for questioning, tending to
show that he had something to hide. He certainly did not go to the police
afterwards to clear up the matter and claim his taxi.
3. PO2 Gregorio positively identified accused Gomez as one of the men he
saw running away from the scene of the shooting.
4. The text messages identified "Kua Justin" as one of those who engaged
PO2 Pangilinan in the shootout; the messages also referred to "Kua Justin" as the
one who was hit in such shootout and later died in a hospital in Bacoor, Cavite.
These messages linked the other accused.
5. During the follow-up operations, the police investigators succeeded in
entrapping accused Santos, Jalandoni, Enojas, and Gomez, who were all named in
the text messages.
6. The text messages sent to the phone recovered from the taxi driven by
Enojas clearly made references to the 7-11 shootout and to the wounding of "Kua
Justin," one of the gunmen, and his subsequent death. ASTcaE

7. The context of the messages showed that the accused were members of
an organized group of taxicab drivers engaged in illegal activities.
8. Upon the arrest of the accused, they were found in possession of mobile
phones with call numbers that corresponded to the senders of the messages
received on the mobile phone that accused Enojas left in his taxicab. 13

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 The Court must, however, disagree with the CA's ruling that the aggravating
circumstances of a) aid of armed men and b) use of unlicensed firearms qualified the
killing of PO2 Pangilinan to murder. In "aid of armed men," the men act as
accomplices only. They must not be acting in the commission of the crime under the
same purpose as the principal accused, otherwise they are to be regarded as co-
principals or co-conspirators. The use of unlicensed firearm, on the other hand, is a
special aggravating circumstance that is not among the circumstances mentioned in
Article 248 of the Revised Penal Code as qualifying a homicide to
murder. 14 Consequently, the accused in this case may be held liable only for
homicide, aggravated by the use of unlicensed firearms, a circumstance alleged in the
information.
As to the admissibility of the text messages, the RTC admitted them in
conformity with the Court's earlier Resolution applying the Rules on Electronic
Evidence to criminal actions. 15 Text messages are to be proved by the testimony of a
person who was a party to the same or has personal knowledge of them. 16 Here, PO3
Cambi, posing as the accused Enojas, exchanged text messages with the other
accused in order to identify and entrap them. As the recipient of those messages sent
from and to the mobile phone in his possession, PO3 Cambi had personal knowledge
of such messages and was competent to testify on them.
The accused lament that they were arrested without a valid warrant of arrest.
But, assuming that this was so, it cannot be a ground for acquitting them of the crime
charged but for rejecting any evidence that may have been taken from them after an
unauthorized search as an incident of an unlawful arrest, a point that is not in issue
here. At any rate, a crime had been committed — the killing of PO2 Pangilinan — and
the investigating police officers had personal knowledge of facts indicating that the
persons they were to arrest had committed it. 17 The text messages to and from the
mobile phone left at the scene by accused Enojas provided strong leads on the
participation and identities of the accused. Indeed, the police caught them in an
entrapment using this knowledge.
The award of damages by the courts below has to be modified to conform to
current jurisprudence. 18
WHEREFORE,the Court MODIFIES the Court of Appeals Decision of June 14,
2012 in CA-G.R. CR-HC 03377. The Court instead FINDS accused-appellants Noel
Enojas  y  Hingpit, Arnold Gomez  y  Fabregas, Fernando Santos  y  Delantar, and Roger
Jalandoni  y  Ari GUILTY of the lesser crime of HOMICIDE with the special aggravating
circumstance of use of unlicensed firearms. Applying the Indeterminate Sentence
Law, the Court SENTENCES each of them to 12 years of prision mayor,as minimum, to
20 years of reclusion temporal,as maximum. The Court also MODIFIES the award of
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 exemplary damages by increasing it to P30,000.00, with an additional P50,000.00 for
civil indemnity. 
aHTcDA

  (People v. Enojas y Hingpit, G.R. No. 204894, [March 10, 2014])

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 15.) [G.R. No. 193636. July 24, 2012.]

MARYNETTE R. GAMBOA,  petitioner, vs. P/SSUPT. MARLOU C. CHAN, in

his capacity as the PNP-Provincial Director of Ilocos Norte, and P/SUPT.
WILLIAM O. FANG, in his capacity as Chief, Intelligence Division, PNP
Provincial Office, Ilocos Norte,  respondents.

DECISION

SERENO,  J  : p

Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court)

filed pursuant to Rule 19 1 of the Rule on the Writ of Habeas Data, 2 seeking a review of
the 9 September 2010 Decision in Special Proc. No. 14979 of the Regional Trial Court,
First Judicial Region, Laoag City, Branch 13 (RTC Br. 13). 3 The questioned Decision
denied petitioner the privilege of the writ of habeas data. 4
At the time the present Petition was filed, petitioner Marynette R. Gamboa
(Gamboa) was the Mayor of Dingras, Ilocos Norte. 5 Meanwhile, respondent Police
Senior Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and
respondent Police Superintendent (P/SUPT.) William O. Fang was the Chief of the
Provincial Investigation and Detective Management Branch, both of the Ilocos Norte
Police Provincial Office. 6
On 8 December 2009, former President Gloria Macapagal-Arroyo
issued Administrative Order No. 275 (A.O. 275), "Creating an Independent
Commission to Address the Alleged Existence of Private Armies in the Country." 7 The
body, which was later on referred to as the Zeñarosa Commission, 8 was formed to
investigate the existence of private army groups (PAGs) in the country with a view to
eliminating them before the 10 May 2010 elections and dismantling them
permanently in the future. 9 Upon the conclusion of its investigation, the Zeñarosa
Commission released and submitted to the Office of the President a confidential
report entitled "A Journey Towards H.O.P.E.: The Independent Commission Against
Private Armies' Report to the President" (the Report). 10 cSICHD

Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP-Ilocos
Norte) conducted a series of surveillance operations against her and her aides, 11 and
classified her as someone who keeps a PAG. 12 Purportedly without the benefit of data
verification, PNP-Ilocos Norte forwarded the information gathered on her to the
Zeñarosa Commission, 13 thereby causing her inclusion in the Report's enumeration of
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 individuals maintaining PAGs. 14 More specifically, she pointed out the following items
reflected therein:
(a) The Report cited the PNP as its source for the portion regarding the status of
PAGs in the Philippines. 15
(b) The Report stated that ". . . the PNP organized one dedicated Special Task
Group (STG) for each private armed group (PAG) to monitor and counteract their
activities." 16
(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP
and captioned as "Status of PAGs Monitoring by STGs as of April 19, 2010," which
classifies PAGs in the country according to region, indicates their identity, and lists the
prominent personalities with whom these groups are associated. 17 The first entry in
the table names a PAG, known as the Gamboa Group, linked to herein petitioner
Gamboa. 18
(d) Statistics on the status of PAGs were based on data from the PNP, to wit:
The resolutions were the subject of a national press conference held in
Malacañang on March 24, 2010 at which time, the Commission was also asked to
comment on the PNP report that out of one hundred seventeen (117) partisan
armed groups validated, twenty-four (24) had been dismantled with sixty-seven
(67) members apprehended and more than eighty-six (86) firearms
confiscated. 
CASaEc

Commissioner Herman Basbaño qualified that said statistics were based on

PNP data but that the more significant fact from his report is that the PNP has
been vigilant in monitoring the activities of these armed groups and this vigilance
is largely due to the existence of the Commission which has continued
communicating with the [Armed Forces of the Philippines (AFP)] and PNP
personnel in the field to constantly provide data on the activities of the PAGs.
Commissioner Basbaño stressed that the Commission's efforts have preempted
the formation of the PAGs because now everyone is aware that there is a body
monitoring the PAGs['] movement through the PNP. Commissioner [Lieutenant
General Edilberto Pardo Adan] also clarified that the PAGs are being destabilized
so that their ability to threaten and sow fear during the election has been
considerably weakened. 19

(e) The Report briefly touched upon the validation system of the PNP:
Also, in order to provide the Commission with accurate data which is truly
reflective of the situation in the field, the PNP complied with the Commission's
recommendation that they revise their validation system to include those PAGs
previously listed as dormant. In the most recent briefing provided by the PNP on

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 April 26, 2010, there are one hundred seven (107) existing PAGs. Of these groups,
the PNP reported that seven (7) PAGs have been reorganized. 20

On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the
portion of the Report naming Gamboa as one of the politicians alleged to be
maintaining a PAG. 21 Gamboa averred that her association with a PAG also appeared
on print media. 22 Thus, she was publicly tagged as someone who maintains a PAG on
the basis of the unverified information that the PNP-Ilocos Norte gathered and
forwarded to the Zeñarosa Commission. 23 As a result, she claimed that her malicious
or reckless inclusion in the enumeration of personalities maintaining a PAG as
published in the Report also made her, as well as her supporters and other people
identified with her, susceptible to harassment and police surveillance operations. 24
Contending that her right to privacy was violated and her reputation maligned
and destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ
of habeas data against respondents in their capacities as officials of the PNP-Ilocos
Norte. 25 In her Petition, she prayed for the following reliefs: (a) destruction of the
unverified reports from the PNP-Ilocos Norte database; (b) withdrawal of all
information forwarded to higher PNP officials; (c) rectification of the damage done to
her honor; (d) ordering respondents to refrain from forwarding unverified reports
against her; and (e) restraining respondents from making baseless reports. 26
The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13,
which issued the corresponding writ on 14 July 2010 after finding the Petition
meritorious on its face. 27 Thus, the trial court (a) instructed respondents to submit all
information and reports forwarded to and used by the Zeñarosa Commission as basis
to include her in the list of persons maintaining PAGs; (b) directed respondents, and
any person acting on their behalf, to cease and desist from forwarding to the
Zeñarosa Commission, or to any other government entity, information that they may
have gathered against her without the approval of the court; (c) ordered respondents
to make a written return of the writ together with supporting affidavits; and (d)
scheduled the summary hearing of the case on 23 July 2010. 28  ADEHTS

In their Return of the Writ, respondents alleged that they had acted within the
bounds of their mandate in conducting the investigation and surveillance of
Gamboa. 29 The information stored in their database supposedly pertained to two
criminal cases in which she was implicated, namely: (a) a Complaint for murder and
frustrated murder docketed as NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint
for murder, frustrated murder and direct assault upon a person in authority, as well
as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-
04-INV-10-A-00009. 30

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 Respondents likewise asserted that the Petition was incomplete for failing to
comply with the following requisites under the Rule on the Writ of Habeas Data: (a) the
manner in which the right to privacy was violated or threatened with violation and
how it affected the right to life, liberty or security of Gamboa; (b) the actions and
recourses she took to secure the data or information; and (c) the location of the files,
registers or databases, the government office, and the person in charge, in possession
or in control of the data or information. 31 They also contended that the Petition for
Writ of Habeas Data, being limited to cases of extrajudicial killings and enforced
disappearances, was not the proper remedy to address the alleged besmirching of the
reputation of Gamboa. 32
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the
Petition. 33 The trial court categorically ruled that the inclusion of Gamboa in the list of
persons maintaining PAGs, as published in the Report, constituted a violation of her
right to privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the list of
persons maintaining PAGs, [Gamboa]'s right to privacy indubitably has been
violated. The violation understandably affects her life, liberty and security
enormously. The untold misery that comes with the tag of having a PAG could
even be insurmountable. As she essentially alleged in her petition, she fears for
her security that at any time of the day the unlimited powers of respondents may
likely be exercised to further malign and destroy her reputation and to transgress
her right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise
undisputed that there was certainly intrusion into [Gamboa]'s activities. It cannot
be denied that information was gathered as basis therefor. After all,
under Administrative Order No. 275, the Zeñarosa Commission was tasked to
investigate the existence of private armies in the country, with all the powers of
an investigative body under Section 37, Chapter 9, Book I of the Administrative
Code of 1987.
xxx xxx xxx
By her inclusion in the list of persons maintaining PAGs, [Gamboa] alleged
as she accused respondents, who are public officials, of having gathered and
provided information that made the Zeñarosa Commission to include her in the
list. Obviously, it was this gathering and forwarding of information supposedly by
respondents that petitioner barks at as unlawful. . . . . 34 
EHaCID

Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition
on the ground that Gamboa failed to prove through substantial evidence that the
subject information originated from respondents, and that they forwarded this
database to the Zeñarosa Commission without the benefit of prior verification. 35 The
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 trial court also ruled that even before respondents assumed their official positions,
information on her may have already been acquired. 36 Finally, it held that the
Zeñarosa Commission, as the body tasked to gather information on PAGs and
authorized to disclose information on her, should have been impleaded as a
necessary if not a compulsory party to the Petition. 37
Gamboa then filed the instant Appeal by Certiorari dated 24 September
2010, 38 raising the following assignment of errors:
1. The trial court erred in ruling that the Zeñarosa Commission be impleaded as
either a necessary or indispensable party;
2. The trial court erred in declaring that [Gamboa] failed to present sufficient
proof to link respondents as the informant to [sic] the Zeñarosa
Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zeñarosa
Commission to [sic] the PNP as alleged by [Gamboa] is an assumption;
5. The trial court erred in making a point that respondents are distinct to PNP as
an agency. 39
On the other hand, respondents maintain the following arguments: (a) Gamboa
failed to present substantial evidence to show that her right to privacy in life, liberty or
security was violated, and (b) the trial court correctly dismissed the Petition on the
ground that she had failed to present sufficient proof showing that respondents were
the source of the report naming her as one who maintains a PAG. 40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling
the mandate to dismantle PAGs in the country should be done in accordance with due
process, such that the gathering and forwarding of unverified information on her
must be considered unlawful. 41 She also reiterates that she was able to present
sufficient evidence showing that the subject information originated from
respondents. 42
In determining whether Gamboa should be granted the privilege of the writ
of habeas data, this Court is called upon to, first, unpack the concept of the right to
privacy; second, explain the writ of habeas data  as an extraordinary remedy that seeks
to protect the right to informational privacy; and finally, contextualize the right to
privacy vis-à-vis the state interest involved in the case at bar.

The Right to Privacy

The right to privacy, as an inherent concept of liberty, has long been recognized
as a constitutional right. This Court, in  Morfe v. Mutuc, 43 thus enunciated:
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 The due process question touching on an alleged deprivation of liberty as
thus resolved goes a long way in disposing of the objections raised by plaintiff
that the provision on the periodical submission of a sworn statement of assets
and liabilities is violative of the constitutional right to privacy. There is much to be
said for this view of Justice Douglas: "Liberty in the constitutional sense must
mean more than freedom from unlawful governmental restraint; it must
include privacy as well, if it is to be a repository of freedom. The right to be let
alone is indeed the beginning of all freedom." As a matter of fact, this right to be
let alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights
and the right most valued by civilized men."
The concept of liberty would be emasculated if it does not likewise compel
respect for his personality as a unique individual whose claim to privacy and
interference demands respect. . . . . cADEIa

xxx xxx xxx

. . . [I]n the leading case of Griswold v. Connecticut, Justice Douglas, speaking
for five members of the Court, stated: "Various guarantees create zones of
privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers 'in any house' in time of peace without the
consent of the owner is another facet of that privacy. The Fourth Amendment
explicitly affirms the 'right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.' The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to create a zone of
privacy which government may not force him to surrender to his detriment. The
Ninth Amendment provides: 'The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people."
After referring to various American Supreme Court decisions, Justice Douglas
continued: "These cases bear witness that the right of privacy which presses for
recognition is a legitimate one."
xxx xxx xxx
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control of
the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government, safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which the

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 state can control. Protection of this private sector — protection, in other words, of
the dignity and integrity of the individual — has become increasingly important as
modern society has developed. All the forces of a technological age —
industrialization, urbanization, and organization — operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain
and support this enclave of private life marks the difference between a
democratic and a totalitarian society." 44 (Emphases supplied)

In Ople v. Torres, 45 this Court traced the constitutional and statutory bases of

the right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of
our Constitution. It is expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3.(1)  The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of
the Bill of Rights, viz.:
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. 
HATEDC

Sec. 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
health as may be provided by law.
xxx xxx xxx

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 Sec. 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies
for purposes not contrary to law shall not be abridged.  HSIaAT

Sec. 17. No person shall be compelled to be a witness against

himself.
Zones of privacy are likewise recognized and protected in our laws. The
Civil Code provides that "[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the privacy
of another. It also holds a public officer or employee or any private individual
liable for damages for any violation of the rights and liberties of another person,
and recognizes the privacy of letters and other private communications. The
Revised Penal Code makes a crime the violation of secrets by an officer, the
revelation of trade and industrial secrets, and trespass to dwelling. Invasion of
privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of
Bank Deposits Act and the Intellectual Property Code. The Rules of Court on
privileged communication likewise recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution, hence, it is the
burden of government to show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. . . . . 46 (Emphases supplied)

Clearly, the right to privacy is considered a fundamental right that must be

protected from intrusion or constraint. However, in  Standard Chartered Bank v. Senate
Committee on Banks, 47 this Court underscored that the right to privacy is not
absolute, viz.:
With respect to the right of privacy which petitioners claim respondent has
violated, suffice it to state that privacy is not an absolute right. While it is true that
Section 21, Article VI of the Constitution, guarantees respect for the rights of
persons affected by the legislative investigation, not every invocation of the right
to privacy should be allowed to thwart a legitimate congressional inquiry. In  Sabio
v. Gordon, we have held that the right of the people to access information on
matters of public concern generally prevails over the right to privacy of ordinary
financial transactions. In that case, we declared that the right to privacy is not
absolute where there is an overriding compelling state interest. Employing
the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no
infringement of the individual's right to privacy as the requirement to disclosure
information is for a valid purpose, in this case, to ensure that the government
agencies involved in regulating banking transactions adequately protect the public
who invest in foreign securities. Suffice it to state that this purpose constitutes a

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 reason compelling enough to proceed with the assailed legislative
investigation. 48 
ScCEIA

Therefore, when the right to privacy finds tension with a competing state
objective, the courts are required to weigh both notions. In these cases, although
considered a fundamental right, the right to privacy may nevertheless succumb to an
opposing or overriding state interest deemed legitimate and compelling.

