G.R. No.
127685 July 23, 1998 WHEREAS, this will require a computerized system to
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO
HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO,
RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL
COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON
AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F.
Ople to prevent the shrinking of the right to privacy, which the revered Mr.
Justice Brandeis considered as "the most comprehensive of rights and the
right most valued by civilized men." 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.
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;
properly and efficiently identify persons seeking basic
services on social security and reduce, if not totally
eradicate fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the
various basic services and social security providing
agencies and other government intrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by virtue of the powers vested
in me by law, do hereby direct the following:
Sec. 1. Establishment of a National Compoterized
Identification Reference System. A decentralized
Identification Reference System among the key basic
services and social security providers is hereby
established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-
Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation
of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local
Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is
hereby designated as secretariat to the IACC and as such
shall provide administrative and technical support to the
IACC.
Sec. 4. Linkage Among Agencies. The Population Reference
Number (PRN) generated by the NSO shall serve as the
common reference number to establish a linkage among
concerned agencies. The IACC Secretariat shall coordinate
with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics
Technology and in computer application designs of their
respective systems.
Sec. 5. Conduct of Information Dissemination Campaign.
The Office of the Press Secretary, in coordination with the
National Statistics Office, the GSIS and SSS as lead agencies
and other concerned agencies shall undertake a massive
tri-media information dissemination campaign to educate
and raise public awareness on the importance and use of
the PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the
implementation of the system shall be sourced from the
respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and
SSS shall submit regular reports to the Office of the
President through the IACC, on the status of
implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take
effect immediately.
DONE in the City of Manila, this 12th day of December in
the year of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner
filed the instant petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government agencies, who as members
of the Inter-Agency Coordinating Committee, are charged with the
implementation of A.O. No. 308. On April 8, 1997, we issued a temporary
restraining order enjoining its implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM REQUIRES A
LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE
LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC
OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE
PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS
AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE
RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY
LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL
VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE
CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS
WOULD WARRANT A JUDICIAL REVIEW;
 B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE
EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE
POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF
THE IDENTIFICATION REFERENCE SYSTEM MAY BE
SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S
INTEREST IN PRIVACY. 3
We now resolve.
I identification that is all-encompassing in scope, affects the life and liberty
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
of every Filipino citizen and foreign resident, and more particularly,
violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the
lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and
the power of the Executive to execute laws will disturb their delicate
balance of power and cannot be allowed. Hence, the exercise by one
branch of government of power belonging to another will be given a
stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws,
and to alter and repeal them." 8 The 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 Presidents. 15 It
is generally defined as the power to enforce and administer the laws. 16 It
is the power of carrying the laws into practical operation and enforcing
their due observance. 17
As head of the Executive Department, the President is the Chief Executive.
He represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. 18 He has
control over the executive department, bureaus and offices. This means
that he has the authority to assume directly the functions of the executive
department, bureau and office or interfere with the discretion of its
officials.19 Corollary to the power of control, the President also has the
duty of supervising the enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted administrative power
over bureaus and offices under his control to enable him to discharge his
duties effectively. 20
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. 21 It
enables the President to fix a uniform standard of administrative efficiency
and check the official conduct of his agents. 22 To this end, he can issue
administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a
subject that is not appropriate to be covered by an administrative order.
An administrative order is:
Sec. 3. Administrative Orders. — Acts of the President
which relate to particular aspects of governmental
operation in pursuance of his duties as administrative
head shall be promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President
which relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for
the sole purpose of implementing the law and carrying out the
legislative policy. 24 We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of
1987. The Code is a general law and "incorporates in a unified
document the major structural, functional and procedural
principles of governance." 25 and "embodies changes in
administrative structure 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 Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative
Procedure. These Books contain provisions on the organization,
powers and general administration of the executive, legislative
and judicial branches of government, the organization and
administration of departments, bureaus and offices under the
executive branch, the organization and functions of the
Constitutional Commissions and other constitutional bodies, the
rules on the national government budget, as well as guideline for
the exercise by administrative agencies of quasi-legislative and
quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization, personnel
and recruitment, supervision and discipline, and the effects of the
functions performed by administrative officials on private
individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies — the primacy of
national security, the extent of privacy interest against dossier-gathering
by government, the choice of policies, etc. Indeed, the dissent of Mr.
Justice Mendoza states that the A.O. No. 308 involves the all-important
freedom of thought. As said administrative order redefines the parameters
of some basic rights of our citizenry vis-a-vis the State as well as the line
that separates the administrative power of the President to make rules
and the legislative power of Congress, it ought to be evident that it deals
with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law
because it confers no right, imposes no duty, affords no proctection, and
creates no office. Under A.O. No. 308, a citizen cannot transact business
with government agencies delivering basic services to the people without
the contemplated identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with government. It is thus
clear as daylight that without the ID, a citizen will have difficulty exercising
his rights and enjoying his privileges. Given this reality, the contention that
A.O. No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits
of administrative legislation and consequently erodes the plenary power
of Congress to make laws. This is contrary to the established approach
defining the traditional limits of administrative legislation. As well stated
by Fisher: ". . . Many regulations however, bear directly on the public. It is
here that administrative legislation must he restricted in its scope and
application. Regulations are not supposed to be a substitute for the
general policy-making that Congress enacts in the form of a public law.
Although administrative regulations are entitled to respect, the authority
to prescribe rules and regulations is not an independent source of power
to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law,
still it cannot pass constitutional muster as an administrative legislation
because facially it violates the right to privacy. The essence of privacy is
the "right to be let alone." 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
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:
x x x           x x x          x x x
The Griswold case invalidated a Connecticut statute which
made the use of contraceptives a criminal offence on the
ground of its amounting to an unconstitutional invasion of
the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy
created by several fundamental constitutional
guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as
such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has
always included the idea that governmental powers stop
short of certain intrusions into the personal life of the
citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive
control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the
 public sector, which the state can control. Protection of
this private sector — protection, in other words, of the
dignity and integrity of the individual — has become
increasingly important as modern society has developed.
All the forces of a technological age — industrialization,
urbanization, and organization — operate to narrow the
area of privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic
and a totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy
is recognized and enshrined in several provisions of our Constitution. 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 protectad in various
provisions of the Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person
be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their
persons, houses papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be
seized.
x x x           x x x          x x x
Sec. 6. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of
national security, public safety, or public health as may be
provided by law.
x x x           x x x          x x x
Sec. 8. The right of the people, including those employed
in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law
shall not be abridged.
