E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL
DEMAREE J.B. RAVAL
Not by executive order
Sunday, 11 03, 2002
In Ople vs Torres, 293 SCRA 141, the Supreme Court declared as unconstitutional Administrative Order (AO) 308 (1996), entitled: Adoption of a National Computerized Identification Reference System, on two grounds: It is a usurpation of the power of Congress to legislate, and that it impermissively intrudes on the constitutionally protected zone of privacy of individuals.
The first ground cited for the declaration of its unconstitutionality is already being remedied by the act of Congress at present in considering the proposed bill on the matter. In the Senate, the committee on constitutional amendments, revision of codes and laws will report out the Angara version of the bill once Congress resumes its session next week. This version enumerates the exclusive functional uses of the ID, and addresses the alleged intrusion of privacy by the adoption of various safeguards against the individual’s liberty of abode and travel; right against self-incrimination; and right against unreasonable search and seizure. Confidentiality and strict access to information provisions are extant in the bill, all designed to answer the need to have a tamper-proof ID system and the more compelling need to protect the liberty and privacy of persons.
The plan of Malacañang to implement a national ID system – in the absence of a law enacted by Congress – simply by the issuance of a an executive order, very much like AO 308, runs counter to the court ruling. Why the rush? After all, the Justice secretary himself already declared that the executive order would not be enforceable, as it is only by act of Congress that an ID system can be implemented.
Malacañang should not be so dense as to scoff at the force of the ruling in Ople vs Torres by issuing an executive order before Congress could even enact the required legislation. What it has to do now is certify to the necessity for the immediate enactment of the Senate bill, rather than legislate on its own and believe that it can implement the system without any problem.
The plan to implement the national ID system through an executive order is fraught with danger. In a meeting with 21 city mayors, Malacañang encouraged them to pilot-test the ID system in their respective jurisdictions. This is dangerous, considering the court’s admonition that an ID system that serves as a roving authority could very well impinge on the right to privacy of individuals. They would have to contend with about 1,800 local government units, excluding the barangays, which will be implementing their own system based on the executive order. The cost could be staggering, too. In Baguio City, for instance, it was reported that the ID system requires tourists to fall in line to secure their basic city identification clearances and for the city to monitor the movements of tourists, being its principal motivation. The use of the ID card for purposes of monitoring tourist necessarily must be based on the grant of very broad powers to check on identities and movements. Most important, it will involve an increased level of constant checking, or even a discriminatory checking procedure, the adequate safeguards for which local government units are hardy equipped to adopt.
With the absence of standards to guarantee uniform implementation, which an executive order cannot possibly define, or exact adherence with the force of law, one can only foresee a nation running riotous in its anti-terrorism drive, with agents of the State committing crimes far graver than what the ID system seeks to prevent. It is this kind of lame-brained approach to the ID system, a piece meal implementation even, that makes the system afoul with the law and the Constitution.
A system of identification that is all encompassing, that thrives on the current fixation to combat terrorism, is beyond the power of the Executive to implement.
The court had clearly stated in Ople vs Torres that the legislative power possessed by Congress embraces all subjects and extends to matters of general concern or common interest. On the other hand, the Executive enforces and administers the law, i.e., it carries out the laws in practical operation and enforces their due observance.
The court ruled a national ID system, a matter of general concern, requires a delicate adjustment of various contending State policies – the primacy of national security, and the extent of privacy interest against dossier gathering by the government.
An order issued by the Executive branch merely redefines the parameters of some basic rights of the citizens vis-à-vis the State as well as the line that separates the administrative power of the Executive to make rules and the legislative power of Congress. It ought to be very evident, therefore, that a national ID system deals with a subject that should be covered by a law enacted by Congress.
An executive order that is basically the same as AO 308 is being contemplated to be issued. The Administrative Code of 1987 defines “executive order” as an issuance of the Executive “providing the rules of a general or permanent character in implementation or execution of a constitutional or statutory power.” Simply put, the Executive must find authority in the Constitution or in a law enacted for the purpose by Congress as basis for issuance of the executive order. But there is none in the Constitution that empowers the Executive branch to issue such an order; neither is there a law enacted by Congress that gives the Executive branch such authority; Failing to find such an authority, the proposed executive order must necessarily be a nullity.
Finally, it was noted in Ople vs Torres that AO 308 does not state in clear and categorical terms how information gathered shall be handled, and it does not provide who shall control and access the data, under what circumstances and for what purposes. This deficiency is now adequately covered by the proposed Senate bill; but this is one area which an executive order cannot possibly remedy, given the statement from Malacañang that the rules governing the ID system will be similar to AO 308. Only by submitting the matter to the crucible of congressional deliberations can we be assured that the ID system to be implemented will stand the constitutional test set forth in Ople vs Torres.
With the exception of the Justice secretary, have the legal minds of Malacañang, after having read Ople vs Torres, seen a loophole in the ruling that we have not? Or is there something again in the works, the true cost for implementation having been estimated at P8 billion over seven years?
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