The Writ of Habeas Data

The writ of habeas data  is an independent and summary remedy designed to

protect the image, privacy, honor, information, and freedom of information of an
individual, and to provide a forum to enforce one's right to the truth and to
informational privacy. 49 It seeks to protect a person's right to control information
regarding oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful ends. 50 It must be
emphasized that in order for the privilege of the writ to be granted, there must exist a
nexus between the right to privacy on the one hand, and the right to life, liberty or
security on the other. Section 1 of the Rule on the Writ of Habeas Data  reads:
Habeas data. — The writ of habeas data  is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual
or entity engaged in the gathering, collecting or storing of data information
regarding the person, family, home and correspondence of the aggrieved party.

The notion of informational privacy is still developing in Philippine law and

jurisprudence. Considering that even the Latin American habeas data, on which our
own Rule on the Writ of Habeas Data  is rooted, finds its origins from the European
tradition of data protection, 51 this Court can be guided by cases on the protection of
personal data decided by the European Court of Human Rights (ECHR). Of particular
note is  Leander v. Sweden, 52 in which the ECHR balanced the right of citizens to be free
from interference in their private affairs with the right of the state to protect its
national security. In this case, Torsten Leander (Leander), a Swedish citizen, worked as
a temporary replacement museum technician at the Naval Museum, which was
adjacent to a restricted military security zone. 53 He was refused employment when
the requisite personnel control resulted in an unfavorable outcome on the basis of
information in the secret police register, which was kept in accordance with the
Personnel Control Ordinance and to which he was prevented access. 54 He claimed,
among others, that this procedure of security control violated Article 8 of the
European Convention of Human Rights 55 on the right to privacy, as nothing in his

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 personal or political background would warrant his classification in the register as a
security risk. 56 SHcDAI

The ECHR ruled that the storage in the secret police register of information
relating to the private life of Leander, coupled with the refusal to allow him the
opportunity to refute the same, amounted to an interference in his right to respect for
private life. 57 However, the ECHR held that the interference was justified on the
following grounds: (a) the personnel control system had a legitimate aim, which was
the protection of national security, 58 and (b) the Personnel Control Ordinance gave
the citizens adequate indication as to the scope and the manner of exercising
discretion in the collection, recording and release of information by the
authorities. 59 The following statements of the ECHR must be emphasized:
58. The notion of necessity implies that the interference corresponds
to a pressing social need and, in particular, that it is proportionate to the
legitimate aim pursued (see, inter alia, the Gillow judgment of 24 November
1986, Series A no. 109, p. 22, § 55).
59. However, the Court recognises that the national authorities enjoy a
margin of appreciation, the scope of which will depend not only on the nature of
the legitimate aim pursued but also on the particular nature of the interference
involved. In the instant case, the interest of the respondent State in protecting
its national security must be balanced against the seriousness of the
interference with the applicant's right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting
national security, for the Contracting States to have laws granting the competent
domestic authorities power, firstly, to collect and store in registers not accessible
to the public information on persons and, secondly, to use this information when
assessing the suitability of candidates for employment in posts of importance for
national security.
Admittedly, the contested interference adversely affected Mr. Leander's
legitimate interests through the consequences it had on his possibilities of access
to certain sensitive posts within the public service. On the other hand, the right of
access to public service is not as such enshrined in the Convention (see, inter alia,
the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and,
apart from those consequences, the interference did not constitute an obstacle to
his leading a private life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation
available to the respondent State in assessing the pressing social need in the
present case, and in particular in choosing the means for achieving the legitimate
aim of protecting national security, was a wide one.
xxx xxx xxx
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 66. The fact that the information released to the military authorities
was not communicated to Mr. Leander cannot by itself warrant the
conclusion that the interference was not "necessary in a democratic society
in the interests of national security", as it is the very absence of such
communication which, at least partly, ensures the efficacy of the personnel
control procedure (see, mutatis mutandis, the above-mentioned Klass and Others
judgment, Series A no. 28, p. 27, § 58).
The Court notes, however, that various authorities consulted before the
issue of the Ordinance of 1969, including the Chancellor of Justice and the
Parliamentary Ombudsman, considered it desirable that the rule of
communication to the person concerned, as contained in section 13 of the
Ordinance, should be effectively applied in so far as it did not jeopardise the
purpose of the control (see paragraph 31 above). 
EICSDT

67. The Court, like the Commission, thus reaches the conclusion that the
safeguards contained in the Swedish personnel control system meet the
requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide
margin of appreciation available to it, the respondent State was entitled to
consider that in the present case the interests of national security prevailed
over the individual interests of the applicant (see paragraph 59 above). The
interference to which Mr. Leander was subjected cannot therefore be said
to have been disproportionate to the legitimate aim pursued. (Emphases
supplied)

Leander  illustrates how the right to informational privacy, as a specific

component of the right to privacy, may yield to an overriding legitimate state interest.
In similar fashion, the determination of whether the privilege of the writ of habeas
data, being an extraordinary remedy, may be granted in this case entails a delicate
balancing of the alleged intrusion upon the private life of Gamboa and the relevant
state interest involved.  AIcECS

The collection and forwarding of

information by the PNP vis-à-vis the
interest of the state to dismantle
private armies

The Constitution explicitly mandates the dismantling of private armies and

other armed groups not recognized by the duly constituted authority. 60 It also
provides for the establishment of one police force that is national in scope and civilian
in character, and is controlled and administered by a national police commission. 61

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 Taking into account these constitutional fiats, it is clear that the issuance of A.O.
275 articulates a legitimate state aim, which is to investigate the existence of PAGs
with the ultimate objective of dismantling them permanently.
To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with
the powers of an investigative body, including the power to summon witnesses,
administer oaths, take testimony or evidence relevant to the investigation and use
compulsory processes to produce documents, books, and records. 62 A.O. 275 likewise
authorized the Zeñarosa Commission to deputize the Armed Forces of the Philippines,
the National Bureau of Investigation, the Department of Justice, the PNP, and any
other law enforcement agency to assist the commission in the performance of its
functions. 63
Meanwhile, the PNP, as the national police force, is empowered by law to (a)
enforce all laws and ordinances relative to the protection of lives and properties; (b)
maintain peace and order and take all necessary steps to ensure public safety; and (c)
investigate and prevent crimes. 64
Pursuant to the state interest of dismantling PAGs, as well as the foregoing
powers and functions accorded to the Zeñarosa Commission and the PNP, the latter
collected information on individuals suspected of maintaining PAGs, monitored them
and counteracted their activities. 65 One of those individuals is herein petitioner
Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data
contained in the Report listing her as a PAG coddler came from the PNP. Contrary to
the ruling of the trial court, however, the forwarding of information by the PNP to
the Zeñarosa Commission was not an unlawful act that violated or threatened
her right to privacy in life, liberty or security. The PNP was rationally expected to
forward and share intelligence regarding PAGs with the body specifically created for
the purpose of investigating the existence of these notorious groups. Moreover, the
Zeñarosa Commission was explicitly authorized to deputize the police force in the
fulfillment of the former's mandate, and thus had the power to request assistance
from the latter. 
CAaSED

Following the pronouncements of the ECHR in  Leander, the fact that the PNP
released information to the Zeñarosa Commission without prior communication to
Gamboa and without affording her the opportunity to refute the same cannot be
interpreted as a violation or threat to her right to privacy since that act is an inherent
and crucial component of intelligence-gathering and investigation. Additionally,
Gamboa herself admitted that the PNP had a validation system, which was used to
update information on individuals associated with PAGs and to ensure that the data

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 mirrored the situation on the field. 66 Thus, safeguards were put in place to make sure
that the information collected maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court declines to
make any further determination as to the propriety of sharing information during
specific stages of intelligence gathering. To do otherwise would supplant the
discretion of investigative bodies in the accomplishment of their functions, resulting in
an undue encroachment on their competence. However, to accord the right to privacy
with the kind of protection established in existing law and jurisprudence, this Court
nonetheless deems it necessary to caution these investigating entities that
information-sharing must observe strict confidentiality. Intelligence gathered must be
released exclusively to the authorities empowered to receive the relevant information.
After all, inherent to the right to privacy is the freedom from "unwarranted
exploitation of one's person or from intrusion into one's private activities in such a
way as to cause humiliation to a person's ordinary sensibilities." 67
In this case, respondents admitted the existence of the Report, but emphasized
its confidential nature. That it was leaked to third parties and the media was
regrettable, even warranting reproach. But it must be stressed that Gamboa failed to
establish that respondents were responsible for this unintended disclosure. In any
event, there are other reliefs available to her to address the purported damage to her
reputation, making a resort to the extraordinary remedy of the writ of habeas
data  unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial
evidence that her inclusion in the list of individuals maintaining PAGs made her and
her supporters susceptible to harassment and to increased police surveillance. In this
regard, respondents sufficiently explained that the investigations conducted against
her were in relation to the criminal cases in which she was implicated. As public
officials, they enjoy the presumption of regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of dismantling
PAGs far outweighs the alleged intrusion on the private life of Gamboa, especially
when the collection and forwarding by the PNP of information against her was
pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data  must
be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed Decision in
Special Proc. No. 14979 dated 9 September 2010 of the Regional Trial Court, Laoag
City, Br. 13, insofar as it denies Gamboa the privilege of the writ of habeas data,
is AFFIRMED.
  (Gamboa v. Chan, G.R. No. 193636, [July 24, 2012], 691 PHIL 602-623)
|||

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Practice Court
16.) U.S. Supreme Court
Whalen v. Roe, 429 U.S. 589 (1977)

Whalen v. Roe

No. 75-839

Argued October 13, 1976

Decided February 22, 1977

429 U.S. 589

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

Responding to a concern that drugs were being diverted into unlawful channels, the New York
Legislature, in 1972, enacted a statutory scheme to correct defects in the previous law. The 1972
statute classifies potentially harmful drugs and provides that prescriptions for the category
embracing the most dangerous legitimate drugs (Schedule II) be prepared on an official form.
One copy of the form, which requires identification of the prescribing physician, dispensing
pharmacy, drug and dosage, and the patient's name, address, and age, must be filed with the
State Health Department, where pertinent data are recorded on tapes for computer processing.
All forms are retained for a five-year period under a system to safeguard their security, and are
thereafter destroyed. Public disclosure of the patient's identity is prohibited, and access to the
files is confined to a limited number of health department and investigatory personnel.
Appellees, including a group of patients regularly receiving Schedule II drugs and prescribing
doctors, brought this action challenging the constitutionality of the Schedule II patient
identification requirements. Holding that "the doctor-patient relationship is one of the zones of
privacy accorded constitutional protection" and that the Act's patient identification provisions
invaded that zone with "a needlessly broad sweep," since appellant had been unable to
demonstrate the need for those requirements, a three-judge District Court enjoined the
enforcement of the challenged provisions.

Held:

1. The patient identification requirement is a reasonable exercise of the State's broad police
powers, and the District Court's finding that the necessity for the requirement had not been
proved is not a sufficient reason for holding the statute unconstitutional. Pp. 429 U. S. 596-598.

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2. Neither the immediate nor the threatened impact of the patient identification requirement on
either the reputation or the independence of patients for whom Schedule II drugs are medically
indicated suffices to constitute an invasion of any right or liberty protected by the Fourteenth
Amendment. Pp. 429 U. S. 598-604.

(a) The possibility that a doctor or pharmacist may voluntarily

Page 429 U. S. 590

reveal information on a prescription form, which existed under prior law, is unrelated to the
computerized data bank. Pp. 429 U. S. 600-601.

(b) There is no support in the record or in the experience of the two States that the New York
program emulates for assuming that the statute's security provisions will be improperly
administered. P. 429 U. S. 601.

(c) The remote possibility that judicial supervision of the evidentiary use of particular items of
stored information will not provide adequate protection against unwarranted disclosure is not a
sufficient reason for invalidating the entire patient identification program. Pp. 429 U. S. 601-602.

(d) Though it is argued that concern about disclosure may induce patients to refuse needed
medication, the 1972 statute does not deprive the public of access to Schedule II drugs, as is
clear from the fact that about 100,000 prescriptions for such drugs were filed each month
before the District Court's injunction was entered. Pp. 429 U. S. 602-603.

3. Appellee doctors' contention that the 1972 statute impairs their right to practice medicine free
from unwarranted state interference is without merit, whether it refers to the statute's impact
on their own procedures, which is no different from the impact of the prior statute, or refers to
the patients' concern about disclosure that the Court has rejected (see 2(d), supra). P. 429 U. S.
604.

403 F. Supp. 931, reversed.

STEVENS, J., delivered the opinion for a unanimous Court. BRENNAN, J., post, p. 429 U. S. 606,
and STEWART, J., post, p. 429 U. S. 607, filed concurring opinions.

Page 429 U. S. 591

MR. JUSTICE STEVENS delivered the opinion of the Court.

The constitutional question presented is whether the State of New York may record, in a
centralized computer file, the names and addresses of all persons who have obtained,
pursuant to a doctor's prescription, certain drugs for which there is both a lawful and an
unlawful market.

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The District Court enjoined enforcement of the portions of the New York State Controlled
Substances Act of 1972 [Footnote 1] which require such recording on the ground that they
violate appellees' constitutionally protected rights of privacy. [Footnote 2] We noted probable
jurisdiction of the appeal by the Commissioner of Health, 424 U.S. 907, and now reverse.
[Footnote 3]

Many drugs have both legitimate and illegitimate uses. In response to a concern that such drugs
were being diverted into unlawful channels, in 1970, the New York Legislature created a special
commission to evaluate the State's drug control laws. [Footnote 4] The commission found the
existing laws deficient in several respects. There was no effective way to prevent the use of
stolen or revised prescriptions, to prevent unscrupulous pharmacists from repeatedly refilling
prescriptions, to prevent users from obtaining prescriptions from more than one doctor, or to
prevent doctors from overprescribing, either by authorizing an excessive amount in one
prescription or by giving one patient multiple prescriptions. [Footnote 5] In drafting new
legislation to correct such defects, the commission consulted with enforcement officials in
California and Illinois where central reporting systems were being used effectively. [Footnote 6]

The new New York statute classified potentially harmful drugs in five schedules. [Footnote 7]
Drugs, such as heroin, which are highly abused and have no recognized medical use, are in
Schedule I; they cannot be prescribed. Schedules II through V include drugs which have a
progressively lower potential for abuse, but also have a recognized medical use. Our concern is
limited to Schedule II, which includes the most dangerous of the legitimate drugs. [Footnote 8]

With an exception for emergencies, the Act requires that all prescriptions for Schedule II drugs
be prepared by the physician in triplicate on an official form. [Footnote 9] The completed form
identifies the prescribing physician; the dispensing pharmacy; the drug and dosage; and the
name, address, and age of the patient. One copy of the form is retained by the physician, the
second by the pharmacist, and the third is forwarded to the New York State Department of
Health in Albany. A prescription made on an official form may not exceed a 30-day supply, and
may not be refilled. [Footnote 10]

The District Court found that about 100,000 Schedule II prescription forms are delivered to a
receiving room at the Department of Health in Albany each month. They are sorted, coded, and
logged and then taken to another room where the data on the forms is recorded on magnetic
tapes for processing by a computer. Thereafter, the forms are returned to the receiving room to
be retained in a vault for a five-year period, and then destroyed as required by the statute.

The receiving room is surrounded by a locked wire fence and protected by an alarm system. The
computer tapes containing the prescription data are kept in a locked cabinet. When the tapes
are used, the computer is run "off-line," which means that no terminal outside of the computer
room can read or record any information. Public disclosure of the identity of patients is
expressly prohibited by the statute and by a Department of Health regulation. [Footnote 12]
Willful violation of these prohibitions is a crime punishable by up to one year in prison and a

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$2,000 fine. [Footnote 13] At the time of trial, there were 17 Department of Health employees
with access to the files; in addition, there were 24 investigators with authority to investigate
cases of overdispensing which might be identified by the computer. Twenty months after the
effective date of the Act, the computerized data had only been used in two investigations
involving alleged overuse by specific patients.

A few days before the Act became effective, this litigation was commenced by a group of
patients regularly receiving prescriptions for Schedule II drugs, by doctors who prescribe such
drugs, and by two associations of physicians. [Footnote 14] After various preliminary
proceedings, [Footnote 15] a three-judge District Court conducted a one-day trial. Appellees
offered evidence tending to prove that persons in need of treatment with Schedule II drugs will
from time to time decline such treatment because of their fear that the misuse of the
computerized data will cause them to be stigmatized as "drug addicts."