Sec. 17. No person shall be compelled to be a witness
against himself.
Zones of privacy are likewise recognized and protected in our laws. The
Civil Code provides that "[e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other
persons" and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. 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 provides our citizens
and foreigners with the facility to conveniently transact business with
basic service and social security providers and other government
instrumentalities and (2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by persons seeking basic
services. It is debatable whether these interests are compelling enough to
warrant the issuance of A.O. No. 308. But what is not arguable is the
broadness, the vagueness, the overbreadth of A.O. No. 308 which if
implemented will put our people's right to privacy in clear and present
danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a
Population Reference Number (PRN) as a "common reference number to
establish a linkage among concerned agencies" through the use of
"Biometrics Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical
methods to biological facts; a mathematical analysis of biological
data." 45 The term "biometrics" has 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 idenfication systems use a card or personal identificatin number
(PIN) for initial identification. The biometric measurement is used to verify
that the individual holding the card or entering the PIN is the legitimate
owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in
computer data banks 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 infra-red cameras, a unique
heat distribution pattern is seen. The different densities of bone, skin, fat
and blood vessels all contribute to the individual's personal "heat
signature." 53
In the last few decades, technology has progressed at a galloping rate.
Some science fictions are now science facts. Today, biometrics is no longer
limited to the use of fingerprint to identify an individual. It is a new
science that uses various technologies in encoding any and all biological
characteristics of an individual for identification. It is noteworthy that A.O.
No. 308 does not state what specific biological characteristics and what
particular biometrics technology shall be used to identify people who will
seek its coverage. Considering the banquest of options available to the
implementors of A.O. No. 308, the fear that it threatens the right to
privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show
that it does not state whether encoding of data is limited to biological
information alone for identification purposes. In fact, the Solicitor General
claims that the adoption of the Identification Reference System will
contribute to the "generation of population data for development
planning." 54 This is an admission that the PRN will not be used solely for
identification but the generation of other data with remote relation to the
avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No.
308 can give the government the roving authority to store and retrieve
information for a purpose other than the identification of the individual
through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308
cannot be undarplayed as the dissenters do. Pursuant to said
administrative order, an individual must present his PRN everytime he
deals with a government agency to avail of basic services and security. His
transactions with the government agency will necessarily be recorded —
whether it be in the computer or in the documentary file of the agency.
The individual's file may include his transactions for loan availments,
income tax returns, statement of assets and liabilities, reimbursements for
medication, hospitalization, etc. The more frequent the use of the PRN,
the better the chance of building a huge formidable informatin base
through the electronic linkage of the files. 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 infomation 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 he handled. It
does not provide who shall control and access the data, under what
circumstances and for what purpose. These factors are essential to
safeguard the privacy and guaranty the integrity of the
information. 58 Well to note, the computer linkage gives other government
agencies access to the information. Yet, there are no controls to guard
against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder,
without fear of sanction or penalty, can make use of the data for whatever
purpose, or worse, manipulate the data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that
personal information which will be gathered about our people will only be
processed for unequivocally specified purposes. 60 The lack of proper
safeguards in this regard of A.O. No. 308 may interfere with the
individual's liberty of abode and travel by enabling authorities to track
down his movement; it may also enable unscrupulous persons to access
confidential information and circumvent the right against self-
incrimination; it may pave the way for "fishing expeditions" by
government authorities and evade the right against unreasonable
searches and seizures. 61 The possibilities of abuse and misuse of the PRN,
biometrics and computer technology are accentuated when we consider
that the individual lacks control over what can be read or placed on his ID,
much less verify the correctness of the data encoded. 62 They threaten the
very abuses that the Bill of Rights seeks to prevent. 63
The ability of 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 date is simple. When
information of a privileged character finds its way into the computer, it
can be extracted together with other data on the subject. 66 Once
extracted, the information is putty in the hands of any person. The end of
privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The
Court will not be true to its role as the ultimate guardian of the people's
liberty if it would not immediately smother the sparks that endanger their
rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the Natioal ID and the
use of biometrics technology as it stands on quicksand. The
reasonableness of a person's expectation of privacy depends on a two-part
test: (1) whether by his conduct, the individual has exhibited an
expectation of privacy; and (2) whether this expectation is one that society
recognizes as reasonable. 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 by the IACC cannot remedy this fatal
defect. Rules and regulations merely implement the policy of the law or
order. On its face, A.O. No. gives the IACC virtually infettered discretion to
determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act. No. 591 penalizes the
disclosure by any person of data furnished by the individual to the NSO
with imprisonment and fine. 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 cocludes that these purposes justify the
incursions into the right to privacy for the means are rationally related to
the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 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 hod that when the integrity of a fundamental right is at stake, this
court will give the challenged law, administrative order, rule or regulation
a stricter scrutiny. It will not do for the authorities to invoke the
presumption of regularity in the performance of official duties. Nor is it
enough for the authorities to prove that their act is not irrational for a
basic right can be diminished, if not defeated, even when the government
does not act irrationally. They must satisfactorily show the presence of
compelling state interests and that the law, rule or regulation is narrowly
drawn to preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights and
to prevent authoritarianism. In case of doubt, the least we can do is to
lean towards the stance that will not put in danger the rights protected by
the Constitutions.
The case of Whalen v. Roe 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 Substance Act of 1972 required physicians to identify parties
obtaining prescription drugs enumerated in the statute, i.e., drugs with a
recognized medical use but with a potential for abuse, so that the names
and addresses of the patients can be recorded in a centralized computer
file of the State Department of Health. The plaintiffs, who were patients
and doctors, claimed that some people might decline necessary
medication because of their fear that the computerized data may be
readily available and open to public disclosure; and that once disclosed, it
may stigmatize them as drug addicts. 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
disclosuer of personal matter is an aspect of the right to privacy, the
statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the
enforcement of laws designed to minimize the misuse of dangerous drugs.
The patient-identification requirement was a product of an orderly and
rational legislative decision made upon recommmendation by a specially
appointed commission which held extensive hearings on the matter.