The District Court held that "the doctor-patient relationship is one of the zones of privacy
accorded constitutional protection," and that the patient identification provisions of the Act
invaded this zone with "a needlessly broad sweep," and enjoined enforcement of the provisions
of the Act which deal with the reporting of patients' names and addresses. [Footnote 17]

The District Court found that the State had been unable to demonstrate the necessity for the
patient identification requirement on the basis of its experience during the first 20 months of
administration of the new statute. There was a time when that alone would have provided a
basis for invalidating the statute. Lochner v. New York, 198 U. S. 45, involved legislation. making it
a crime for a baker to permit his employees to work more than 60 hours in a week. In an opinion
no longer regarded as authoritative, the Court held the statute unconstitutional as "an
unreasonable, unnecessary and arbitrary interference with the right of the individual to his
personal liberty. . . ." Id. at 198 U. S. 56.

The holding in Lochner has been implicitly rejected many times. [Footnote 18] State legislation
which has some effect on individual liberty or privacy may not be held unconstitutional simply
because a court finds it unnecessary, in whole or in part. [Footnote 19] For we have frequently
recognized that individual States have broad latitude in experimenting with possible solutions to
problems of vital local concern. [Footnote 20]

The New York statute challenged in this case represents a considered attempt to deal with such
a problem. It is manifestly the product of an orderly and rational legislative decision. It was
recommended by a specially appointed commission which held extensive hearings on the
proposed legislation, and drew on experience with similar programs in other States. There
surely was nothing unreasonable in the assumption that the patient identification requirement
might aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. For
the requirement could reasonably be expected to have a deterrent effect on potential violators,
as well as to aid in the detection or investigation of specific instances of apparent abuse. At the
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very least, it would seem clear that the State's vital interest in controlling the distribution of
dangerous drugs would support a decision to experiment with new techniques for control. For if
an experiment fails -- if, in this case, experience teaches that the patient identification
requirement results in the foolish expenditure of funds to acquire a mountain of useless
information -- the legislative process remains available to terminate the unwise experiment. It
follows that the legislature's enactment of the patient identification requirement was a
reasonable exercise of New York's broad police powers. The District Court's finding that the
necessity for the requirement had not been proved is not, therefore, a sufficient reason for
holding the statutory requirement unconstitutional.

II

Appellees contend that the statute invades a constitutionally protected "zone of privacy." The
cases sometimes characterized as protecting "privacy" have in fact involved at least two different
kinds of interests. [Footnote 24] One is the individual interest in avoiding disclosure of personal
matters, and another is the interest in independence in making certain kinds of important
decisions. Appellees argue that both of these interests are impaired by this statute. The mere
existence in readily available form of the information about patients' use of Schedule II drugs
creates a genuine concern that the information will become publicly known and that it will
adversely affect their reputations. This concern makes some patients reluctant to use, and some
doctors reluctant to prescribe, such drugs even when their use is medically indicated. It follows,
they argue, that the making of decisions about matters vital to the care of their health is
inevitably affected by the statute. Thus, the statute threatens to impair both their interest in the
nondisclosure of private information and also their interest in making important decisions
independently.

We are persuaded, however, that the New York program does not, on its face, pose a sufficiently
grievous threat to either interest to establish a constitutional violation.

Public disclosure of patient information can come about in three ways. Health Department
employees may violate the statute by failing, either deliberately or negligently, to maintain
proper security. A patient or a doctor may be accused of a violation and the stored data may be
offered in evidence in a judicial proceeding. Or, thirdly, a doctor, a pharmacist, or the patient
may voluntarily reveal information on a prescription form.

The third possibility existed under the prior law and is entirely unrelated to the existence of the
computerized data bank. Neither of the other two possibilities provides a proper ground for
attacking the statute as invalid on its face. There is no support in the record, or in the experience
of the two States that New York has emulated, for an assumption that the security provisions of
the statute will be administered improperly. And the remote possibility that judicial supervision
of the evidentiary use of particular items of stored information will provide inadequate
protection against unwarranted disclosures is surely not a sufficient reason for invalidating the
entire patient identification program.

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Even without public disclosure, it is, of course, true that private information must be disclosed to
the authorized employees of the New York Department of Health. Such disclosures, however,
are not significantly different from those that were required under the prior law. Nor are they
meaningfully distinguishable from a host of other unpleasant invasions of privacy that are
associated with many facets of health care. Unquestionably, some individuals' concern for their
own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless,
disclosures of private medical information to doctors, to hospital personnel, to insurance
companies, and to public health agencies are often an essential part of modern medical practice
even when the disclosure may reflect unfavorably on the character of the patient. [Footnote 29]
Requiring such disclosures to representatives of the State having responsibility for the health of
the community, does not automatically amount to an impermissible invasion of privacy.

Appellees also argue, however, that even if unwarranted disclosures do not actually occur, the
knowledge that the information is readily available in a computerized file creates a genuine
concern that causes some persons to decline needed medication. The record supports the
conclusion that some use of Schedule II drugs has been discouraged by that concern; it also is
clear, however, that about 100,000 prescriptions for such drugs were being filled each month
prior to the entry of the District Court's injunction. Clearly, therefore, the statute did not deprive
the public of access to the drugs.

Nor can it be said that any individual has been deprived of the right to decide independently,
with the advice of his physician, to acquire and to use needed medication. Although the State no
doubt could prohibit entirely the use of particular Schedule II drugs, [Footnote 30] it has not
done so. This case is therefore unlike those in which the Court held that a total prohibition of
certain conduct was an impermissible deprivation of liberty. Nor does the State require access to
these drugs to be conditioned on the consent of any state official or other third party. [Footnote
31] Within dosage limits which appellees do not challenge, the decision to prescribe, or to use, is
left entirely to the physician and the patient.

We hold that neither the immediate nor the threatened impact of the patient identification
requirements in the New York State Controlled Substances Act of 1972 on either the reputation
or the independence of patients for whom Schedule II drugs are medically indicated is sufficient
to constitute an invasion of any right or liberty protected by the Fourteenth Amendment.
[Footnote 32]

III

The appellee doctors argue separately that the statute impairs their right to practice medicine
free of unwarranted state interference. If the doctors' claim has any reference to the impact of
the 1972 statute on their own procedures, it is clearly frivolous. For even the prior statute
required the doctor to prepare a written prescription identifying the name and address of the
patient and the dosage of the prescribed drug. To the extent that their claim has reference to
the possibility that the patients' concern about disclosure may induce them to refuse needed

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medication, the doctors' claim is derivative from, and therefore no stronger than, the patients'.
[Footnote 33] Our rejection of their claim therefore disposes of the doctors' as well.

Page 429 U. S. 605

A final word about issues we have not decided. We are not unaware of the threat to privacy
implicit in the accumulation of vast amounts of personal information in computerized data
banks or other massive government files. [Footnote 34] The collection of taxes, the distribution
of welfare and social security benefits, the supervision of public health, the direction of our
Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of
great quantities of information, much of which is personal in character and potentially
embarrassing or harmful if disclosed. The right to collect and use such data for public purposes
is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted
disclosures. Recognizing that, in some circumstances, that duty arguably has its roots in the
Constitution, nevertheless New York's statutory scheme, and its implementing administrative
procedures, evidence a proper concern with, and protection of, the individual's interest in
privacy. We therefore need not, and do not, decide any question which might be presented by
the unwarranted disclosure of accumulated private data -- whether intentional or unintentional
-- or by a system that did not contain comparable security provisions. We simply hold that this
record does not establish an invasion of any right or liberty protected by the Fourteenth
Amendment.

Reversed.

[Footnote 1]

1972 N.Y.Laws, c. 878; N.Y.Pub.Health Law § 3300 et seq. (McKinney, Supp. 1971977) (hereafter
Pub.Health Law, except as indicated in n 13, infra).

[Footnote 2]

Roe v. Ingraham, 403 F. Supp. 931 (SDNY 1975). Earlier, the District Court had dismissed the
complaint for want of a substantial federal question. Roe v. Ingraham, 357 F. Supp. 1217 (1973).
The Court of Appeals reversed, holding that a substantial constitutional question was presented,
and therefore a three-judge court was required. Roe v. Ingraham, 480 F.2d 102 (CA2 1973).

[Footnote 3]

Jurisdiction is conferred by 28 U.S.C. §§ 1253, 2101(b).

[Footnote 4]

1970 N.Y.Laws, c. 474, amended by 1971 N.Y.Laws, c. 7. The Temporary State Commission to
Evaluate the Drug Laws (hereafter T.S.C.) issued two reports which, it is stipulated, constitute

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part of the legislative history of the Act. The reports are the Interim Report of the Temporary
State Commission to Evaluate the Drug Laws (State of New York, Legislative Doc. No. 10,
Jan.1972); and the Second Interim Report of the Temporary State Commission to Evaluate the
Drug Laws (Albany, N.Y. Apr. 5, 1971).

[Footnote 5]

Id. at 3-5.

[Footnote 6]

The Chairman of the T.S.C. summarized its findings:

"Law enforcement officials in both California and Illinois have been consulted in considerable
depth about the use of multiple prescriptions, since they have been using them for a
considerable period of time. They indicate to us that they are not only a useful adjunct to the
proper identification of culpable professional and unscrupulous drug abusers, but that they also
give a reliable statistical indication of the pattern of drug flow throughout their states:
information sorely needed in this state to stem the tide of diversion of lawfully manufactured
controlled substances."

Memorandum of Chester R. Hardt, App. 87a-88a.

T.S.C. Interim Report 21; T.S.C. Second Interim Report 27-44. Cal.Health & Safety Code §§ 11158,
11160, 11167 (West, 1975 and Supp. 1976); Ill.Ann.Stat., c. 562, §§ 1308, 1311, 1312(a) (Supp.
1977).

[Footnote 7]

These five schedules conform in all material aspects with the drug schedules in the Federal
Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. § 801 et seq.

[Footnote 8]

These include opium and opium derivatives, cocaine, methadone, amphetamines, and
methaqualone. Pub.Health Law § 3306. These drugs have accepted uses in the amelioration of
pain and in the treatment of epilepsy, narcolepsy, hyperkinesia, schizo-affective disorders, and
migraine headaches.

[Footnote 9]

Pub.Health Law §§ 3334, 3338. These forms are prepared and issued by the Department of
Health, numbered serially, in groups of 100 forms at $10 per group (10 cents per triplicate form).
New York State Health Department -- Official New York State Prescription, Form N77 (8/72).

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[Footnote 10]

Pub.Health Law §§ 3331-3333, 3339. The pharmacist normally forwards the prescription to
Albany after filling it. If the physician dispenses the drug himself, he must forward two copies of
the prescription to the Department of Health, § 3331(6).

[Footnote 11]

Pub.Health Law § 3370(3) , 1974 N.Y.Laws, c. 965, § 16. The physician and the pharmacist are
required to retain their copies for five years also, Pub. Health Law §§ 3331(6), 3332(4), 3333(4),
but they are not required to destroy then.

[Footnote 12]

Section 3371 of the Pub.Health Law states:

"1. No person, who has knowledge by virtue of his office of the identity of a particular patient or
research subject, a manufacturing process, a trade secret or a formula shall disclose such
knowledge, or any report or record thereof, except:"

"(a) to another person employed by the department, for purposes of executing provisions of this
article; or"

"(b) pursuant to judicial subpoena or court order in a criminal investigation or proceeding; or"

"(c) to an agency, department of government, or official board authorized to regulate, license or

otherwise supervise a person who is authorized by this article to deal in controlled substances,
or in the course of any investigation or proceeding by or before such agency, department or
board; or"

"(d) to a central registry established pursuant to this article."

"2. In the course of any proceeding where such information is disclosed, except when necessary
to effectuate the rights of a party to the proceeding, the court or presiding officer shall take such
action as is necessary to insure that such information, or record or report of such information is
not made public."

Pursuant to its statutory authority, the Department of Health has promulgated regulations in
respect of confidentiality as follows:

"No person who has knowledge by virtue of his office of the identity of a particular patient or
research subject, a manufacturing process, a trade secret or a formula shall disclose such
knowledge, or any report or record thereof, except:"

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"(a) to another person who by virtue of his office as an employee of the department is entitled to
obtain such information; or"

"(b) pursuant to judicial subpoena or court order in a criminal investigation or proceedings; or"

"(c) to an agency, department of government, or official board authorized to regulate, license or

otherwise supervise a person who is authorized by article 33 of the Public Health Law to deal in
controlled substances, or in the course of any investigation or proceeding by or before such
agency, department or board; or"

"(d) to a central registry established pursuant to article 33 of the Public Health Law."

10 N.Y.C.R.R. § 80.107 (1973).

[Footnote 13]

N.Y.Pub.Health Law § 12-b(2) (McKinney 1971).

[Footnote 14]

The physicians' associations, Empire State Physicians Guild, Inc. and the American Federation of
Physicians and Dentists, articulate no claims which are severable from the claims of the named
physicians. We therefore find it unnecessary to consider whether the organizations themselves
may have standing to maintain these suits.

[Footnote 15]

In addition to the appeal from the original dismissal of the complaint, the parties took
depositions which were made a part of the record and entered into a stipulation of facts.

[Footnote 16]

Two parents testified that they were concerned that their children would be stigmatized by the
State's central filing system. One child had been taken off his Schedule II medication because of
this concern. Three adult patients testified that they feared disclosure of their names would
result from central filing of patient identifications. One of them now obtains his drugs in another
State. The other two continue to receive Schedule II prescriptions in New York, but continue to
fear disclosure and stigmatization. Four physicians testified that the prescription system
entrenches on patients' privacy, and that each had observed a reaction of shock, fear, and
concern on the part of their patients whom they had informed of the plan. One doctor refuses to
prescribe Schedule II drugs for his patients. On the other hand, over 100,000 patients per month
have been receiving Schedule II drug prescriptions without their objections, if any, to central
filing having come to the attention of the District Court. The record shows that the provisions of

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the Act were brought to the attention of the section on psychiatry of the New York State Medical
Society (App. 166a), but that body apparently declined to support this suit.

[Footnote 17]

Pub.Health Law §§ 3331(6), 3332(2)(a), 3333(4).

[Footnote 18]

Roe v. Wade, 410 U. S. 113, 410 U. S. 117; Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 481-

482; Ferguson v. Skrupa, 372 U. S. 726, 372 U. S. 729-730; FHA v. The Darlington, Inc., 358 U. S.
84, 358 U. S. 91-92.

[Footnote 19]

"We are not concerned, however, with the wisdom, need, or appropriateness of the
legislation." Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U. S. 236, 313 U. S. 246.

[Footnote 20]

Mr. Justice Brandeis' classic statement of the proposition merits reiteration:

"To stay experimentation in things social and economic is a grave responsibility. Denial of the
right to experiment may be fraught with serious consequences to the Nation. It is one of the
happy incidents of the federal system that a single courageous State may, if its citizens choose,
serve as a laboratory; and try novel social and economic experiments without risk to the rest of
the country. This Court has the power to prevent an experiment. We may strike down the
statute which embodies it on the ground that, in our opinion, the measure is arbitrary,
capricious or unreasonable. We have power to do this, because the due process clause has been
held by the Court applicable to matters of substantive law as well as to matters of procedure.
But in the exercise of this high power, we must be ever on our guard, lest we erect our
prejudices into legal principles. If we would guide by the light of reason, we must let our minds
be bold."

New State Ice Co. v. Liebmann, 285 U. S. 262, 285 U. S. 311 (dissenting opinion) (footnote omitted).

[Footnote 21]

The absence of detected violations does not, of course, demonstrate that a statute has no
significant deterrent effect.

"From the beginning of civilized societies, legislators and judges have acted on various
unprovable assumptions. Such assumptions underlie much lawful state regulation of
commercial and business affairs. . . ."

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Paris Adult Theatre I v. Slaton, 413 U. S. 49, 413 U. S. 61 (citations omitted).

"Nothing in the Constitution prohibits a State from reaching . . . a conclusion and acting on it
legislatively simply because there is no conclusive evidence or empirical data."

Id. at 413 U. S. 63.

[Footnote 22]

"Such regulation, it can be assumed, could take a variety of valid forms." Robinson v.

California, 370 U. S. 660, 370 U. S. 664. Cf. Minnesota ex rel. Whipple v. Martinson, 256 U. S. 41, 256
U. S. 45; Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 261-262.

[Footnote 23]

As the basis for the constitutional claim, they rely on the shadows cast by a variety of provisions
in the Bill of Rights. Language in prior opinions of the Court or its individual Justices provides
support for the view that some personal rights "implicit in the concept of ordered liberty" (see
Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325, quoted in Roe v. Wade, 410 U.S. at 410 U. S. 152),
are so "fundamental" that an undefined penumbra may provide them with an independent
source of constitutional protection. In Roe v. Wade, however, after carefully reviewing those
cases, the Court expressed the opinion that the "right of privacy" is founded in the Fourteenth
Amendment's concept of personal liberty, id. at 410 U. S. 152-153.

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of

personal liberty and restrictions upon state action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to
encompass a woman's decision whether or not to terminate her pregnancy."

Id. at 410 U. S. 153 (emphasis added). See also id. at 410 U. S. 168-171 (STEWART, J.,

concurring); Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 500 (Harlan, J., concurring in
judgment).