Moreover, the statute was narrowly drawn and contained numerous
safeguards against indiscriminate disclosure. The statute laid down the
procedure and requirements for the gathering, storage and retrieval of the
informatin. It ebumerated who were authorized to access the data. It also
prohibited public disclosure of the data by imposing penalties for its
violation. In view of these safeguards, the infringement of the patients'
right to privacy was justified by a valid exercise of police power. As we
discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the
Court is not  per se agains the use of computers to accumulate, store,
process, retvieve and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency which both
government and private industry seek. Many information system in
different countries make use of the computer to facilitate important social
objective, such as better law enforcement, faster delivery of public
services, more efficient management of credit and insurance programs,
improvement of telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the computer could help good
administration by making accurate and comprehensive information for
those who have to frame policy and make key decisions. 82 The benefits of
the computer has revolutionized information technology. It developed the
internet, 83 introduced the concept of cyberspace 84 and the information
superhighway where the individual, armed only with his personal
computer, may surf and search all kinds and classes of information from
libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does
not bar all incursions into individual privacy. The right is not intended to
stifle scientific and technological advancements that enhance public
service and the common good. It merely requires that the law be narrowly
focused 85 and a compelling interest justify such intrusions. 86 Intrusions
into the right must be accompanied by proper safeguards and well-defined
standards to prevent unconstitutional invasions. We reiterate that any law
or order that invades individual privacy will be subjected by this Court to
strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc,
to wit:
The concept of limited government has always included
the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is
indeed one of the basic disctinctions between absolute
and limited government. Ultimate and pervasive control of
the individual, in all aspects of his life, is the hallmark of
the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this
private sector — protection, in other words, of the dignity
and integrity of the individual — has become increasingly
important as modern society has developed. All the forces
of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy
and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private
life marks the difference between a democratic and a
totalitarian society. 87
IV
The right to privacy is one of the most threatened rights of man living in a
mass society. The threats emanate from various sources — governments,
journalists, employers, social scientists, etc. 88 In th case at bar, the threat
comes from the executive branch of government which by issuing A.O. No.
308 pressures the people to surrender their privacy by giving information
about themselves on the pretext that it will facilitate delivery of basic
services. Given the record-keeping power of the computer, only the
indifferent fail to perceive the danger that A.O. No. 308 gives the
government the power to compile a devastating dossier against
unsuspecting citizens. It is timely to take note of the well-worded warning
of Kalvin, Jr., "the disturbing result could be that everyone will live
burdened by an unerasable record of his past and his limitations. In a way,
the threat is that because of its record-keeping, the society will have lost
its benign capacity to forget." 89 Oblivious to this counsel, the dissents still
say we should not be too quick in labelling the right to privacy as a
fundamental right. We close with the statement that the right to privacy
was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No.
308 entitled "Adoption of a National Computerized Identification
Reference System" declared null and void for being unconstitutional.
SO ORDERED.
August 8, 2017
G.R. No. 187257
REPUBLIC OF THE PHILIPPINES, represented by the OFFICE OF THE
SOLICITOR GENERAL (OSG) as the PEOPLE'S TRIBUNE, and the NATIONAL
POWER BOARD, Petitioners,
vs.
HON. LUISITO G. CORTEZ, Presiding Judge, Regional Trial Court, Branch 84,
Quezon City, ABNER P. ELERIA, MELITO B. LUPANGCO, NAPOCOR
EMPLOYEES CONSOLIDATED UNION (NECU), and NAPOCOR EMPLOYEES
AND WORKERS UNION (NEWU), Respondents,
x-----------------------x
G.R. No. 187776
ROLANDO G. ANDAYA, in his capacity as Secretary of the Department of
Budget and Management and member of the Board of Directors of the
National Power Corporation, Petitioner,
vs.
HON. LUISITO G. CORTEZ, Presiding Judge, Regional Trial Court, Branch 84,
Quezon City, ABNER P. ELERIA, MELITO B. LUPANGCO, NAPOCOR
EMPLOYEES CONSOLIDATED UNION and NAPOCOR EMPLOYEES AND
WORKERS UNION, Respondents.
RESOLUTION
LEONEN, J.:
This resolves the 16,500 Workers' Solicitous Motion for
Reconsideration1 filed by respondents National Power Corporation
Employees Consolidated Union (NECU) and the National Power Corporation
Employees and Workers Union (NEWU) of this Court's February 7, 2017
Decision.2 This Decision vacated and set aside the November 28, 2008
Decision,3 March 20, 2009 Joint Order, 4 and March 23, 2009 Writ of
Execution5 of Branch 84, Regional Trial Court, Quezon City in Civil Case No.
Q-07-61728.
To recall, a Petition for Mandamus 6 was filed by NECU and NEWU with
Branch 84, Regional Trial Court, Quezon City, praying that the National
Power Corporation (NAPOCOR) be ordered to release the Cost of Living
Allowance (COLA) and Amelioration (AA) allegedly withheld from them from
July 1, 1989 to March 19, 1999. 7 NECU and NEWU pointed to this Court's
pronouncements in De Jesus v. Commission on Audit, 8 Philippine Ports
Authority Employees Hired After July 1, 1998 v. Commission on
Audit,9 and Metropolitan Waterworks and Sewerage System v. Bautista, et
al. 10 They believed that they were among the government employees
whose COLA and AA were not factually integrated into their basic salary
upon the implementation of Republic Act No. 6758. 11
The trial court's Decision dated November 28, 2008 and Joint Order dated
March 20, 2009 granted their Petition and awarded a total of
P6,496,055,339.98 as alleged back COLA and AA with ₱704,777,508.60 as
legal interest.12 A Writ of Execution was issued on March 23, 2009, ordering
its immediate release and payment.13
The Office of the Solicitor General, acting as the People's Tribune, and then
Secretary of Budget and Management Rolando G. Andaya separately filed
Petitions for Certiorari14 with this Court, seeking to nullify the trial court's
issuances. The Office of the Solicitor General, in particular, prayed for the
issuance of a Temporary Restraining Order and/or a Writ of Preliminary
Injunction to enjoin the implementation of the Writ of Execution dated
March 23, 2009,15 which this Court granted in the Resolution 16 dated April
15, 2009.
On February 7, 2017, this Court rendered a Decision 17 granting the Petitions
for Certiorari. This Court held, among others, that respondents NECU's and
NEWU's COLA and AA for the period July 1, 1989 to March 19, 1999 were
already factually integrated into their basic salaries, by virtue of Section 12
of Republic Act No. 675818 and Memorandum Order No. 198, series of
1994.19 The dispositive portion of the Decision read:
WHEREFORE, the Petitions for Certiorari and Prohibition in GR. Nos. 187257
and 187776 are GRANTED. The Decision dated November 28, 2008, Joint
Order dated March 20, 2009, and Writ of Execution dated March 23, 2009 of
the Regional Trial Court of Quezon City, Branch 84 in Civil Case No. Q-07-
61728 are VACATED and SETASIDE. The Temporary Restraining Order dated
April 15, 2009 is made PERMANENT.20 (Emphasis in the original)
In their 16,500 Workers' Solicitous Motion for
21
Reconsideration,  respondents NECU and NEWU insist that law,
jurisprudence, and evidence support their contention that their COLA and
AA were deducted from their salaries from July 1, 1989 to March 19,
1999.22 In particular, they distinguish NAPOCOR workers into three (3)
categories. The first category includes workers already employed when
Republic Act No. 6758 took effect and whose COLA and AA were integrated
into their basic salaries only up to 1993. The second category covers those
hired after Republic Act No. 6758 took effect and whose COLA and AA were
allegedly deducted from 1989 to 1999. The third category consists of
employees hired after the effectivity of Republic Act No. 7648 and whose
COLA and AA were allegedly deducted from 1994 to 1999. 23 They present
"Exhibit C,"24 insisting that this is factual evidence that their basic pay for the
disputed period did not include their COLA and AA. 25
On the other hand, the Office of the Solicitor General counters that the
issues raised by respondents NECU and NEWU have already been "amply
and exhaustively addressed"26 in this Court's February 7, 2017 Decision, and
thus, would merit its immediate denial. 27
Respondents NECU and NEWU attempt to sway this Court by insisting that
those hired after Republic Act No. 6758 took effect have never received
their COLA and AA and that these allowances were deducted from their
basic pay. This issue, however, has already been discussed and passed upon
in this Court's February 7, 2017 Decision:
Thus, Philippine Ports Authority (PPA) Employees Hired After July 1,
1989 clarified that those who were already receiving COLA and AA as of July
1, 1989, but whose receipt was discontinued due to the issuance of DBM-
CCC No. 10, were entitled to receive such allowances during the period of
the Circular's ineffectivity, or from July l, 1989 to March 16, 1999. The
same factual premise was present in Metropolitan Waterworks and
Sewerage System, wherein this Court reiterated that those already
receiving COLA as of July l, 1989 were entitled to its payment from 1989 to
1999.
In neither of these cases did this Court suggest that the compensation of the
employees after the promulgation of Republic Act No. 6758 would
be increased with the addition of the COLA and AA. If the total
compensation package were the same, then clearly the COLA or AA, or both
were factually integrated.
….
Republic Act No. 6758 remained effective during the period of ineffectivity
of DBM-CCC No. 10. Thus, the COLA and AA of NAPOCOR officers and
employees were integrated into the standardized salaries effective July 1,
1989 pursuant to Section 12 of Republic Act No. 6758, which provides:
Section 12. Consolidation of Allowances and Compensation. - All allowances,
except for representation and transportation allowances; clothing and
laundry allowances; subsistence allowance of marine officers and crew on
board government vessels and hospital personnel; hazard pay; allowances
of foreign service personnel stationed abroad; and such other additional
compensation not otherwise specified herein as may be determined by the
DBM, shall be deemed included in the standardized salary rates herein
prescribed. Such other additional compensation, whether in cash or in kind,
being received by incumbents only as of July 1, 1989 not integrated into the
standardized salary rates shall continue to be authorized.
Existing additional compensation of any national government official or
employee paid from local funds of a local government unit shall be
absorbed into the basic salary of said official or employee and shall be paid
by the National Government.
Unlike in Philippine Ports Authority (PPA) Employees Hired After July 1,
1989, there would be no basis to distinguish between those hired before
July 1, 1989 and those hired after July 1, 1989. Both sets of NAPOCOR
employees were continuously receiving their COLA and AA since these
allowances were already factually integrated into the standardized salaries
pursuant to Section 12 of Republic Act No. 6758.
In order to settle any confusion, we abandon any other interpretation of our
ruling in Philippine Ports Authority (PP A) Employees Hired After July 1,
1989 with regard to the entitlement of the NAPOCOR officers and
employees to the back payment of COLA and AA during the period of legal
limbo. To grant any back payment of COLA and AA despite their factual
integration into the standardized salary would cause salary distortions in the
Civil Service. It would also provide unequal protection to those employees
whose COLA and AA were proven to have been factually discontinued from
the period of Republic Act No. 6758's effectivity.
Generally, abandoned doctrines of this Court are given only prospective
effect. However, a strict interpretation of this doctrine, when it causes a
breach of a fundamental constitutional right, cannot be countenanced. In
this case, it will result in a violation of the equal protection clause of the
Constitution.
Furthermore, Philippine Ports Authority (PPA) Employees Hired After July 1,
1989 only applies if the compensation package of those hired before the
effectivity of Republic Act No. 6758 actually decreased; or in the case of
those hired after, if they received a lesser compensation package as a result
of the deduction of COLA or AA. Neither situation applies in this
case.28 (Emphasis and underscoring in the original, citations omitted)
Those who were hired after the implementation of Republic Act No. 6758,
or after July 1, 1989, did not receive a lesser compensation package than
those who were hired before July 1, 1989. To emphasize, respondents
NECU's and NEWU's COLA and AA were integrated into their basic salary by
virtue of Section 12 of Republic Act No. 6758, which provides:
Section 12. Consolidation of Allowances and Compensation. - All allowances,
except for representation and transportation allowances; clothing and
laundry allowances; subsistence allowance of marine officers and crew on
board government vessels and hospital personnel; hazard pay; allowances
of foreign service personnel stationed abroad; and such other additional
compensation not otherwise specified herein as may be determined by the
DBM, shall be deemed included in the standardized salary rates herein
prescribed. Such other additional compensation, whether in cash or in kind,
being received by incumbents only as of July 1, 1989 not integrated into the
standardized salary rates shall continue to be authorized.
Existing additional compensation of any national government official or
employee paid from local funds of a local government unit shall be
absorbed into the basic salary of said official or employee and shall be paid
by the National Government.
Section 12 has never been ineffective or rendered unconstitutional. Thus, all
allowances not covered by the exceptions to Section 12 are presumed to
have been integrated into the basic standardized pay. The receipt of a
transition allowance is not proof that only those who were hired before July
1, 1989 received their COLA and AA. As this Court explained in its February
7, 2017 Decision, the transition allowance was given only to comply with the
non-diminution clause of the law. It was never meant as an additional
compensation to the standardized pay:
Prior to Republic Act No. 6758, or on June 30, 1989, Mr. Camagong was
receiving a total salary of ₱8,506.30. Upon the effectivity of the law, or on
July 1, 1989, all allowances, except those specifically excluded, were
deemed integrated into his basic salary. To stress, all allowances previously
granted were already deemed integrated into the standardized salary rates
by July 1, 1989.