[Footnote 24]

Professor Kurland has written:

"The concept of a constitutional right of privacy still remains largely undefined. There are at least
three facets that have been partially revealed, but their form and shape remain to be fully
ascertained. The first is the right of the individual to be free in his private affairs from
governmental surveillance and intrusion. The second is the right of an individual not to have his
private affairs made public by the government. The third is the right of an individual to be free in
action, thought, experience, and belief from governmental compulsion."

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The private I, the University of Chicago Magazine 7, 8 (autumn 1976). The first of the facets which
he describes is directly protected by the Fourth Amendment; the second and third correspond
to the two kinds of interests referred to in the text.

[Footnote 25]

In his dissent in Olmstead v. United States, 277 U. S. 438, 277 U. S. 478, Mr. Justice Brandeis
characterized "the right to be let alone" as "the right most valued by civilized men"; in Griswold v.
Connecticut, 381 U. S. 479, 381 U. S. 483, the Court said: "[T]he First Amendment has a penumbra
where privacy is protected from governmental intrusion." See also Stanley v. Georgia, 394 U. S.
557; California Bankers Assn. v. Shultz, 416 U. S. 21, 416 U. S. 79 (Douglas, J., dissenting); id. at 416
U. S. 78 (POWELL, J., concurring).

[Footnote 26]

Roe v. Wade, supra; Doe v. Bolton, 410 U. S. 179; Loving v. Virginia, 388 U. S. 1; Griswold v.

Connecticut, supra; Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S.
390; Allgeyer v. Louisiana, 165 U. S. 578. In Paul v. Davis, 424 U. S. 693, 424 U. S. 713, the Court
characterized these decisions as dealing with

"matters relating to marriage, procreation, contraception, family relationships, and childrearing

and education. In these areas, it has been held that there are limitations on the States' power to
substantively regulate conduct."

[Footnote 27]

The T.S.C.'s independent investigation of the California and Illinois central filing systems failed to
reveal a single case of invasion of a patient's privacy. T.S.C. Memorandum of Chester R. Hardt,
Chairman, Re: Triplicate Prescriptions, New York State Controlled Substances Act, effective Apr.
1, 1973 (reproduced at App. 88a).

Just last Term, in Buckley v. Valeo, 424 U. S. 1, we rejected a contention that the reporting
requirements of the Federal Election Campaign Act of 1971 violated the First Amendment rights
of those who contribute to minority parties:

"But no appellant in this case has tendered record evidence. . . . Instead, appellants primarily
rely on 'the clearly articulated fears of individuals, well experienced in the political process.'. . . At
best, they offer the testimony of several minor party officials that one or. two persons refused to
make contributions because of the possibility of disclosure. On this record, the substantial public
interest in disclosure identified by the legislative history of this Act outweighs the harm generally
alleged."

424 U.S. at 424 U. S. 71-72 (footnote omitted) Here, too, appellees urge on us "clearly articulated
fears" about the pernicious effects of disclosure. But this requires us to assume even more than

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that we refused to do in Buckley. There, the disclosures were to be made in accordance with the
statutory scheme. Appellees' disclosures could only be made if the statutory scheme
were violated as described, supra at 429 U. S. 594-595.

The fears of parents on behalf of their pre-adolescent children who are receiving amphetamines
in the treatment of hyperkinesia are doubly premature. Not only must the Act's nondisclosure
provisions be violated in order to stigmatize the children as they enter adult life, but the
provisions requiring destruction of all prescription records after five years would have to be
ignored, see n 11, supra, and accompanying text.

[Footnote 28]

The physician-patient evidentiary privilege is unknown to the common law. In States where it
exists by legislative enactment, it is subject to many exceptions and to waiver for many reasons.
C. McCormick, Evidence §§ 98, 101-104 (2d ed.1972); 8 J. Wigmore, Evidence § 2380, nn. 3, 5, 6, §§
2388-2391 (McNaughton rev. ed.1961).

[Footnote 29]

Familiar examples are statutory reporting requirements relating to venereal disease, child
abuse, injuries caused by deadly weapons, and certifications of fetal death. Last Term we upheld
the recordkeeping requirements of the Missouri abortion laws against a challenge based on the
protected interest in making the abortion decision free of governmental intrusion, Planned
Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 79-81.

[Footnote 30]

It is, of course, well settled that the State has broad police powers in regulating the
administration of drug by the health professions. Robinson v. California, 370 U.S. at 370 U. S. 664-
665; Minnesota ex rel. Whipple v. Martinson, 256 U.S. at 256 U. S. 45; Barsky v. Board of Regents, 347
U. S. 442, 347 U. S. 449.

[Footnote 31]

In Doe v. Bolton, 410 U. S. 179, for instance, the constitutionally defective statute required the
written concurrence of two state-licensed physicians, other than the patient's personal
physician, before an abortion could be performed, and the advance approval of a committee of
not less than three members of the hospital staff where the procedure was to be performed,
regardless of whether the committee members had a physician-patient relationship with the
woman concerned.

[Footnote 32]

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The Roe appellees also claim that a constitutional privacy right emanates from the Fourth
Amendment, citing language in Terry v. Ohio, 392 U. S. 1, 392 U. S. 9, at a point where it quotes
from Katz v. United States, 389 U. S. 347. But those cases involve affirmative, unannounced,
narrowly focused intrusions into individual privacy during the course of criminal investigations.
We have never carried the Fourth Amendment's interest in privacy as far as the Roe appellees
would have us. We decline to do so now.

Likewise the Patient appellees derive a right to individual anonymity from our freedom of
association cases such as Bates v. Little Rock, 361 U. S. 516, 361 U. S. 522-523, and NAACP v.
Alabama, 357 U. S. 449, 357 U. S. 462. But those cases protect "freedom of association for the
purpose of advancing ideas and airing grievances," Bates v. Little Rock, supra at 357 U. S. 523, not
anonymity in the course of medical treatment. Also, in those cases there was an uncontroverted
showing of past harm through disclosure, NAACP v. Alabama, supra at 361 U. S. 462, an element
which is absent here.

Cf. Schulman v. New York City Health & Hospitals Corp., 38 N.Y.2d 234, 342 N.E.2d 501 (1975).

[Footnote 33]

The doctors rely on two references to a physician's right to administer medical care in the
opinion in Doe v. Bolton, 410 U.S. at 410 U. S. 197-198, and 199. Nothing in that case suggests
that a doctor's right to administer medical care has any greater strength than his patient's right
to receive such care. The constitutional right vindicated in Doe was the right of a pregnant
woman to decide whether or not to bear a child without unwarranted state interference. The
statutory restrictions on the abortion procedures were invalid because they encumbered the
woman's exercise of that constitutionally protected right by placing obstacles in the path of the
doctor upon whom she was entitled to rely for advice in connection with her decision. If those
obstacles had not impacted upon the woman's freedom to make a constitutionally protected
decision, if they had merely made the physician's work more laborious or less independent
without any impact on the patient, they would not have violated the Constitution.

[Footnote 34]

Boyer, Computerized Medical Records and the Right to Privacy: The Emerging Federal Response,
25 Buffalo L.Rev. 37 (1975); Miller, Computers, Data Banks and Individual Privacy: An Overview, 4
Colum. Human Rights L.Rev. 1 (1972); A. Miller, The Assault on Privacy (1971). See also Utz v.
Cullinane, 172 U.S.App.D.C. 67, 78-82, 520 F.2d 467, 478-482 (1975).

MR. JUSTICE BRENNAN, concurring.

I write only to express my understanding of the opinion of the Court, which I join.

The New York statute under attack requires doctors to disclose to the State information about
prescriptions for certain drugs with a high potential for abuse, and provides for the storage of
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that information in a central computer file. The Court recognizes that an individual's "interest in
avoiding disclosure of personal matters" is an aspect of the right of privacy, ante at 429 U. S. 598-
600, and nn. 24-25, but holds that in this case, any such interest has not been seriously enough
invaded by the State to require a showing that its program was indispensable to the State's
effort to control drug abuse.

The information disclosed by the physician under this program is made available only to a small
number of public health officials with a legitimate interest in the information. As the record
makes clear, New York has long required doctors to make this information available to its
officials on request, and that practice is not challenged here. Such limited reporting
requirements in the medical field are familiar, ante at 429 U. S. 602 n. 29, and are not generally
regarded as an invasion of privacy. Broad dissemination by state officials of such information,
however, would clearly implicate constitutionally protected privacy rights, and would
presumably be justified only by compelling state interests. See, e.g., Roe v. Wade, 410 U. S.
113, 410 U. S. 155-156 (1973).

What is more troubling about this scheme, however, is the central computer storage of the data
thus collected. Obviously, as the State argues, collection and storage of data

Page 429 U. S. 607

by the State that is, in itself, legitimate is not rendered unconstitutional simply because new
technology makes the State's operations more efficient. However, as the example of the Fourth
Amendment shows, the Constitution puts limits not only on the type of information the State
may gather, but also on the means it may use to gather it. The central storage and easy
accessibility of computerized data vastly increase the potential for abuse of that information,
and I am not prepared to say that future developments will not demonstrate the necessity of
some curb on such technology.

In this case, as the Court's opinion makes clear, the State's carefully designed program includes
numerous safeguard intended to forestall the danger of indiscriminate disclosure. Given this
serious and, so far as the record shows, successful effort to prevent abuse and limit access to
the personal information at issue, I cannot say that the statute's provisions for computer
storage, on their face, amount to a deprivation of constitutionally protected privacy interests,
any more than the more traditional reporting provisions.

In the absence of such a deprivation, the State was not required to prove that the challenged
statute is absolutely necessary to its attempt to control drug abuse. Of course, a statute that did
effect such a deprivation would only be consistent with the Constitution if it were necessary to
promote a compelling state interest. Roe v. Wade, supra; Eisenstadt v. Baird, 405 U. S. 438, 405 U.
S. 464 (1972) (WHITE, J., concurring in result).

MR. JUSTICE STEWART, concurring.

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In Katz v. United States, 389 U. S. 347, the Court made clear that although the Constitution affords
protection against certain kinds of government intrusions into personal and private
matters, * there is no

"general constitutional 'right to

Page 429 U. S. 608

privacy.' . . . [T]he protection of a person's general right to privacy -- his right to be let alone by
other people -- is, like the protection of his property and of his very life, left largely to the law of
the individual States."

Id. at 389 U. S. 350-351 (footnote omitted).

MR. JUSTICE BRENNAN's concurring opinion states that

"[b]road dissemination by state officials of [the information collected by New York State] . . .
would clearly implicate constitutionally protected privacy rights. . . ."

Ante at 429 U. S. 606. The only possible support in his opinion for this statement is its earlier
reference to two footnotes in the Court's opinion, ibid., citing ante at 429 U. S. 599-600, and nn.
24-25 (majority opinion). The footnotes, however, cite to only two Court opinions, and those two
cases do not support the proposition advanced by MR. JUSTICE BRENNAN.

The first case referred to, Griswold v. Connecticut, 381 U. S. 479, held that a State cannot
constitutionally prohibit a married couple from using contraceptives in the privacy of their
home. Although the broad language of the opinion includes a discussion of privacy, see id. at 381
U. S. 484-485, the constitutional protection there discovered also related to (1) marriage, see
id. at 381 U. S. 485-486; id. at 381 U. S. 495 (Goldberg, J., concurring); id. at

Page 429 U. S. 609

381 U. S. 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman, 367 U. S. 497, 367 U. S.

522 (Harlan, J., dissenting); 381 U.S. at 381 U. S. 502-503 (WHITE, J., concurring in judgment); (2)
privacy in the home, see id. at 381 U. S. 484-485 (majority opinion); id. at 381 U. S. 495 (Goldberg,
J., concurring); id. at 381 U. S. 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman,
supra at 367 U. S. 522 (Harlan, J., dissenting); and (3) the right to use contraceptives, see 381 U.S.
at 381 U. S. 503 (WHITE, J., concurring in judgment); see also Roe v. Wade, 410 U. S. 113, 410 U. S.
169-170 (STEWART, J., concurring). Whatever the ratio decidendi of Griswold, it does not recognize
a general interest in freedom from disclosure of private information.

The other case referred to, Stanley v. Georgia, 394 U. S. 557, held that an individual cannot
constitutionally be prosecuted for possession of obscene materials in his home.
Although Stanley makes some reference to privacy rights, id. at 394 U. S. 564, the holding there

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was simply that the First Amendment -- as made applicable to the States by the Fourteenth --
protects a person's right to read what he chooses in circumstances where that choice poses no
threat to the sensibilities or welfare of others, id. at 394 U. S. 565-568.

Upon the understanding that nothing the Court says today is contrary to the above views, I join
its opinion and judgment.

* See 389 U.S. at 389 U. S. 350 n. 5:

"The First Amendment, for example, imposes limitation upon governmental abridgment of
'freedom to associate and privacy in one's association."

NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462. The Third Amendment's prohibition against the
unconsented peacetime quartering of soldiers protects another aspect of privacy from
governmental intrusion. To some extent, the Fifth Amendment too "reflects the Constitution's
concern for . . . . . . the right of each individual "to a private enclave where he may lead a private
life.'"  Tehan v. Shott,  382 U. S. 406,  382 U. S. 416. Virtually every governmental action interferes with
personal privacy to some degree. The question in each case is whether that interference violates a
command of the United States Constitution.

As the Court note, ante at 429 U. S. 599-600, and n. 26, there is also a line of authority, often
characterized as involving "privacy," affording constitutional protection to the autonomy of an
individual or a family unit in making decisions generally relating to marriage, procreation, and
raising children.

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 17.) [G.R. No. 174629. February 14, 2008.]

REPUBLIC OF THE PHILIPPINES, Represented by THE ANTI-MONEY

LAUNDERING COUNCIL (AMLC),  petitioner, vs. HON. ANTONIO
M. EUGENIO, JR., AS PRESIDING JUDGE OF RTC, MANILA, BRANCH 34,
PANTALEON ALVAREZ and LILIA CHENG,  respondents.

DECISION

TINGA,  J  :p

The present petition for certiorari and prohibition under Rule 65 assails the

orders and resolutions issued by two different courts in two different cases. The
courts and cases in question are the Regional Trial Court of Manila, Branch 24, which
heard SP Case No. 06-114200 1 and the Court of Appeals, Tenth Division, which
heared CA-G.R. SP No. 95198. 2 Both cases arose as part of the aftermath of the ruling
of this Court in  Agan v. PIATCO 3 nullifying the concession agreement awarded to the
Philippine International Airport Terminal Corporation (PIATCO) over the Ninoy Aquino
International Airport — International Passenger Terminal 3 (NAIA 3) Project.

I.

Following the promulgation of  Agan, a series of investigations concerning the

award of the NAIA 3 contracts to PIATCO were undertaken by the Ombudsman and
the Compliance and Investigation Staff (CIS) of petitioner Anti-Money Laundering
Council (AMLC). On 24 May 2005, the Office of the Solicitor General (OSG) wrote the
AMLC requesting the latter's assistance "in obtaining more evidence to completely
reveal the financial trail of corruption surrounding the [NAIA 3] Project," and also
noting that petitioner Republic of the Philippines was presently defending itself in two
international arbitration cases filed in relation to the NAIA 3 Project. 4 The CIS
conducted an intelligence database search on the financial transactions of certain
individuals involved in the award, including respondent Pantaleon Alvarez (Alvarez)
who had been the Chairman of the PBAC Technical Committee, NAIA-IPT3 Project. 5 By
this time, Alvarez had already been charged by the Ombudsman with violation of
Section 3 (j) of R.A. No. 3019. 6 The search revealed that Alvarez maintained eight (8)
bank accounts with six (6) different banks. 7
On 27 June 2005, the AMLC issued Resolution No. 75, Series of 2005, 8 whereby
the Council resolved to authorize the Executive Director of the AMLC "to sign and