As shown above, Mr. Camagong's adjusted salary of ₱4,386.00 already
included all allowances previously received. This amount is obviously less
than his previous total compensation of ₱8,506.30. The law, however,
provided a remedy in the form of a transition allowance. NAPOCOR
Employees Consolidated Union (NECU) explains:
When Rep. Act No. 6758 became effective on July 1, 1989, the new position
title of Camagong was Plant Equipment Operator B with a salary grade of 14
and with a monthly salary of ₱4,386.00.
Admittedly, in the case of Camagong, his monthly gross income of ₱8,506.30
prior to the effectivity of Rep. Act No. 6758, was thereafter reduced to only
₱4,386.00. The situation, however, is duly addressed by the law itself. For,
while Rep. Act No. 6758 aims at standardizing the salary rates of
government employees, yet the legislature has adhered to the policy of
non-diminution of pay when it enacted said law. So it is that Section 17
thereof precisely provides for a "transition allowance," as follows:
Section 17. Salaries of Incumbents. Incumbents of positions presently
receiving salaries and additional compensation/fringe benefits including
those absorbed from local government units and other emoluments, the
aggregate of which exceeds the standardized salary rate as herein
prescribed, shall continue to receive such excess compensation, which shall
be referred to as transition allowance. The transition allowance shall be
reduced by the amount of salary adjustment that the incumbent shall
receive in the future.
The transition allowance referred to herein shall be treated as part of the
basic salary for purposes of computing retirement pay, year-end bonus and
other similar benefits.
As basis for computation of the first across-the-board salary adjustment of
incumbents with transition allowance, no incumbent who is receiving
compensation exceeding the standardized salary rate at the time of the
effectivity of this Act, shall be assigned a salary lower than ninety percent
(90%) of his present compensation or the standardized salary rate,
whichever is higher. Subsequent increases shall be based on the resultant
adjusted salary.
Evidently, the transition allowance under the aforequoted provision was
purposely meant to bridge the difference in pay between the pre-R.A. 6758
salary of government employees and their standardized pay rates
thereafter, and because non-diminution of pay is the governing principle in
Rep. Act No. 6758, Camagong, pursuant to Section 17 of that law was given
a transition allowance of ₱4,120.30. This explains why, in the case of
Camagong, his gross monthly income remained at ₱8,506.30, as can be seen
in his NP ASA, clearly showing that the allowances he used to receive prior
to the effectivity of Rep. Act No. 6758, were integrated into his standardized
salary rate.29 (Emphasis in the original, citations omitted)
This Court likewise clarified that upon the implementation of Republic Act
No. 7648,30 NAPOCOR workers were covered by a new compensation plan.
All prior questions on the non-publication of Department of Budget and
Management Corporate Compensation Circular No. 10 would no longer
apply to the determination of whether COLA and AA were withheld.
Furthermore, the new compensation plan under Republic Act No. 7648
already incorporated all benefits previously integrated, including the COLA
and AA:
The enactment of Republic Act No. 7648, or the Electric Power Crisis Act of
1993 authorized the President of the Philippines to reorganize NAPOCOR
and to upgrade its compensation plan. From this period, NAPOCOR ceased
to be covered by the standardized salary rates of Republic Act No. 6758.
Pursuant to Republic Act No. 7648, then President Fidel V. Ramos issued
Memorandum Order No. 198, providing for a different position classification
and compensation plan for NAPOCOR employees to take effect on January
1, 1994.1âwphi1 The compensation plan states:
SEC. 2. COMPENSATION PLAN. The NPC Compensation Plan consists of the
following:
2.1 Total monthly compensation structure as shown in Annex "A"
which shall include:
2.1.1 Monthly basic salary schedule as shown in Annex "B";
and
2.1.2 Schedule of monthly allowances as provided in Annex
"C" which include existing government mandated
allowances such as PERA and Additional Compensation, and
Rice Subsidy, and Reimbursable Allowances, i.e., RRA, RTA
and RDA, provided however, that the NP Board is hereby
authorized to further rationalize and/or revise the rates for
such allowances as may be necessary; and
2.2 "Pay for Performance". Pay for Performance is a variable
component of the total annual cash compensation consisting of
bonuses and incentives but excluding the 13th month pay, earned
on the basis of corporate and/or group performance or productivity,
following a Productivity Enhancement Program (PEP), and step-
increases given in recognition of superior individual performance
using a performance rating system, duly approved by the NP Board.
The corporate or group productivity or incentive bonus shall range
from zero (0) to four (4) months basic salary, to be given in lump-
sum for each year covered by the PEP. The in-step increases on the
other hand, once granted, shall form part of the monthly basic
salary.
...
Memorandum Order No. 198, series of 1994 only includes the basic salary
and the following allowances: Personal Economic Relief Allowance (PERA)
and Additional Compensation, Rice Subsidy, arid Reimbursable Allowances.
Republic Act No. 7648 also provides that only the President of the
Philippines can upgrade the compensation of NAPOCOR personnel:
SECTION 5. Reorganization of the National Power Corporation. - The
President is hereby empowered to reorganize the NAPOCOR, to make it
more effective, innovative, and responsive to the power crisis. For this
purpose, the President may abolish or create offices; split, group, or merge
positions; transfer functions, equipment, properties, records and personnel;
institute drastic cost-cutting measures and take such other related actions
necessary to carry out the purpose herein declared. Nothing in this Section
shall result in the diminution of the present salaries and benefits of the
personnel of the NAPOCOR: Provided, That any official or employee of the
NAPOCOR who may be phased out by reason of the reorganization
authorized herein shall be entitled to such benefits as may be determined
by the Board of Directors of the NAPOCOR, with the approval of the
President.
The President may upgrade the compensation of the personnel of the
NAPOCOR at rates comparable to those prevailing in privately-owned power
utilities to take effect upon approval by Congress of the NAPOCOR's budget
for 1994.
In issuing Memorandum No. 198, series of 1994, the President determined
that the New Compensation Plan for the NAPOCOR personnel shall include
the basic salary, PERA and Additional Compensation, Rice Subsidy, and
Reimbursable Allowances. The discretion of the President to specify the new
salary rates, however, is qualified by the statement: "Nothing in this Section
shall result in the diminution of the present salaries and benefits of the
personnel of the NAPOCOR." This qualification is repeated in Section 7 of the
Memorandum:
SEC. 7. NON-DIMINUTION IN PAY. Nothing in this Order shall result in the
reduction of the compensation and benefits entitlements of NPC personnel
prior to the effectivity of this Order.