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 verify an application to inquire into and/or examine the [deposits] or investments of
Pantaleon Alvarez, Wilfredo Trinidad, Alfredo Liongson, and Cheng Yong, and their
related web of accounts wherever these may be found, as defined under Rule 10.4 of
the Revised Implementing Rules and Regulations;" and to authorize the AMLC
Secretariat "to conduct an inquiry into subject accounts once the Regional Trial Court
grants the application to inquire into and/or examine the bank accounts" of those
four individuals. 9 The resolution enumerated the particular bank accounts of Alvarez,
Wilfredo Trinidad (Trinidad), Alfredo Liongson (Liongson) and Cheng Yong which were
to be the subject of the inquiry. 10 The rationale for the said resolution was founded
on the cited findings of the CIS that amounts were transferred from a Hong Kong
bank account owned by Jetstream Pacific Ltd. Account to bank accounts in the
Philippines maintained by Liongson and Cheng Yong. 11 The Resolution also noted
that "[b]y awarding the contract to PIATCO despite its lack of financial capacity,
Pantaleon Alvarez caused undue injury to the government by giving PIATCO
unwarranted benefits, advantage, or preference in the discharge of his official
administrative functions through manifest partiality, evident bad faith, or gross
inexcusable negligence, in violation of Section 3 (e) of Republic Act No. 3019." 12
Under the authority granted by the Resolution, the AMLC filed an (ex-parte)
application to inquire into or examine the deposits or investments of Alvarez,
Trinidad, Liongson and Cheng Yong before the RTC of Makati, Branch 138, presided by
Judge (now Court of Appeals Justice) Sixto Marella, Jr. The application was docketed as
AMLC No. 05-005. 13 The Makati RTC heard the testimony of the Deputy Director of
the AMLC, Richard David C. Funk II, and received the documentary evidence of the
AMLC. 14 Thereafter, on 4 July 2005, the Makati RTC rendered an Order (Makati RTC
bank inquiry order) granting the AMLC the authority to inquire and examine the
subject bank accounts of Alvarez, Trinidad, Liongson and Cheng Yong, the trial court
being satisfied that there existed "[p]robable cause [to] believe that the deposits in
various bank accounts, details of which appear in paragraph 1 of the Application, are
related to the offense of violation of Anti-Graft and Corrupt Practices Act now the
subject of criminal prosecution before the Sandiganbayan as attested to by the
Informations, Exhibits C, D, E, F, and G." 15 Pursuant to the Makati RTC bank inquiry
order, the CIS proceeded to inquire and examine the deposits, investments and
related web accounts of the four. 16
Meanwhile, the Special Prosecutor of the Office of the Ombudsman, Dennis
Villa-Ignacio, wrote a letter dated 2 November 2005, requesting the AMLC to
investigate the accounts of Alvarez, PIATCO, and several other entities involved in the
nullified contract. The letter adverted to probable cause to believe that the bank
accounts "were used in the commission of unlawful activities that were committed" in
relation to the criminal cases then pending before the Sandiganbayan. 17 Attached to
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 the letter was a memorandum "on why the investigation of the [accounts] is
necessary in the prosecution of the above criminal cases before the
Sandiganbayan." 18
In response to the letter of the Special Prosecutor, the AMLC promulgated on 9
December 2005 Resolution No. 121 Series of 2005, 19 which authorized the executive
director of the AMLC to inquire into and examine the accounts named in the letter,
including one maintained by Alvarez with DBS Bank and two other accounts in the
name of Cheng Yong with Metrobank. The Resolution characterized the
memorandum attached to the Special Prosecutor's letter as "extensively justif[ying]
the existence of probable cause that the bank accounts of the persons and entities
mentioned in the letter are related to the unlawful activity of violation of Sections 3 (g)
and 3 (e) of Rep. Act No. 3019, as amended." 20
Following the December 2005 AMLC Resolution, the Republic, through the
AMLC, filed an application 21 before the Manila RTC to inquire into and/or examine
thirteen (13) accounts and two (2) related web of accounts alleged as having been
used to facilitate corruption in the NAIA 3 Project. Among said accounts were the DBS
Bank account of Alvarez and the Metrobank accounts of Cheng Yong. The case was
raffled to Manila RTC, Branch 24, presided by respondent Judge Antonio Eugenio, Jr.,
and docketed as SP Case No. 06-114200.
On 12 January 2006, the Manila RTC issued an Order (Manila RTC bank inquiry
order) granting the Ex Parte Application expressing therein "[that] the allegations in
said application to be impressed with merit, and in conformity with Section 11 of R.A.
No. 9160, as amended, otherwise known as the Anti-Money Laundering Act (AMLA) of
2001 and Rules 11.1 and 11.2 of the Revised Implementing Rules and
Regulations." 22 Authority was thus granted to the AMLC to inquire into the bank
accounts listed therein.
On 25 January 2006, Alvarez, through counsel, entered his appearance 23 before
the Manila RTC in SP Case No. 06-114200 and filed an Urgent Motion to Stay
Enforcement of Order of January 12, 2006. 24 Alvarez alleged that he fortuitously
learned of the bank inquiry order, which was issued following an ex parte application,
and he argued that nothing in R.A. No. 9160 authorized the AMLC to seek the
authority to inquire into bank accounts ex parte. 25 The day after Alvarez filed his
motion, 26 January 2006, the Manila RTC issued an Order 26 staying the enforcement
of its bank inquiry order and giving the Republic five (5) days to respond to Alvarez's
motion.
The Republic filed an Omnibus Motion for Reconsideration 27 of the 26 January
2006 Manila RTC Order and likewise sought to strike out Alvarez's motion that led to
the issuance of said order. For his part, Alvarez filed a Reply and Motion to
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 Dismiss 28 the application for bank inquiry order. On 2 May 2006, the Manila RTC
issued an Omnibus Order 29 granting the Republic's Motion for Reconsideration,
denying Alvarez's motion to dismiss and reinstating "in full force and effect" the Order
dated 12 January 2006. In the omnibus order, the Manila RTC reiterated that the
material allegations in the application for bank inquiry order filed by the Republic
stood as "the probable cause for the investigation and examination of the bank
accounts and investments of the respondents." 30
Alvarez filed on 10 May 2006 an Urgent Motion 31 expressing his apprehension
that the AMLC would immediately enforce the omnibus order and would thereby
render the motion for reconsideration he intended to file as moot and academic; thus
he sought that the Republic be refrained from enforcing the omnibus order in the
meantime. Acting on this motion, the Manila RTC, on 11 May 2006, issued an
Order 32 requiring the OSG to file a comment/opposition and reminding the parties
that judgments and orders become final and executory upon the expiration of fifteen
(15) days from receipt thereof, as it is the period within which a motion for
reconsideration could be filed. Alvarez filed his Motion for Reconsideration 33 of the
omnibus order on 15 May 2006, but the motion was denied by the Manila RTC in an
Order 34 dated 5 July 2006.
On 11 July 2006, Alvarez filed an Urgent Motion and Manifestation 35 wherein he
manifested having received reliable information that the AMLC was about to
implement the Manila RTC bank inquiry order even though he was intending to
appeal from it. On the premise that only a final and executory judgment or order
could be executed or implemented, Alvarez sought that the AMLC be immediately
ordered to refrain from enforcing the Manila RTC bank inquiry order.
On 12 July 2006, the Manila RTC, acting on Alvarez's latest motion, issued an
Order 36 directing the AMLC "to refrain from enforcing the order dated January 12,
2006 until the expiration of the period to appeal, without any appeal having been
filed." On the same day, Alvarez filed a Notice of Appeal 37 with the Manila RTC.
On 24 July 2006, Alvarez filed an Urgent  Ex Parte Motion for
Clarification. 38 Therein, he alleged having learned that the AMLC had began to inquire
into the bank accounts of the other persons mentioned in the application for bank
inquiry order filed by the Republic. 39 Considering that the Manila RTC bank inquiry
order was issued ex parte, without notice to those other persons, Alvarez prayed that
the AMLC be ordered to refrain from inquiring into any of the other bank deposits and
alleged web of accounts enumerated in AMLC's application with the RTC; and that the
AMLC be directed to refrain from using, disclosing or publishing in any proceeding or
venue any information or document obtained in violation of the 11 May 2006 RTC
Order. 40
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 On 25 July 2006, or one day after Alvarez filed his motion, the Manila RTC issued
an Order 41 wherein it clarified that "the  Ex Parte Order of this Court dated January 12,
2006 can not be implemented against the deposits or accounts of any of the persons
enumerated in the AMLC Application until the appeal of movant Alvarez is finally
resolved, otherwise, the appeal would be rendered moot and academic or even
nugatory." 42 In addition, the AMLC was ordered "not to disclose or publish any
information or document found or obtained in [v]iolation of the May 11, 2006 Order
of this Court." 43 The Manila RTC reasoned that the other persons mentioned in
AMLC's application were not served with the court's 12 January 2006 Order. This 25
July 2006 Manila RTC Order is the first of the four rulings being assailed through this
petition.
In response, the Republic filed an Urgent Omnibus Motion for
Reconsideration 44 dated 27 July 2006, urging that it be allowed to immediately
enforce the bank inquiry order against Alvarez and that Alvarez's notice of appeal be
expunged from the records since appeal from an order of inquiry is disallowed under
the Anti money Laundering Act (AMLA).
Meanwhile, respondent Lilia Cheng filed with the Court of Appeals a Petition
for Certiorari, Prohibition and  Mandamus  with Application for TRO and/or Writ of
Preliminary Injunction 45 dated 10 July 2006, directed against the Republic of the
Philippines through the AMLC, Manila RTC Judge Eugenio, Jr. and Makati RTC Judge
Marella, Jr.. She identified herself as the wife of Cheng Yong 46 with whom she jointly
owns a conjugal bank account with Citibank that is covered by the Makati RTC bank
inquiry order, and two conjugal bank accounts with Metrobank that are covered by
the Manila RTC bank inquiry order. Lilia Cheng imputed grave abuse of discretion on
the part of the Makati and Manila RTCs in granting AMLC's  ex parte  applications for a
bank inquiry order, arguing among others that the  ex parte  applications violated her
constitutional right to due process, that the bank inquiry order under the AMLA can
only be granted in connection with violations of the AMLA and that the AMLA can not
apply to bank accounts opened and transactions entered into prior to the effectivity of
the AMLA or to bank accounts located outside the Philippines. 47
On 1 August 2006, the Court of Appeals, acting on Lilia Cheng's petition, issued a
Temporary Restraining Order 48 enjoining the Manila and Makati trial courts from
implementing, enforcing or executing the respective bank inquiry orders previously
issued, and the AMLC from enforcing and implementing such orders. On even date,
the Manila RTC issued an Order 49 resolving to hold in abeyance the resolution of the
urgent omnibus motion for reconsideration then pending before it until the resolution
of Lilia Cheng's petition for  certiorari  with the Court of Appeals. The Court of Appeals

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 Resolution directing the issuance of the temporary restraining order is the second of
the four rulings assailed in the present petition.
The third assailed ruling 50 was issued on 15 August 2006 by the Manila RTC,
acting on the Urgent Motion for Clarification 51 dated 14 August 2006 filed by Alvarez.
It appears that the 1 August 2006 Manila RTC Order had amended its previous 25 July
2006 Order by deleting the last paragraph which stated that the AMLC "should not
disclose or publish any information or document found or obtained in violation of the
May 11, 2006 Order of this Court." 52 In this new motion, Alvarez argued that the
deletion of that paragraph would allow the AMLC to implement the bank inquiry
orders and publish whatever information it might obtain thereupon even before the
final orders of the Manila RTC could become final and executory. 53 In the 15 August
2006 Order, the Manila RTC reiterated that the bank inquiry order it had issued could
not be implemented or enforced by the AMLC or any of its representatives until the
appeal therefrom was finally resolved and that any enforcement thereof would be
unauthorized. 54
The present Consolidated Petition 55 for  certiorari  and prohibition under Rule 65
was filed on 2 October 2006, assailing the two Orders of the Manila RTC dated 25 July
and 15 August 2006 and the Temporary Restraining Order dated 1 August 2006 of the
Court of Appeals. Through an Urgent Manifestation and Motion 56 dated 9 October
2006, petitioner informed the Court that on 22 September 2006, the Court of Appeals
hearing Lilia Cheng's petition had granted a writ of preliminary injunction in her
favor. 57 Thereafter, petitioner sought as well the nullification of the 22 September
2006 Resolution of the Court of Appeals, thereby constituting the fourth ruling
assailed in the instant petition. 58
The Court had initially granted a Temporary Restraining Order 59 dated 6
October 2006 and later on a Supplemental Temporary Restraining Order 60 dated 13
October 2006 in petitioner's favor, enjoining the implementation of the assailed
rulings of the Manila RTC and the Court of Appeals. However, on respondents' motion,
the Court, through a Resolution 61 dated 11 December 2006, suspended the
implementation of the restraining orders it had earlier issued.
Oral arguments were held on 17 January 2007. The Court consolidated the
issues for argument as follows:
1. Did the RTC-Manila, in issuing the Orders dated 25 July 2006 and 15
August 2006 which deferred the implementation of its Order dated 12 January
2006, and the Court of Appeals, in issuing its Resolution dated 1 August 2006,
which ordered the  status quo  in relation to the 1 July 2005 Order of the RTC-
Makati and the 12 January 2006 Order of the RTC-Manila, both of which

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 authorized the examination of bank accounts under Section 11 of Rep. Act No.
9160 (AMLA), commit grave abuse of discretion?
(a) Is an application for an order authorizing inquiry into or
examination of bank accounts or investments under Section 11 of
the AMLA  ex-parte  in nature or one which requires notice and
hearing?
(b) What legal procedures and standards should be observed in the
conduct of the proceedings for the issuance of said order?
(c) Is such order susceptible to legal challenges and judicial review?
2. Is it proper for this Court at this time and in this case to inquire into and
pass upon the validity of the 1 July 2005 Order of the RTC-Makati and the 12
January 2006 Order of the RTC-Manila, considering the pendency of CA G.R. SP
No. 95-198 (Lilia Cheng v. Republic) wherein the validity of both orders was
challenged? 62

After the oral arguments, the parties were directed to file their respective
memoranda, which they did, 63 and the petition was thereafter deemed submitted for
resolution.

II.

Petitioner's general advocacy is that the bank inquiry orders issued by the
Manila and Makati RTCs are valid and immediately enforceable whereas the assailed
rulings, which effectively stayed the enforcement of the Manila and Makati RTCs bank
inquiry orders, are sullied with grave abuse of discretion. These conclusions flow from
the posture that a bank inquiry order, issued upon a finding of probable cause, may
be issued  ex parte  and, once issued, is immediately executory. Petitioner further
argues that the information obtained following the bank inquiry is necessarily
beneficial, if not indispensable, to the AMLC in discharging its awesome responsibility
regarding the effective implementation of the AMLA and that any restraint in the
disclosure of such information to appropriate agencies or other judicial fora would
render meaningless the relief supplied by the bank inquiry order.
Petitioner raises particular arguments questioning Lilia Cheng's right to seek
injunctive relief before the Court of Appeals, noting that not one of the bank inquiry
orders is directed against her. Her "cryptic assertion" that she is the wife of Cheng
Yong cannot, according to petitioner, "metamorphose into the requisite legal standing
to seek redress for an imagined injury or to maintain an action in behalf of another."
In the same breath, petitioner argues that Alvarez cannot assert any violation of the
right to financial privacy in behalf of other persons whose bank accounts are being

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 inquired into, particularly those other persons named in the Makati RTC bank inquiry
order who did not take any step to oppose such orders before the courts.
Ostensibly, the proximate question before the Court is whether a bank inquiry
order issued in accordance with Section 10 of the AMLA may be stayed by injunction.
Yet in arguing that it does, petitioner relies on what it posits as the final and
immediately executory character of the bank inquiry orders issued by the Manila and
Makati RTCs. Implicit in that position is the notion that the inquiry orders are valid,
and such notion is susceptible to review and validation based on what appears on the
face of the orders and the applications which triggered their issuance, as well as the
provisions of the AMLA governing the issuance of such orders. Indeed, to test the
viability of petitioner's argument, the Court will have to be satisfied that the subject
inquiry orders are valid in the first place. However, even from a cursory examination
of the applications for inquiry order and the orders themselves, it is evident that the
orders are inconsistent with the AMLA and the Constitution.

III.

A brief overview of the AMLA is called for.

Money laundering has been generally defined by the International Criminal
Police Organization (Interpol) as "any act or attempted act to conceal or disguise the
identity of illegally obtained proceeds so that they appear to have originated from
legitimate sources." 64 Even before the passage of the AMLA, the problem was
addressed by the Philippine government through the issuance of various circulars by
the Bangko Sentral ng Pilipinas. Yet ultimately, legislative proscription was necessary,
especially with the inclusion of the Philippines in the Financial Action Task Force's list
of non-cooperative countries and territories in the fight against money
laundering. 65 The original AMLA, Republic Act (R.A.) No. 9160, was passed in 2001. It
was amended by R.A. No. 9194 in 2003.
Section 4 of the AMLA states that "[m]oney laundering is a crime whereby the
proceeds of an unlawful activity as [defined in the law] are transacted, thereby making
them appear to have originated from legitimate sources." 66 The section further
provides the three modes through which the crime of money laundering is
committed. Section 7 creates the AMLC and defines its powers, which generally relate
to the enforcement of the AMLA provisions and the initiation of legal actions
authorized in the AMLA such as civil forefeiture proceedings and complaints for the
prosecution of money laundering offenses. 67
In addition to providing for the definition and penalties for the crime of money
laundering, the AMLA also authorizes certain provisional remedies that would aid the

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 AMLC in the enforcement of the AMLA. These are the "freeze order" authorized under
Section 10, and the "bank inquiry order" authorized under Section 11.
Respondents posit that a bank inquiry order under Section 11 may be obtained
only upon the pre-existence of a money laundering offense case already filed before
the courts. 68 The conclusion is based on the phrase "upon order of any competent
court in cases of violation of this Act," the word "cases" generally understood as
referring to actual cases pending with the courts.
We are unconvinced by this proposition, and agree instead with the then
Solicitor General who conceded that the use of the phrase "in cases of" was
unfortunate, yet submitted that it should be interpreted to mean "in the event there
are violations" of the AMLA, and not that there are already cases pending in court
concerning such violations. 69 If the contrary position is adopted, then the bank
inquiry order would be limited in purpose as a tool in aid of litigation of live cases, and
wholly inutile as a means for the government to ascertain whether there is sufficient
evidence to sustain an intended prosecution of the account holder for violation of
the AMLA. Should that be the situation, in all likelihood the AMLC would be virtually
deprived of its character as a discovery tool, and thus would become less circumspect
in filing complaints against suspect account holders. After all, under such set-up the
preferred strategy would be to allow or even encourage the indiscriminate filing of
complaints under the AMLA with the hope or expectation that the evidence of money
laundering would somehow surface during the trial. Since the AMLC could not make
use of the bank inquiry order to determine whether there is evidentiary basis to
prosecute the suspected malefactors, not filing any case at all would not be an
alternative. Such unwholesome set-up should not come to pass. Thus Section 11
cannot be interpreted in a way that would emasculate the remedy it has established
and encourage the unfounded initiation of complaints for money laundering.
Still, even if the bank inquiry order may be availed of without need of a pre-
existing case under the AMLA, it does not follow that such order may be availed of  ex
parte. There are several reasons why the AMLA does not generally sanction  ex
parte  applications and issuances of the bank inquiry order.

IV.

It is evident that Section 11 does not specifically authorize, as a general rule, the
issuance  ex parte  of the bank inquiry order. We quote the provision in full:
SEC. 11.  Authority to Inquire into Bank Deposits. — Notwithstanding the
provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as
amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or
examine any particular deposit or investment with any banking institution or non
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 bank financial institution upon order of any competent court in cases of violation
of this Act, when it has been established that there is probable cause that
the deposits or investments are related to an unlawful activity as defined in
Section 3(i) hereof or a money laundering offense under Section 4 hereof,
except that no court order shall be required in cases involving unlawful
activities defined in Sections 3(i)1, (2) and (12).
To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP)
may inquire into or examine any deposit of investment with any banking
institution or non bank financial institution when the examination is made in the
course of a periodic or special examination, in accordance with the rules of
examination of the BSP. 70 (Emphasis supplied)

Of course, Section 11 also allows the AMLC to inquire into bank accounts
without having to obtain a judicial order in cases where there is probable cause that
the deposits or investments are related to kidnapping for ransom, 71 certain violations
of the Comprehensive Dangerous Drugs Act of 2002, 72 hijacking and other violations
under R.A. No. 6235, destructive arson and murder. Since such special circumstances
do not apply in this case, there is no need for us to pass comment on this proviso.
Suffice it to say, the proviso contemplates a situation distinct from that which
presently confronts us, and for purposes of the succeeding discussion, our reference
to Section 11 of the AMLA excludes said proviso.
In the instances where a court order is required for the issuance of the bank
inquiry order, nothing in Section 11 specifically authorizes that such court order may
be issued  ex parte. It might be argued that this silence does not preclude the  ex
parte  issuance of the bank inquiry order since the same is not prohibited under
Section 11. Yet this argument falls when the immediately preceding provision, Section
10, is examined.
SEC. 10.  Freezing of Monetary Instrument or Property. — The Court of
Appeals, upon application ex parte by the AMLC and after determination
that probable cause exists that any monetary instrument or property is in any
way related to an unlawful activity as defined in Section 3(i) hereof, may issue
a freeze order which shall be effective immediately. The freeze order shall be
for a period of twenty (20) days unless extended by the court. 73

Although oriented towards different purposes, the freeze order under Section
10 and the bank inquiry order under Section 11 are similar in that they are
extraordinary provisional reliefs which the AMLC may avail of to effectively combat
and prosecute money laundering offenses. Crucially, Section 10 uses specific language
to authorize an  ex parte  application for the provisional relief therein, a circumstance
absent in Section 11. If indeed the legislature had intended to authorize  ex

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 parte  proceedings for the issuance of the bank inquiry order, then it could have easily
expressed such intent in the law, as it did with the freeze order under Section 10.
Even more tellingly, the current language of Sections 10 and 11 of the AMLA was
crafted at the same time, through the passage of R.A. No. 9194. Prior to the
amendatory law, it was the AMLC, not the Court of Appeals, which had authority to
issue a freeze order, whereas a bank inquiry order always then required, without
exception, an order from a competent court. 74 It was through the same enactment
that  ex parte  proceedings were introduced for the first time into the AMLA, in the case
of the freeze order which now can only be issued by the Court of Appeals. It certainly
would have been convenient, through the same amendatory law, to allow a similar  ex
parte  procedure in the case of a bank inquiry order had Congress been so minded.
Yet nothing in the provision itself, or even the available legislative record, explicitly
points to an  ex parte  judicial procedure in the application for a bank inquiry order,
unlike in the case of the freeze order.
That the AMLA does not contemplate  ex parte  proceedings in applications for
bank inquiry orders is confirmed by the present implementing rules and regulations
of the AMLA, promulgated upon the passage of R.A. No. 9194. With respect to freeze
orders under Section 10, the implementing rules do expressly provide that the
applications for freeze orders be filed  ex parte, 75 but no similar clearance is granted in
the case of inquiry orders under Section 11. 76 These implementing rules were
promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission and the
Securities and Exchange Commission, 77 and if it was the true belief of these
institutions that inquiry orders could be issued  ex parte  similar to freeze orders,
language to that effect would have been incorporated in the said Rules. This is
stressed not because the implementing rules could authorize  ex parte  applications for
inquiry orders despite the absence of statutory basis, but rather because the framers
of the law had no intention to allow such  ex parte  applications.
Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC 78 to
enforce the provisions of the AMLA specifically authorize ex parte applications with
respect to freeze orders under Section 10 79 but make no similar authorization with
respect to bank inquiry orders under Section 11.
The Court could divine the sense in allowing ex parte proceedings under Section
10 and in proscribing the same under Section 11. A freeze order under Section 10 on
the one hand is aimed at preserving monetary instruments or property in any way
deemed related to unlawful activities as defined in Section 3 (i) of the AMLA. The
owner of such monetary instruments or property would thus be inhibited from
utilizing the same for the duration of the freeze order. To make such freeze order

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 anteceded by a judicial proceeding with notice to the account holder would allow for
or lead to the dissipation of such funds even before the order could be issued.
On the other hand, a bank inquiry order under Section 11 does not necessitate
any form of physical seizure of property of the account holder. What the bank inquiry
order authorizes is the examination of the particular deposits or investments in
banking institutions or non-bank financial institutions. The monetary instruments or
property deposited with such banks or financial institutions are not seized in a
physical sense, but are examined on particular details such as the account holder's
record of deposits and transactions. Unlike the assets subject of the freeze order, the
records to be inspected under a bank inquiry order cannot be physically seized or
hidden by the account holder. Said records are in the possession of the bank and
therefore cannot be destroyed at the instance of the account holder alone as that
would require the extraordinary cooperation and devotion of the bank.
Interestingly, petitioner's memorandum does not attempt to demonstrate
before the Court that the bank inquiry order under Section 11 may be issued ex parte,
although the petition itself did devote some space for that argument. The petition
argues that the bank inquiry order is "a special and peculiar remedy, drastic in its
name, and made necessary because of a public necessity . . . [t]hus, by its very nature,
the application for an order or inquiry must necessarily, be ex parte." This argument is
insufficient justification in light of the clear disinclination of Congress to allow the
issuance ex parte of bank inquiry orders under Section 11, in contrast to the
legislature's clear inclination to allow the ex parte grant of freeze orders under Section
10.
Without doubt, a requirement that the application for a bank inquiry order be
done with notice to the account holder will alert the latter that there is a plan to
inspect his bank account on the belief that the funds therein are involved in an
unlawful activity or money laundering offense. 80 Still, the account holder so alerted
will in fact be unable to do anything to conceal or cleanse his bank account records of
suspicious or anomalous transactions, at least not without the whole-hearted
cooperation of the bank, which inherently has no vested interest to aid the account
holder in such manner.

V.

The necessary implication of this finding that Section 11 of the AMLA does not

generally authorize the issuance ex parte of the bank inquiry order would be that such
orders cannot be issued unless notice is given to the owners of the account, allowing
them the opportunity to contest the issuance of the order. Without such a
consequence, the legislated distinction between ex parte proceedings under Section
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 10 and those which are not ex parte under Section 11 would be lost and rendered
useless.
There certainly is fertile ground to contest the issuance of an ex parte order.
Section 11 itself requires that it be established that "there is probable cause that the
deposits or investments are related to unlawful activities," and it obviously is the court
which stands as arbiter whether there is indeed such probable cause. The process of
inquiring into the existence of probable cause would involve the function of
determination reposed on the trial court. Determination clearly implies a function of
adjudication on the part of the trial court, and not a mechanical application of a
standard pre-determination by some other body. The word "determination" implies
deliberation and is, in normal legal contemplation, equivalent to "the decision of a
court of justice." 81
The court receiving the application for inquiry order cannot simply take the
AMLC's word that probable cause exists that the deposits or investments are related
to an unlawful activity. It will have to exercise its own determinative function in order
to be convinced of such fact. The account holder would be certainly capable of
contesting such probable cause if given the opportunity to be apprised of the pending
application to inquire into his account; hence a notice requirement would not be an
empty spectacle. It may be so that the process of obtaining the inquiry order may
become more cumbersome or prolonged because of the notice requirement, yet we
fail to see any unreasonable burden cast by such circumstance. After all, as earlier
stated, requiring notice to the account holder should not, in any way, compromise the
integrity of the bank records subject of the inquiry which remain in the possession
and control of the bank.
Petitioner argues that a bank inquiry order necessitates a finding of probable
cause, a characteristic similar to a search warrant which is applied to and heard ex
parte. We have examined the supposed analogy between a search warrant and a bank
inquiry order yet we remain to be unconvinced by petitioner.
The Constitution and the Rules of Court prescribe particular requirements
attaching to search warrants that are not imposed by the AMLA with respect to bank
inquiry orders. A constitutional warrant requires that the judge personally examine
under oath or affirmation the complainant and the witnesses he may produce, 82 such
examination being in the form of searching questions and answers. 83 Those are
impositions which the legislative did not specifically prescribe as to the bank inquiry
order under the AMLA, and we cannot find sufficient legal basis to apply them to
Section 11 of the AMLA. Simply put, a bank inquiry order is not a search warrant or
warrant of arrest as it contemplates a direct object but not the seizure of persons or
property.
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 Even as the Constitution and the Rules of Court impose a high procedural
standard for the determination of probable cause for the issuance of search warrants
which Congress chose not to prescribe for the bank inquiry order under the AMLA,
Congress nonetheless disallowed ex parte applications for the inquiry order. We can
discern that in exchange for these procedural standards normally applied to search
warrants, Congress chose instead to legislate a right to notice and a right to be heard
— characteristics of judicial proceedings which are not ex parte. Absent any
demonstrable constitutional infirmity, there is no reason for us to dispute such
legislative policy choices.

VI.

The Court's construction of Section 11 of the AMLA is undoubtedly

influenced by right to privacy considerations. If sustained, petitioner's argument
that a bank account may be inspected by the government following an ex
parte proceeding about which the depositor would know nothing would have
significant implications on the right to privacy, a right innately cherished by all
notwithstanding the legally recognized exceptions thereto. The notion that the
government could be so empowered is cause for concern of any individual who values
the right to privacy which, after all, embodies even the right to be "let alone," the most
comprehensive of rights and the right most valued by civilized people. 84
One might assume that the constitutional dimension of the right to privacy, as
applied to bank deposits, warrants our present inquiry. We decline to do so.
Admittedly, that question has proved controversial in American jurisprudence.
Notably, the United States Supreme Court in U.S. v. Miller  85 held that there was no
legitimate expectation of privacy as to the bank records of a depositor. 86 Moreover,
the text of our Constitution has not bothered with the triviality of allocating specific
rights peculiar to bank deposits.
However, sufficient for our purposes, we can assert there is a right to privacy
governing bank accounts in the Philippines, and that such right finds application to
the case at bar. The source of such right is statutory, expressed as it is in R.A. No.
1405 otherwise known as the Bank Secrecy Act of 1955 . The right to privacy is
enshrined in Section 2 of that law, to wit:
SECTION. 2. All deposits of whatever nature with banks or banking
institutions in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person,
government official, bureau or office, except upon written permission of the

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 depositor, or in cases of impeachment, or upon order of a competent court in
cases of bribery or dereliction of duty of public officials, or in cases where the
money deposited or invested is the subject matter of the litigation. (Emphasis
supplied)

Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a

basic state policy in the Philippines. 87 Subsequent laws, including the AMLA, may have
added exceptions to the Bank Secrecy Act, yet the secrecy of bank deposits still lies as
the general rule. It falls within the zones of privacy recognized by our laws. 88 The
framers of the 1987 Constitution likewise recognized that bank accounts are not
covered by either the right to information 89 under Section 7, Article III or under the
requirement of full public disclosure 90 under Section 28, Article II. 91 Unless the Bank
Secrecy Act is repealed or amended, the legal order is obliged to conserve the
absolutely confidential nature of Philippine bank deposits.
Any exception to the rule of absolute confidentiality must be specifically
legislated. Section 2 of the Bank Secrecy Act itself prescribes exceptions whereby
these bank accounts may be examined by "any person, government official, bureau or
office"; namely when: (1) upon written permission of the depositor; (2) in cases of
impeachment; (3) the examination of bank accounts is upon order of a competent
court in cases of bribery or dereliction of duty of public officials; and (4) the money
deposited or invested is the subject matter of the litigation. Section 8 of R.A. Act No.
3019, the Anti-Graft and Corrupt Practices Act, has been recognized by this Court as
constituting an additional exception to the rule of absolute confidentiality, 92 A
subsequent law, the Ombudsman Act of 1989, contains a provision relating to "access
to bank accounts and records." 93
The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11,
the AMLC may inquire into a bank account upon order of any competent court in
cases of violation of the AMLA, it having been established that there is probable cause
that the deposits or investments are related to unlawful activities as defined in Section
3 (i) of the law, or a money laundering offense under Section 4 thereof. Further, in
instances where there is probable cause that the deposits or investments are related
to kidnapping for ransom, 94 certain violations of the Comprehensive Dangerous
Drugs Act of 2002, 95 hijacking and other violations under R.A. No. 6235, destructive
arson and murder, then there is no need for the AMLC to obtain a court order before
it could inquire into such accounts.
It cannot be successfully argued the proceedings relating to the bank inquiry
order under Section 11 of the AMLA is a "litigation" encompassed in one of the
exceptions to the Bank Secrecy Act which is when "the money deposited or invested is
the subject matter of the litigation." The orientation of the bank inquiry order is simply

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 to serve as a provisional relief or remedy. As earlier stated, the application for such
does not entail a full-blown trial.
Nevertheless, just because the AMLA establishes additional exceptions to
the Bank Secrecy Act it does not mean that the later law has dispensed with the
general principle established in the older law that "[a]ll deposits of whatever nature
with banks or banking institutions in the Philippines . . . are hereby considered as of
an absolutely confidential nature." 96 Indeed, by force of statute, all bank deposits are
absolutely confidential, and that nature is unaltered even by the legislated exceptions
referred to above. There is disfavor towards construing these exceptions in such a
manner that would authorize unlimited discretion on the part of the government or of
any party seeking to enforce those exceptions and inquire into bank deposits. If there
are doubts in upholding the absolutely confidential nature of bank deposits against
affirming the authority to inquire into such accounts, then such doubts must be
resolved in favor of the former. Such a stance would persist unless Congress passes a
law reversing the general state policy of preserving the absolutely confidential nature
of Philippine bank accounts.
The presence of this statutory right to privacy addresses at least one of the
arguments raised by petitioner, that Lilia Cheng had no personality to assail the
inquiry orders before the Court of Appeals because she was not the subject of said
orders. AMLC Resolution No. 75, which served as the basis in the successful
application for the Makati inquiry order, expressly adverts to Citibank Account No.
88576248 "owned by Cheng Yong and/or Lilia G. Cheng with Citibank N.A.," 97 whereas
Lilia Cheng's petition before the Court of Appeals is accompanied by a certification
from Metrobank that Account Nos. 300852436-0 and 700149801-7, both of which are
among the subjects of the Manila inquiry order, are accounts in the name of "Yong
Cheng or Lilia Cheng." 98 Petitioner does not specifically deny that Lilia Cheng holds
rights of ownership over the three said accounts, laying focus instead on the fact that
she was not named as a subject of either the Makati or Manila RTC inquiry orders. We
are reasonably convinced that Lilia Cheng has sufficiently demonstrated her joint
ownership of the three accounts, and such conclusion leads us to acknowledge that
she has the standing to assail via  certiorari  the inquiry orders authorizing the
examination of her bank accounts as the orders interfere with her statutory right to
maintain the secrecy of said accounts.
While petitioner would premise that the inquiry into Lilia Cheng's accounts finds
root in Section 11 of the AMLA, it cannot be denied that the authority to inquire under
Section 11 is only exceptional in character, contrary as it is to the general rule
preserving the secrecy of bank deposits. Even though she may not have been the
subject of the inquiry orders, her bank accounts nevertheless were, and she thus has

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 the standing to vindicate the right to secrecy that attaches to said accounts and their
owners. This statutory right to privacy will not prevent the courts from authorizing the
inquiry anyway upon the fulfillment of the requirements set forth under Section 11 of
the AMLA or Section 2 of the Bank Secrecy Act; at the same time, the owner of the
accounts have the right to challenge whether the requirements were indeed complied
with.

VII.