The Board of Directors is authorized to rationalize or revise only the rates
for PERA and Additional Compensation, Rice Subsidy, and Reimbursable
Allowances:
2.1.2 Schedule of monthly allowances as provided in Annex "C" which
include existing government[-]mandated allowances such as PERA and
Additional Compensation, and Rice Subsidy, and Reimbursable Allowances,
i.e., RRA, RTA and RDA, provided however, that the NP Board is hereby
authorized to further rationalize and/or revise the rates for such
allowances as may be necessary[.]
As previously discussed, COLA and AA were already deemed integrated into
the basic standardized salary from July 1, 1989 to December 31, 1993. These
allowances need not be separately granted. All basic salaries by December
31, 1993 already included the COLA and AA. 31 (Emphasis in the original,
citations omitted)
The alleged "Exhibit C" presented by respondents NECU and NEWU as
evidence to prove that the COLA and AA were factually deducted from their
basic pay is unmeritorious. It appears to be a collection list submitted before
the Regional Trial Court in compliance with the Writ of Execution dated
March 23, 2009. The list specifies names of employees, a computation of
their alleged entitlements to their COLA and AA, and deductions for
attorney's fees and docket fees.32 However, these computations were made
only after the trial court had ruled in their favor. This Court has already
ruled that the trial court gravely abused its discretion in granting the
judgment award. Thus, these computations do not prove conclusively that
respondents NECU's and NEWU's COLA and AA were withheld from July 1,
1989 to March 19, 1999.
Respondents NECU and NEWU, all 16,500 of them, were in a position to
submit to this Court any pay slip or Notice of Position Allocation and Salary
Adjustment showing an actual deduction of the COLA and AA from July 1,
1989 to March 19, 1999. They have failed to do so. As it stands, respondents
NECU and NEWU have failed to prove that their COLA and AA were
factually deducted from their basic pay.
Interestingly, while the 16,500 Workers' Solicitous Motion for
Reconsideration was pending, two (2) motions were filed by the law firm of
Angara Abella Concepcion Regala & Cruz (ACCRA), formally entering its
appearance as lead counsel on behalf of respondents NECU and NEWU. 33
These motions were an Entry of Appearance with Omnibus Motion for Leave
of Court and Time to File Supplemental Motion for Reconsideration 34 and
a Motion for Leave to File and Admit Attached Supplemental Motion for
Reconsideration. 35
The ACCRA pleadings do not contain a conforme from respondents NECU
and NEWU or a withdrawal of appearance from their counsel, Atty.
Napoleon Uy Galit (Atty. Galit). It also appears from ACCRA's affidavits of
service that there were no copies furnished to Atty. Galit or to respondents
NECU and NEWU. While motions for reconsideration are not among the
pleadings required to be verified, 36 this circumstance is highly unusual,
especially considering that the grant of a motion for reconsideration in this
case may result in a more than ₱7 billion judgment award.
Nonetheless, in view of the denial of the 16,500 Workers' Solicitous Motion
for Reconsideration, this Court finds that it is no longer necessary to pass
upon ACCRA's pleadings.
WHEREFORE, the 16,500 Workers' Solicitous Motion for Reconsideration
is DENIED with FINALITY as the basic issues have already been passed upon
in this Court's February 7, 2017 Decision. No further pleadings or motions
shall be entertained in this case. Let entry of final judgment be issued
immediately.
The Entry of Appearance with Omnibus Motion for Leave of Court and Time
to File Supplemental Motion for Reconsideration and the Motion for Leave
to File and Admit Attached Supplemental Motion for Reconsideration
are NOTED WITHOUT ACTION in view of the denial of the 16,500 Workers'
Solicitous Motion for Reconsideration.
SO ORDERED.
G.R. No. 164196              June 22, 2007
CONSTANTINO T. GUMARU, petitioner,
vs.
QUIRINO STATE COLLEGE, respondent.
DECISION
PUNO, C.J.:
Assailed in this petition for review is the Decision 1 dated November 25, 2003
of the Court of Appeals in CA-G.R. SP No. 72603, which reversed and set
aside the Order dated June 26, 2002 of the Regional Trial Court (RTC) of
Quezon City, Branch 88, denying the motion to quash the writ of execution
issued in Civil Case No. Q-97-32470, as well as its Resolution dated June 17,
2004, which denied petitioner’s motion for reconsideration.
The facts are as follows:
On June 25, 1985, C.T. Gumaru Construction and Quirino State College, an
educational institution organized and existing under Batas
Pambansa (B.P.) Blg. 440,2 through its president, Julian A. Alvarez, entered
into an Agreement3 for the construction of the state college’s building in
Diffun, Quirino Province. Construction was done in stages and was covered
by supplemental agreements, because funding depended on the state
college’s annual budget allocation and fund releases from the government.
On October 17, 1997, Constantino T. Gumaru, owner and proprietor of C.T.
Gumaru Construction, filed a complaint for damages 4 before the RTC of
Quezon City against the state college and Julian A. Alvarez, asking for (1)
₱368,493.35, the expected profits which he would have realized from the
construction of an unfinished portion of the project which was allegedly
awarded by the defendants to another contractor in violation of his
preferential right to finish the project; (2) ₱592,136.51, the escalation costs
of construction materials and supplies; (3) ₱50,000.00, the value of
plaintiff’s bodega allegedly demolished by the defendants; and (4),
₱200,000.00 for moral and exemplary damages, attorney’s fees and costs of
litigation.5
On May 8, 1998, Atty. Carlos T. Aggabao, purportedly acting as counsel for
the defendants, moved to dismiss the complaint on the ground of improper
venue. The motion was denied. Defendants were directed to file an answer.
When they failed to answer within the prescribed period, they were
declared in default and plaintiff was allowed to present evidence ex parte.
On February 22, 2001, the trial court decided the case in favor of the
plaintiff, viz:
WHEREFORE, x x x judgment is rendered in favor of the plaintiff Gumaru and
against the defendants College and Alvarez directing the latter to JOINTLY
and SEVERALLY pay the former as follows:
1. The sum ₱368,493.35 for the First Cause of action;
2. The amount of ₱592,136.51 for the Second Cause of action;
3. The amount of ₱50,000.00 for the Third Cause of action;
4. ₱100,000.00 for moral damages and ₱100,000 for attorney’s fees, plus
costs.
5. The first three awards are with legal interests reckoned
from the filing of this case until the amounts are paid in
6
full.
Defendants failed to appeal from the decision, a copy of which was duly
served on Atty. Aggabao on March 6, 2001.7 The decision became final and
executory, and plaintiff moved for the issuance of a writ of execution. On
December 5, 2001, a Writ of Execution 8 was issued, directing the Ex-Officio
Provincial Sheriff of Quirino Province to seize the personal properties or, if
insufficient, the real properties of the defendants to satisfy the judgment
awards. The awards amounted to ₱1,739,725.30, inclusive of interests and
sheriff’s fees.
On January 11, 2002, the Office of the Solicitor General (OSG) entered its
appearance for the first time as counsel for the defendants. At the same
time, it filed a "Motion to Quash Writ of Execution" on the following
grounds: (a) defendants were not duly represented in court, since the OSG
was not notified of the proceedings; and (b) writs of execution may not be
issued against government funds and properties to satisfy court judgments.
Meanwhile, a Sheriff’s Notice of Levy and Auction Sale 9 was issued against
two (2) parcels of land in the name of Quirino State College, 10 viz:
WHEREAS, by virtue of a Writ of Execution issued by the Hon. Abednego O.
Adre, Presiding Judge of the Regional Trial Court, x x x Branch 38, Quezon
City x x x the undersigned provincial Sheriff of Quirino in order to satisfy the
amount of ONE MILLION SEVEN HUNDRED THIRTY NINE THOUSAND SEVEN
HUNDRED TWENTY FIVE AND 30/100 PESOS (₱1,739,725.30) with interest
thereon from the date of execution until fully paid aside from other
incidental expenses incurred in connection with enforcement of this Writ of
Execution is HEREBY LEVIED upon all rights, interest and participation of the
defendant over the property described below, to wit:
LAND
A parcel of land under ARP. No. 00411-15003 in the name of Quirino State
College, Diffun, Quirino of which land is situated at Bonifacio, Diffun,
Quirino, Philippines, containing an area of THIRTY THOUSAND (30,000)
SQM. more or less.
LAND
A portion of land under ARP. No. 00415-16002 in the name of Quirino State
College, Diffun, Quirino of which land situated at Bonifacio, Diffun, Quirino,
Philippines, containing an area of 11.13110161 HA. more or less.
In an "Urgent Motion" dated March 13, 2002,11 the OSG reiterated its plea
for the quashal of the writ of execution and asked the court to take judicial
notice of Supreme Court Administrative Circular No. 10-2000, 12 as well as
Commission on Audit (COA) Resolution No. 2000-366 13 dated December 19,
2000, which finally adjudged plaintiff liable to the state college for
₱4,681,670.00 in overpayments, and liquidated damages for delay in the
construction of the college building.
The trial court denied the motion to quash the writ of execution. 14 Without
ruling on the issue of the defendants’ alleged lack of legal representation,
the court ruled that the properties of the state college may be seized under
the writ of execution, since it is an incorporated agency of the government
given specific powers to sue and be sued. A separate appropriation to satisfy
the judgment awards was not considered necessary, because the state
college’s charter provides that funds for the construction and repair of its
buildings, machinery, equipment, and facilities shall be taken from its
annual appropriation.
The OSG filed a petition for certiorari before the Court of Appeals. On
November 25, 2003, the Court of Appeals granted the petition. 15 In quashing
the writ of execution, the Court of Appeals ruled that although the funds
and properties of government agencies with personalities separate and
distinct from the government are not exempt from execution or
garnishment, the rule does not apply where the incorporated government
agency concerned is performing a vital governmental function, like herein
state college. In such cases, the money claim should be filed first with the
COA as provided in Presidential Decree No. 1445, otherwise known as the
Government Auditing Code of the Philippines.
Gumaru’s motion for reconsideration was denied. Hence, this petition
raising the following issues:
I. Whether or not, upon the facts and circumstances obtaining herein, the
consent given by the State to respondent to sue and be sued is plenary and
not limited only to proceedings anterior to the stage of execution;
II. Whether or not the money claim subject of the case below is required to
be filed first with the Commission on Audit (COA);
III. Whether or not the enforcement of the money judgment here involved is
subject to rules and procedures under Sections 49-50 of Presidential Decree
No. 1445;
IV. Whether or not, being an incorporated agency of the Government,
respondent’s liability is controlled by the rulings on incorporated or
chartered government agencies;
V. Whether or not further appropriation is required for the enforcement of
the money judgment against respondent herein; and
VI. Whether or not respondent’s representation below by counsel of its own
choice instead of by the OSG was proper.
Stated differently, the proper issues to be resolved are: (a) whether
respondent state college was properly represented before the trial court;
(b) if in the negative, whether the lack of proper legal representation was
enough to nullify the proceedings; and (c) whether the properties of
respondent state college may be seized under the writ of execution issued
by the trial court.
On the issue of legal representation, Section 35, Chapter 12, Title III, Book IV
of Executive Order No. 292, otherwise known as the Administrative Code of
1987, provides:
The Office of the Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents in
any litigation, proceeding, investigation or matter requiring the services of
lawyers. When authorized by the President or head of the office concerned,
it shall also represent government owned or controlled corporations. The
Office of the Solicitor General shall constitute the law office of the
Government and, as such, shall discharge duties requiring the services of
lawyers. x x x x
Under the foregoing, the OSG is mandated to act as the law office of the
government, its agencies, instrumentalities, officials and agents in any
litigation or proceeding requiring the services of a lawyer. 16 With respect to
government-owned or controlled corporations (GOCCs), the OSG shall act as
counsel only when authorized by the President or by the head of the office
concerned. The principal law office of GOCCs, as provided in Section 10,
Chapter 3, Title III, Book IV, of the Administrative Code of 1987, 17 is the
Office of the Government Corporate Counsel (OGCC).
In the case at bar, respondent state college is classified under the Code as a
chartered institution,18 viz:
(12) Chartered institution refers to any agency organized or operating under
a special charter, and vested by law with functions relating to specific
constitutional policies or objectives. This term includes the state universities
and colleges and the monetary authority of the State. (emphasis ours)
as opposed to a GOCC defined in the following segment, 19 viz:
(13) A government-owned or controlled corporation refers to any agency
organized as a stock or non-stock corporation, vested with functions relating
to public needs whether governmental or proprietary in nature, and owned
by the Government directly or through its instrumentalities either wholly,
or, where applicable as in the case of stock corporations, to the extent of at
least fifty-one (51) percent of its capital stock: Provided, That government-
owned or controlled corporations may be further categorized by the
Department of the Budget, the Civil Service Commission, and the
Commission on Audit for purposes of the exercise and discharge of their
respective powers, functions and responsibilities with respect to such
corporations.