There is a final point of concern which needs to be addressed. Lilia Cheng

argues that the AMLA, being a substantive penal statute, has no retroactive effect and
the bank inquiry order could not apply to deposits or investments opened prior to the
effectivity of Rep. Act No. 9164, or on 17 October 2001. Thus, she concludes, her
subject bank accounts, opened between 1989 to 1990, could not be the subject of the
bank inquiry order lest there be a violation of the constitutional prohibition against ex
post facto laws.
No ex post facto law may be enacted, 99 and no law may be construed in such
fashion as to permit a criminal prosecution offensive to the ex post facto clause. As
applied to the AMLA, it is plain that no person may be prosecuted under the penal
provisions of the AMLA for acts committed prior to the enactment of the law on 17
October 2001. As much was understood by the lawmakers since they deliberated
upon the AMLA, and indeed there is no serious dispute on that point.
Does the proscription against ex post facto laws apply to the interpretation of
Section 11, a provision which does not provide for a penal sanction but which merely
authorizes the inspection of suspect accounts and deposits? The answer is in the
affirmative. In this jurisdiction, we have defined an ex post facto law as one which
either:
(1) makes criminal an act done before the passage of the law and which
was innocent when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when committed;
(3) changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed;
(4) alters the legal rules of evidence, and authorizes conviction upon less or
different testimony than the law required at the time of the commission of the
offense;
(5) assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was lawful; and

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 (6) deprives a person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former conviction
or acquittal, or a proclamation of amnesty. (Emphasis supplied) 100

Prior to the enactment of the AMLA, the fact that bank accounts or deposits
were involved in activities later on enumerated in Section 3 of the law did not, by
itself, remove such accounts from the shelter of absolute confidentiality. Prior to
the AMLA, in order that bank accounts could be examined, there was need to secure
either the written permission of the depositor or a court order authorizing such
examination, assuming that they were involved in cases of bribery or dereliction of
duty of public officials, or in a case where the money deposited or invested was itself
the subject matter of the litigation. The passage of the AMLA stripped another layer
off the rule on absolute confidentiality that provided a measure of lawful protection to
the account holder. For that reason, the application of the bank inquiry order as a
means of inquiring into records of transactions entered into prior to the passage of
the AMLA would be constitutionally infirm, offensive as it is to the ex post facto clause.
Still, we must note that the position submitted by Lilia Cheng is much broader
than what we are willing to affirm. She argues that the proscription against ex post
facto laws goes as far as to prohibit any inquiry into deposits or investments included
in bank accounts opened prior to the effectivity of the AMLA even if the suspect
transactions were entered into when the law had already taken effect. The Court
recognizes that if this argument were to be affirmed, it would create a horrible
loophole in the AMLA that would in turn supply the means to fearlessly engage in
money laundering in the Philippines; all that the criminal has to do is to make sure
that the money laundering activity is facilitated through a bank account opened prior
to 2001. Lilia Cheng admits that "actual money launderers could utilize the ex post
facto provision of the Constitution as a shield" but that the remedy lay with Congress
to amend the law. We can hardly presume that Congress intended to enact a self-
defeating law in the first place, and the courts are inhibited from such a construction
by the cardinal rule that "a law should be interpreted with a view to upholding rather
than destroying it." 101
Besides, nowhere in the legislative record cited by Lilia Cheng does it appear
that there was an unequivocal intent to exempt from the bank inquiry order all bank
accounts opened prior to the passage of the AMLA. There is a cited exchange between
Representatives Ronaldo Zamora and Jaime Lopez where the latter confirmed to the
former that "deposits are supposed to be exempted from scrutiny or monitoring if
they are already in place as of the time the law is enacted." 102 That statement does
indicate that transactions already in place when the AMLA was passed are indeed
exempt from scrutiny through a bank inquiry order, but it cannot yield any
interpretation that records of transactions undertaken after the enactment of
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 the AMLA are similarly exempt. Due to the absence of cited authority from the
legislative record that unqualifiedly supports respondent Lilia Cheng's thesis, there is
no cause for us to sustain her interpretation of the AMLA, fatal as it is to the anima of
that law.

IX.

We are well aware that Lilia Cheng's petition presently pending before the Court
of Appeals likewise assails the validity of the subject bank inquiry orders and precisely
seeks the annulment of said orders. Our current declarations may indeed have the
effect of preempting that petition. Still, in order for this Court to rule on the petition at
bar which insists on the enforceability of the said bank inquiry orders, it is necessary
for us to consider and rule on the same question which after all is a pure question of
law.
WHEREFORE, the PETITION is DISMISSED. No pronouncement as to costs.
  (Republic v. Eugenio, Jr., G.R. No. 174629, [February 14, 2008], 569 PHIL 98-136)
|||

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18.) G.R. No. 203335               February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203378

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

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT
OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU
OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

x-----------------------x

G.R. No. 203391

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HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

x-----------------------x

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND
R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS
GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.

x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

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x-----------------------x

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.

x-----------------------x

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN
A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY
EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity
as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police, Respondents.

x-----------------------x

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x

G.R. No. 203515

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NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.

x-----------------------x

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR

MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA
TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR
OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since it could not filter out a number of
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persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting
defamatory statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government has
a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories
of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

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

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

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 n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime
of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with
the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,  useful in
1

determining the constitutionality of laws that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest.  Later, the strict scrutiny standard was used to assess the validity of laws dealing
2

with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection. 3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act
– accessing the computer system of another without right. It is a universally condemned conduct. 4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ
tools and techniques used by criminal hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records. 5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the
search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free
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card."  Since the ethical hacker does his job with prior permission from the client, such permission would insulate
6

him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference,
it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.  But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
7

form of vandalism,  the act of willfully destroying without right the things that belong to others, in this case their
8

computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect  or the fear of
9

possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct.  Here, the chilling effect that results in
10

paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no
tendency to intimidate the free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.  Petitioner has failed to discharge this burden.
11

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

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and
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 (iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause  in that, not being
12

narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take
the name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others
who are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures.  But the Court acknowledged its existence
13

as early as 1968 in Morfe v. Mutuc,  it ruled that the right to privacy exists independently of its identification with
14

liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"  the 15

relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights
which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the
right to the protection of the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches  and 16

seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.  In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
17

a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. 18

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The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.  The
19

law punishes those who acquire or use such identifying information without right, implicitly to cause damage.
Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator.  As such, the press, whether in quest of news
20

reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.  They express fear
21

that private communications of sexual character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In
common usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or
"a token of love (as a ribbon) usually worn conspicuously."  This meaning given to the term "favor" embraces
22

socially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of married
couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give
a proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of obscenity to some."  The 23

understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex.  The Act actually seeks to punish cyber prostitution, white slave trade, and
24

pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam. 25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act
of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography."  The law defines
26

prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration. 27

Practice Court
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography.  The Court weighed the property rights of
29

individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.  The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it
30

apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the
lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has
intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 2009  (ACPA) to cover
31

identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.  The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded
32

in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography"  clearly relates to the prosecution of persons who aid and
33

abet the core offenses that ACPA seeks to punish.  Petitioners are wary that a person who merely doodles on paper
34

and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who
replies to the tweet could be considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

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 xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in
any part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which
actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu. 35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.  The State cannot rob him of this right without violating the constitutionally guaranteed
36

freedom of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.

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The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos,
or both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code  and, in effect, the libel provisions of the cybercrime law
37

carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with
the higher standard of "actual malice" as a basis for conviction.  Petitioners argue that inferring "presumed malice"
38

from the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin
v. People  even where the offended parties happened to be public figures.
39

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice. 40

There is "actual malice" or malice in fact  when the offender makes the defamatory statement with the knowledge
41

that it is false or with reckless disregard of whether it was false or not.  The reckless disregard standard used here
42

requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice. 43

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The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false,
is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs. 44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in
fact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The
law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.  For 45

his defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in
fact true.
46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,  the United Nations Human Rights Committee (UNHRC) cited its General Comment 34
47

to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.  Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise
48

carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as
may be necessary and as may be provided by law. 49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.

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But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement
or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were
enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.  In a sense, they are a
50

world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the
internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter
that the Court will deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids
in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of
the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is
at times sufficient to guide law enforcement agencies in enforcing the law.  The legislature is not required to define
51

every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,  smuggling merchandise into the country,  or interfering in the peaceful picketing of
52 53

laborers,  his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
54

forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The
idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within
a year, translating to about 31 million users.  Based on a recent survey, the Philippines ranks 6th in the top 10 most
55

engaged countries for social networking.  Social networking sites build social relations among people who, for
56

example, share interests, activities, backgrounds, or real-life connections. 57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.  Users register at this site, create a personal profile or an open book of who
58

they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.  A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
59

depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook
can react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like,"
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"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or
other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this
particular user’s posts, enabling them to read the same, and "Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting
it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.  Now, suppose Maria (a blogger) maintains a blog on
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WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to
friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds
it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers"
then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses
agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel
in the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends
or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or
abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice
as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

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The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,  a case involving
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the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission,
by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA
threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal
sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas,
and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms. 62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.  The terms "aiding or abetting" constitute broad sweep that generates chilling effect
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on those who express themselves through cyberspace posts, comments, and other messages.  Hence, Section 5 of
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the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections,  "we must view these statements of
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the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing. 66

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But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of
a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence. 67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it
will destroy relationships and, under certain circumstances, will generate enmity and tension between social or
economic groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child pornography," does
this make Google and its users aiders and abettors in the commission of child pornography crimes?  Byars 68

highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a
provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any action
voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected. 69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details.
In this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information.  As the source of this information, is the user aiding the distribution of
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this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of
internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners
point out, formal crimes such as libel are not punishable unless consummated.  In the absence of legislation tracing
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the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
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Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise
of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted.  If Section 5 that
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punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username
and password could not file a complaint against him for attempted hacking. But this is not right. The hacker should
not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.  While this may be true
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with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable certainty through adroit tracking of their works.
Absent concrete proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed
by, through and with the use of information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
by the Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed using other means. In using the
technology in question, the offender often evades identification and is able to reach far more victims or cause
greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of the
other.  With the exception of the crimes of online libel and online child pornography, the Court would rather leave
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the determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353.
Section 4(c)(4) merely establishes the computer system as another means of publication.  Charging the offender
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under both laws would be a blatant violation of the proscription against double jeopardy. 76

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The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as
to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished
with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not
exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished
with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex; 4(c)
(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting,
and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have
been connected with another crime.  Judges and magistrates can only interpret and apply them and have no
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authority to modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:
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Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized
to collect or record by technical or electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,  that there is a compelling State interest behind the law, and that the provision
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itself is narrowly drawn.  In assessing regulations affecting privacy rights, courts should balance the legitimate
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concerns of the State against constitutional guarantees. 81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to
the tremendous activities in cyberspace for public good.  To do this, it is within the realm of reason that the
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government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities
to collect or record "traffic data, in real time, associated with specified communications."  And this is precisely what
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Section 12 does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,  transmitting viruses,  lasciviously exhibiting
84 85

sexual organs or sexual activity for favor or consideration;  and producing child pornography  could easily evade
86 87

detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones
under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be
located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed in ferreting them out.

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Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable.
Indeed, the Court recognizes in Morfe v. Mutuc  that certain constitutional guarantees work together to create zones
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of privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms. 89

But that right is not unqualified. In Whalen v. Roe,  the United States Supreme Court classified privacy into two
90

categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.  In determining whether or not a matter is entitled to the right to privacy, this
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Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation
of privacy must be one society is prepared to accept as objectively reasonable. 92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the
packet fits together with other packets.  The difference is that traffic data sent through the internet at times across
93

the ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to another where
their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s
system will put his voice message into packets and send them to the other person’s cellphone where they are
refitted together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He
also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,  cited by the Solicitor General, the United States Supreme Court reasoned that telephone
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users in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.

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In much the same way, ICT users must know that they cannot communicate or exchange data with one another
over cyberspace except through some service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this data takes them out of the private
sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize
as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the
law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the
Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data.
It is akin to the use of a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of
their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But
this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of
individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it
is not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and
that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses. 95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free

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speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such
analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All
the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In
modern terms, the capacity to maintain and support this enclave of private life marks the difference between a
democratic and a totalitarian society."  The Court must ensure that laws seeking to take advantage of these
96

technologies be written with specificity and definiteness as to ensure respect for the rights that the Constitution
guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Petitioners in G.R. 203391  claim that Section 13 constitutes an undue deprivation of the right to property. They
97

liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and
are to be considered private communications. But it is not clear that a service provider has an obligation to
indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those relating to content data for
at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process
of preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue
an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or
relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a
valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for
the purpose of investigation.

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The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that
the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers. 98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning
of the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
provider’s storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

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Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him
in its storage system. If he wanted them preserved, he should have saved them in his computer when he generated
the data or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.

Computer data  may refer to entire programs or lines of code, including malware, as well as files that contain texts,
99

images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states
that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction
on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize
content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such
content violates some law, for to do so would make him judge, jury, and executioner all rolled into one. 100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.  Section 19, however, merely requires that the data to be blocked be found prima facie in
101

violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.

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Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,  Section 20
102

necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be
a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from
the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating
Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation
and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is
to enforce it.  The second test mandates adequate guidelines or limitations in the law to determine the boundaries of
1avvphi1

the delegate’s authority and prevent the delegation from running riot. 103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best
practices, assurance and technologies that can be used to protect cyber environment and organization and user’s
assets.  This definition serves as the parameters within which CICC should work in formulating the cybersecurity
104

plan.

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Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation."  This policy is clearly adopted
105

in the interest of law and order, which has been considered as sufficient standard.  Hence, Sections 24 and 26(a)
106

are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith to
the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging to
another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for
favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code
are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic data
and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued
warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration of the
prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and
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 p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

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19.) See PDF.

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 20.) G.R. No. 226244, June 16, 2021

ANNIEBEL B. YONZON, Petitioner, v. COCA-COLA BOTTLERS PHILIPPINES, INC.,

Respondent.

DECISION

CARANDANG, J.:

Before Us is a Petition for Review on Certiorari1 assailing the Decision2 dated May 23, 2016 and
Resolution3 dated August 2, 2016 of the Court of Appeals (CA) in CA-G.R. SP No. 142076. The CA
reversed and set aside the Decision4 dated May 20, 2015 of the National Labor Relations Commission
(NLRC). It declared that Coca-Cola Bottlers Philippines, Inc. (Coca-Cola) validly dismissed Anniebel B.
Yonzon (Yonzon) from employment on the ground of loss of trust and confidence. 5

In her Position Paper,6 Yonzon alleged that Coca-Cola hired her as an HR Generalist on December 1,
2010. However, she was terminated from employment on April 30, 2011 for failure to quality
according to the company's standard, which were not made known to her. She filed a complaint for
illegal dismissal, regularization, damages, and attorney's fees against Coca-Cola, its Human
Resources (HR) Head Domingo Lazaro Carranza (Carranza), and its HR Executive Sarah O. Villa
(Villa), docketed as NLRC-NCR-05-08155-11 (first labor case). The Labor Arbiter (LA) dismissed the
complaint for lack of merit. On appeal, the NLRC reversed the LA. It declared Yonzon's dismissal from
work as illegal, thus it ordered Coca-Cola to reinstate her as a regular employee and to pay her full
backwages from the date of her dismissal until the finality of the decision. 7 Yonzon filed a Motion for
Partial Reconsideration8 dated July 5, 2012, seeking payment of moral and exemplary damages and
attorney's fees on the ground of Coca-Cola's bad faith in effecting her termination from service. She
claimed that her health condition, having myomas, precipitated her dismissal. In the meantime,
Coca-Cola reinstated Yonzon to the position of HR Staff and not HR Generalist. This prompted Yonzon
to file a Motion for Execution dated October 22, 2012, praying for reinstatement in her original
position with corresponding salary adjustment and for a pre-execution conference to determine the
correct amount of backwages that she is entitled to.9

The Motion for Partial Reconsideration and the Motion for Execution remain unacted causing Yonzon
to file a Motion10 dated March 14, 2014 (Third Motion). Yonzon asked the NLRC to: (1) inquire into
the correctness of her reinstatement and the corresponding recomputation of her wages; (2) order
Coca-Cola to pay moral and exemplary damages, attorney's fees, and litigation costs; and (3)
declare Carranza and Villa in contempt for subverting and contravening the NLRC Decision and
existing labor laws and jurisprudence. To substantiate her claim of discrimination, Yonzon cited the
salaries of the other four HR Generalist who were her junior. While they were receiving monthly
salaries ranging from P23,309.00 to P29,193.00, Yonzon was receiving only P18,576.00.11

On March 21, 2014, Coca-Cola issued a Notice to Explain (NTE) and Preventive Suspension 12 placing
Yonzon to a 30-day preventive suspension without pay due to her unauthorized disclosure of her co-
employees' salaries in her Motion to Resolve before the NLRC. The NTE stated that Yonzon violated
Coca-Cola's Disciplinary Rules and Regulations (Red Book), Code of Business Ethics (COBE) and the
Labor Code. On March 25, 2014, Yonzon explained that she did not disclose any trade secret or
confidential information to Coca-Cola's competitors or any third party. Rather, she revealed the
information to an officer of the court and embodied in a pleading filed with the NLRC.13 On April 23,
2014, Coca-Cola dismissed Yonzon thru a Notice of Decision,14 finding her guilty of unauthorized
disclosure of confidential company information to third parties and loss of trust and confidence. 15

On May 21, 2014, Yonzon filed the present complaint against Coca-Cola, Carranza, and
Villa.16 She argued that her disclosure of the salaries of her co-employees is not a valid

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ground for termination. The NLRC and her counsel are not business competitors of Coca-Cola.
Yonzon maintained that she is not privy to any of the company's trade secrets, confidential materials
or information, formulae, processes, or studies. The interpretation given by Coca-Cola to the
pertinent portions of the Red Book and taking the same against her is absurd. Thus, Yonzon prayed
that her termination be declared illegal. She also prayed for the payment of P300,000.00 moral
damages, P1,000,000.00 exemplary damages, P50,000.00 attorney's fees, and P50,000.00 litigation
costs.17

In their Position Paper,18 Coca-Cola, Carranza, and Villa alleged that Yonzon was occupying the
position of HR Administration Analyst tasked to perform various HR Services processes within her
Region including the sensitive duty of employment data management and masterfile accuracy. As
such, she was inevitably exposed to the business and operations of the company, including
employee data which are either confidential or commercially sensitive and which are not
readily available to competitors, third parties, or the general public.19 In her Third Motion
to the NLRC, Yonzon, without the consent of the company and her co-employees, disclosed
and appropriated for her own benefit, the sensitive and confidential information regarding
employee salary, which she obtained by virtue of her position. She did so wilfully and
maliciously to further her own interest and to disturb the final resolution of the NLRC's Third Division
in the first labor case. This prompted Coca-Cola to issue an NTE requiring Yonzon to explain in
writing why she should not be terminated for potential violations of the following:

a.) Rule 3, Section 31 of the Red Book: "Giving of, supplying, and disclosing to the unauthorized person
or the competitors, classified trade secrets, and other confidential materials, information, data or
documents relating to the Company's operations, programs formulae, processes, market studies,
surveys, and other Company classified/restricted/confidential information, or other data, documents
information similar to those enumerated herein.
b.) Rule 5, Section 2 of the Red Book: Other acts of negligence or inefficiency in the performance of
duties or in the care, custody, and/or use of Company of property, funds, and/or equipment;
c.) Rule 5, Section 3 of the Red Book: Disregard or deviation from established control and other policies
and procedures including but not limited to the care, custody, and/or use of Company property, funds,
and/or equipment; or similar acts of omission;
d.) KOF COBE, General Rules of Ethics Number 14: Obligation not to disclose confidential information
regarding processes, methods, strategies, plans, pro jects, technical or market data, or information of
any kind;
e.) Article 282 of the Labor Code Breach of Trust and Confidence.20

Considering the gravity of the offenses committed and to avert further breach of proprietary
information, Coca-Cola placed Yonzon to a preventive suspension of 30 days upon her receipt of the
NTE. Yonzon filed an answer but did not attend the administrative hearings set by the company.
Finding more than sufficient evidence to conclude that Yonzon was guilty of the charges against her,
the company dismissed her from employment through a Notice of Decision. 21

Coca-Cola, Carranza, and Villa asserted that Yonzon was dismissed with just cause and with due
process. Yonzon's act of disclosing salary information without authorization or consent from the
company or her co-employees constitutes serious misconduct and willful breach of the company's
trust and confidence which are valid grounds for termination under Article 282 of the Labor Code. As
an HR Administration Analyst entrusted with the handling, safekeeping, and management of
confidential and otherwise commercially sensitive proprietary information, Coca-Cola has every
reason to always require of her utmost diligence, dedication, and care in handling such
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information.22 Accordingly, Yonzon is not entitled to her money claims and for damages. Carranza
and Villa cannot also be held liable as corporate employees absent any proof that they acted
maliciously or in bad faith.23

Ruling of the Labor Arbiter

In her Decision24 dated December 29, 2014, the LA dismissed the complaint for lack of merit as well
as the claim for underpayment of salary for lack of basis. 25

The LA ruled that while no company trade secret was divulged by Yonzon, she, nonetheless, had no
authority to disclose confidential information such as the salary of her co-employees. At the very
least, she should have sought the consent of her co-employee before using the information for
personal use. That she submitted the information to the NLRC to buttress her stance in her first labor
case, was unacceptable. Her act of securing the information of her co-employees and using it without
authorization, not only violated the company rules but also the right of her co-employees. 26

The LA held that proof beyond reasonable doubt of an employee's misconduct is not required when
loss of confidence is the ground for dismissal. It is sufficient if the employer has some basis to lose
confidence or that the employer has reasonable ground to believe or to entertain the moral
conviction that the employee concerned is responsible for the misconduct and that the nature of
his/her participation therein rendered him/her unworthy of the trust and confidence demanded by his
position. Here, Coca-Cola had a basis to lose trust and confidence with Yonzon. 27

With respect to the claim of underpayment of salary, the LA noted that during the hearing held on
September 16, 2014, Yonzon admitted that her claim refers to her compensation not being
commensurate with her work. However, the LA has no basis to evaluate such allegation. 28

Yonzon appealed to the NLRC.

Ruling of the National Labor Relations Commission

In its Decision29 dated May 20, 2015, the NLRC reversed the LA and declared Yonzon illegally
suspended/dismissed from her job. It ordered Coca-Cola to reinstate Yonzon to her post and pay her
backwages and other benefits to be computed from the time she was preventively suspended on
March 21, 2014 until her actual reinstatement and attorney's fees equivalent to 10% of the total
judgment award. All the other claims of Yonzon were denied for lack of legal and factual bases. Per
computation of the NLRC as of May 13, 2015, the total monetary award of Yonzon is P313,152.52. 30

The NLRC held that Yonzon's disclosure of her co-employees' salary in her Motion to Resolve did not
violate Rule 3, Section 31 of Coca-Cola's Red Book. It noted that the only criterion to guide the
exercise of the employer's management prerogative to discipline or to dismiss its erring employees is
that the policies, rules and regulations or work-related activities of the employees must always be
fair and reasonable and the corresponding penalties, when prescribed, should be commensurate to
the offense involved and to the degree of infraction. 31

Coca-Cola classified the disclosure of employee salary as giving or supplying to unauthorized persons
or competitors "other company classified/restricted/confidential information" because it is evident
that it does not fall under "trade secret, data or document, formulae, processes, market studies, or
surveys relating to the company's operation." However, such classification is too generic or vague
which gives Coca-Cola ample room or leeway to categorize any information that it may desire and
label the same as classified/restricted/confidential. The Red Book did not provide a specific list of
data, information, or document nor does it given parameters which can be used in determining that
such data, information, or document is indeed classified/restricted/confidential in nature. Coca-Cola
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did not state what makes the salaries of rank-and-file employees so sensitive and confidential such
that the disclosure of the same to unauthorized persons or competitors would merit Yonzon's
dismissal from her job. The disclosure did not pose any threat nor put in Coca-Cola's interest in
jeopardy.32

The NLRC found that Rule 3, Section 31 of the Red Book is unfair and unjust for the employees
because it can be used conveniently to categorize any data, document, or information as
classified/restricted/confidential to the company's advantage, but to the detriment of its employees.
Hence, no violation was committed by Yonzon. Consequently, the charges of serious misconduct and
willful breach of trust and confidence have no leg to stand on. The NLRC declared Yonzon's
preventive suspension and dismissal from service as illegal. 33

Coca-Cola moved for reconsideration which the NLRC denied in its Resolution 34 dated July 8, 2015. It
elevated the case to the CA via a petition for certiorari.

Ruling of the Court of Appeals

In its Decision35 dated May 23, 2016, the CA annulled and set aside the NLRC's ruling and reinstated
the Decision of the LA dismissing the complaint. 36

The CA held that there is enough reason for Coca-Cola to dismiss Yonzon for loss of trust and
confidence since she used her position to secure a favor for herself against the company. Yonzon
cannot be allowed to use procedural shortcuts by using the data available to her to further her cause.
The CA clarified that it is not saying that Yonzon cannot and should not use the information about her
co-employees' salary but she could have obtained the consent of the company or her co-employees. 37

The CA explained that loss of trust and confidence is a just cause for termination of employment
premised on the fact that the employee concerned holds a position of responsibility or trust and
confidence. He/she must be invested with confidence on delicate matters, such as the custody,
handling, or care and protection of the property and assets of the employer. In order to constitute a
just cause for dismissal, the act complained of must be: (1) work-related; (2) must show that the
employee is unfit to continue to work for the employer; and (3) founded on clearly established facts
sufficient to warrant the employee's separation from employment. 38

Yonzon filed a motion for reconsideration but the CA denied it in its Resolution 39 dated August 2,
2016.

Aggrieved, Yonzon filed this petition before Us. She reiterated the ruling of the NLRC that Rule 3,
Section 31 of the Red Book is not fair and reasonable since it neither provided a specific list of data,
information, or document nor indicated parameters in determining that a data, information, or
document is classified/restricted/confidential in nature. She maintained that she did not disclose any
company trade secret or confidential information or studies to any competitor or entity that may
even be remotely interested in the salaries of rank-and-file employees for gain or whatever
mercantile or sinister purpose which may put Coca-Cola, its employees, processes, products, or
patronage in any possible jeopardy. The NLRC and Yonzon's counsel are not business competitors of
Coca-Cola. They are not interested in any pursuit to take advantage of any information gained on the
salaries of Coca-Cola's rank-and-file beyond the merits of the subject labor case. 40

Yonzon further alleged that her disclosure of the salaries of her co-employees did not violate the Data
Privacy Act of 2012 since under Section 13 thereof, the processing of personal information and
privileged information is allowed if it concerns "personal information necessary for the protection of
lawful rights and interests of natural or legal persons in court proceedings, or the establishment,
exercise or defense of legal claims, or when provided to government or public authority." 41

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In its Comment, Coca-Cola repleaded its arguments before the LA that Yonzon held a position of trust
and confidence and that she substantially committed a breach of trust when she disclosed employee
salary, which is either confidential or commercially sensitive information. 42 Salaries of employees and
other employee data are vital components of every business operations. Not only do they represent a
large portion of the company's operating budget, but they also hugely contribute to the success and
downfall of an enterprise. Thus, this kind of information are not readily available to competitors, third
parties, or the public.43

Coca-Cola countered that Rule 3, Section 31 is not vague. Its negative covenant refers to confidential
information, secrets, or data other than that which is within the public domain concerning the
organization, finances, or transactions of affairs of the company, its employees, or its clients. It is
absurd to require that every kind of information must be specifically categorized as confidential or
sensitive before it can be classified as such. The ascertainable standard is whether the salary
information of Yonzon and her co-employees is readily available to other persons. 44 Coca-Cola
furthermore alleged that employee salary is protected by Data Privacy Act of 2012. Only salaries of
government employees are excluded from the law's coverage. Also, contrary to the claim of Yonzon,
processing of personal information is subject to the requirement that the data subject has given his
or her consent.45

Issue

The issue in this case is whether Yonzon was validly dismissed.

Ruling of the Court

The petition is meritorious.

Yonzon was terminated from employment due to loss of trust and confidence. For her termination to
be valid, two conditions must concur: (1) she must occupy a position of trust and confidence; and (2)
there must be some basis for the loss of trust and confidence, that is, the employer must establish
the existence of an act justifying the loss of trust of trust and confidence. 46 The first condition is
missing.

Case law teaches that there are two classes of positions in which trust and confidence are reposed by
the employer, namely, managerial employees and fiduciary rank-and-file employees. The first class
are those vested with the powers or prerogatives to lay down management policies and to hire,
transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend
such managerial actions. The second class includes those who in the normal and routine exercise of
their functions regularly handle significant amounts of money or property. Examples are cashiers,
auditors, and property custodians.47 Nevertheless, it is the nature and scope of the work and not the
job title or designation which determines whether an employee holds a position of trust and
confidence.48 Thus, We held that a finance clerk, who is positioned at the gates of a warehouse and
whose duties include goods receipt inventory, full goods verification, and encoding and recording
duties of assets trafficked in and out of the warehouse, holds a position of trust and confidence. 49

In this case, We rule that Yonzon does not fall in either classes of positions of trust and confidence.
She is neither a managerial employee nor a fiduciary rank-and-file employee. Per the job description
form attached in the Position Paper of Coca-Cola, the functions of an HR Administration Analyst are
as follows:
a.) handles all relevant information of the company through the generation and monitoring of
communication campaigns and media used locally

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 b.) supports the implementation of the activities derived from organizational climate survey
c.) preparation and dissemination of Communications Campaigns/Specific Media
d.) supports Social Development Plan and Social Responsibility activities
e.) ontime and accurate HR Services processes for the Region
i. Payroll and benefits administration
ii. Timekeeping, absenteeism (and establish programs to help reducing the absenteeism justified
and unjustified by the operational units), leave availments
iii. Employee Data Management/Masterfile Accuracy
iv. Tools of trade administration50

Clearly, Yonzon, in the normal and routine exercise of her functions, does not handle significant
amount of money or property. Coca-Cola asserted that Yonzon holds a confidential position because
she has access to the company's payroll system. However, in San Miguel Foods, Inc. v. San Miguel
Corp. Supervisors and Exempt Union,51 We declared that a payroll master and other employees who
has access to salary and compensation data are not confidential employees since the nature of their
work do not pertain to company rules and regulations and confidential labor relations.

In fine, the CA erred in ruling that Yonzon was validly dismissed from employment based on loss of
trust and confidence.

Meanwhile, We also find that Yonzon did not violate Section 3, Rule 31 of Coca-Cola's Red
Book, which prohibits the following:

Giving of, supplying, and disclosing to the unauthorized person or the competitors, classified trade
secrets, and other confidential materials, information, data or documents relating to the Company's
operations, programs formulae, processes, market studies, surveys, and other Company
classified/restricted/confidential information, or other data, documents information similar to those
enumerated herein.52

As correctly noted by the NLRC, the prohibition stated above pertains to three different categories of
information, which are:

a) Classified trade secrets and other confidential materials, information, data or documents relating to the
company's operations, program formulae, processes, market studies, surveys;
b) Other company classified/restricted/confidential information; or
c) Other data, documents information similar to those enumerated herein.53

Evidently, data on employee salary does not fall in the first category. It may pertain to the
second or third category because they are broad enough to accommodate any information which
Coca-Cola may deem or treat as confidential/classified/restricted. For this very reason, Rule 3,
Section 31 of the Red Book is unfair and unreasonable. It suffers from vagueness. While the adoption
and enforcement of the provisions of the Red Book is a valid exercise of Coca-Cola's management

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prerogative, such exercise is not absolute and unbridled. An employer must ensure that its rules and
regulations on work-related activities of the employees must be fair and reasonable and the
corresponding penalties, when prescribed is commensurate to the offense involved and to the degree
of the infraction.54

In Mirant (Philippines) Corp. v. Caro,55 We find that the term "unjustified refusal" is unclear with
respect to the policy of the employer providing that an employee's "unjustified refusal" to submit to a
random drug testing shall be punishable by the penalty of termination for the first offense. There, the
management did not clarify to its employees what types of acts would fall under the purview of
"unjustified refusal." Similarly, here, Coca-Cola did not give any examples or standards on how an
information may be considered as confidential/classified/restricted leaving the same subject to the
company's whims and caprices. As such, it is unreasonable to hold Yonzon liable for violation of Rule
3, Section 31 of the Red Book. Article 1702 of the New Civil Code states that "[i]n case of doubt, all
labor legislation and all labor contracts shall be construed in favor of the safety and decent living for
the laborer." Hence, the ambiguous provision of the Red Book should not prejudice the rights of
Yonzon against an illegal dismissal.56

Notably, even assuming that Coca-Cola has a legitimate company policy against disclosure of
employee salary, still Yonzon cannot be held liable because she revealed the salary of her co-
employees to the NLRC for the sole purpose of comparison, that is, to show the court that she was
unjustly discriminated against by her employer, notwithstanding the order of reinstatement without
loss of seniority rights in her favor in the first labor case. Yonzon had no sinister motive in disclosing
the salaries of her co-employees who she alleged to be her junior in rank but whose salaries are
higher than hers.

Since Yonzon was illegally dismissed, she is entitled to reinstatement without loss of seniority rights
and other privileges and to her full backwages, inclusive of allowances, and other benefits or their
monetary equivalent computed from the time her compensation was withheld from her up to the
time of her actual reinstatement. However, Yonzon's reinstatement is rendered impossible and
unreasonable given the length of time that passed since the controversy started on March 21, 2014.
Thus, separation pay equivalent to one month salary for every year of service, in lieu of
reinstatement, is proper.57

Since Yonzon was compelled to litigate her case to protect her rights and interest, she is entitled to
attorney's fees equivalent to 10% of the total monetary award. The total monetary awards shall be
subject to legal interest at the rate of six percent (6%) per annum from the date of the finality of this
Decision until full payment.58

As regards the claim for moral and exemplary damages, Yonzon failed to prove by clear and
convincing evidence that Coca-Cola was motivated with bad faith in effecting her termination.

WHEREFORE, the petition is GRANTED. The Decision dated May 23, 2016 and the Resolution dated
August 2, 2016 of the Court of Appeals in CA G.R. SP No. 142076 are REVERSED and SET ASIDE,
and the Decision dated May 20, 2015 of the National Labor Relations Commission is REINSTATED
with MODIFICATION in that petitioner Anniebel B. Yonzon is awarded separation pay equivalent to
one (1) month salary for every year of service in lieu of reinstatement. The total monetary awards
shall be subject to a legal interest at the rate of six percent (6%) per annum from the finality of this
Decision until full satisfaction.c

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