Therefore, the proper statutory counsel of respondent state college is the
OSG. Legal representation by Atty. Carlos T. Aggabao, a private lawyer, was
clearly improper. In Gonzales v. Chavez, 20 we traced the statutory origins of
the OSG and ruled that its mandate to act as the principal law office of the
government is compulsory, viz:
In x x x tracing the origins of the Office of the Solicitor General to gain a
clear understanding of the nature of the functions and extent of [its] powers
x x x, it is evident that a policy decision was made in the early beginnings to
consolidate in one official the discharge of legal functions and services of
the government. x x x
x x x           x x x          x x x
x x x [T]he intent of the lawmaker was to give the designated official, the
Solicitor General, x x x the unequivocal mandate to appear for the
government in legal proceedings. Spread out in the laws creating the office
is the discernible intent which may be gathered from the term "shall," which
is invariably employed, from Act No. 136 (1901) to the more recent
Executive Order No. 292 (1987).
Under the principles of statutory construction, so familiar even to law
students, the term "shall" is nothing if not mandatory. 21 (emphases ours)
Thus, the Solicitor General cannot refuse to represent the government, its
agencies, instrumentalities, officials and agents without a just and valid
reason. He should not desist from appearing before the Court even in those
cases where his opinions may be inconsistent with the government or any of
its agents he is expected to represent. 22 As in the case of fiscals or
prosecutors, bias or prejudice and animosity or hostility do not constitute
legal and valid excuses for inhibition. 23 Unlike a practicing lawyer who has
the right to decline employment, a fiscal or prosecutor, or the Solicitor
General in the case at bar, cannot refuse to perform his functions without
violating his oath of office. 24 Refusal to perform the duty is compellable by a
writ of mandamus.25 On the other hand, government agencies were
admonished not to reject the services of the Solicitor General, or otherwise
fail or refuse to forward the papers of a case to the OSG for appropriate
action.26 Actions filed in the name of the Republic that are not initiated by
the OSG will be summarily dismissed.27 Moreover, the fee of the lawyer who
rendered legal service to the government in lieu of the OSG or the OGCC is
the personal liability of the government official who hired his services
without the prior written conformity of the OSG or the OGCC, as the case
may be.28 We explained the rationale for the compulsory nature of the
OSG’s mandate, in this wise:
The rationale x x x is not difficult to comprehend. Sound government
operations require consistency in legal policies and practices among the
instrumentalities of the State. x x x [A]n official learned in the law and skilled
in advocacy could best plan and coordinate the strategies and moves of the
legal battles of the different arms of the government. Surely, the economy
factor, too, must have weighed heavily in arriving at such a decision.
x x x           x x x          x x x
Sound management policies require that the government’s approach to
legal problems and policies formulated on legal issues be harmonized and
coordinated by a specific agency. The government owes it to its officials and
their respective offices, the political units at different levels, the public and
the various sectors, local and international, that have dealings with it, to
assure them of a degree of certitude and predictability in matters of legal
import.
From the historical and statutory perspectives x x x it is beyond cavil that it
is the Solicitor General who has been conferred the singular honor and
privilege of being the "principal law officer and legal defender of the
Government." One would be hard put to name a single legal group or law
firm that can match the expertise, experience, resources, staff and prestige
of the OSG which were painstakingly built up for almost a century.
x x x [E]ndowed with a broad perspective that spans the legal interests of
virtually the entire government officialdom, the OSG may be expected to
transcend the parochial concerns of a particular client agency and instead,
promote and protect the public weal. Given such objectivity, it can discern,
metaphorically speaking, the panoply that is the forest and not just the
individual trees. Not merely will it strive for a legal victory circumscribed by
the narrow interests of the client office or official, but as well, the vast
concerns of the sovereign which it is committed to serve. 29
The Solicitor General is thus expected to be the official who would best
uphold and protect the legal interests of the government. 30 His non-
representation of the government is dangerous and should not be allowed.
The magnitude of the non-representation by the OSG is nowhere more
apparent than in the case at bar. Instead of having been represented by an
"official learned in the law" who will "promote and protect the public weal"
taking into consideration the "vast concerns of the sovereign which it is
committed to serve," respondent state college was instead represented by a
private lawyer who made no move to protect its interests except to file a
motion to dismiss the complaint filed against the state college, which was
eventually denied by the trial court. No answer to the complaint was filed
notwithstanding due receipt of the order directing its filing, as a
consequence of which the state college was declared in default. The order
of default itself was not reconsidered, no move whatsoever having been
made in that direction. The plaintiff was allowed to present its evidence ex-
parte. When the decision was rendered adjudging the state college and its
co-defendant, Julian A. Alvarez, liable to the plaintiff, no effort was made to
appeal the decision notwithstanding due receipt of a copy thereof by Atty.
Aggabao on March 6, 2001. Thus, a writ of execution was issued against the
properties of the state college, which by this time remained as the sole
defendant, Julian A. Alvarez having died during the pendency of the case
and no proper substitution of parties having been made at the instance of
Atty. Aggabao. Clear, therefore, was the utter failure of justice insofar as
respondent state college is concerned. It was as if it was not represented by
counsel at all. While it may be argued that the officials of respondent state
college should have informed the OSG of the suit filed against the state
college, and that it was their fault or negligence that the OSG was not
informed in the first place, it is settled, however, that the principle of
estoppel does not operate against the government for the act of its agents
or their inaction.31 The State has to protect its interests and cannot be
bound by, or estopped by the mistakes or negligent acts of its officials or
agents, much more, non-suited as a result thereof. 32 The legality of legal
representation can be raised and questioned at any stage of the
proceedings.33
The circumstances of this case, therefore, justify the nullification of the
proceedings before the trial court, and the writ of execution issued as a
consequence thereof. The state college should be given the opportunity to
present its defenses with the benefit of its statutory counsel, the OSG. A
new trial would best serve the interests of justice. With this disquisition,
discussion of the other issues is not necessary.
IN VIEW WHEREOF, the petition is DENIED. This case is REMANDED to the
trial court for trial anew, with the Office of the Solicitor General appearing
as counsel for respondent Quirino State College. The Decision dated
February 22, 2001 of the Regional Trial Court of Quezon City, Branch 88, in
Civil Case No. Q-97-32470, and the assailed Decision dated November 25,
2003 and Resolution dated June 17, 2004 of the Court of Appeals in CA-G.R.
SP No. 72603 are, for this reason, VACATED and SET ASIDE.
SO ORDERED.