IT LAW

Case 1

[G.R. No. 117221. April 13, 1999]

IBM PHILIPPINES, INC., VIRGILIO L. PEA, and VICTOR V. REYES, petitioners, vs. NATIONAL
LABOR RELATIONS COMMISSION and ANGEL D. ISRAEL, respondents.

DECISION
MENDOZA, J.:

This is a petition for certiorari to set aside the decision,[1] dated April 15, 1994, of the National
Labor Relations Commission (NLRC) finding private respondent to have been illegally dismissed and
ordering his reinstatement and the payment of his wages from August 1991 until he is reinstated.
Petitioner IBM Philippines, Inc. (IBM) is a domestic corporation engaged in the business of selling
computers and computer services. Petitioners Virgilio L. Pea and Victor V. Reyes were ranking
officers of IBM during the period pertinent to this case.
On April 1, 1975, private respondent Angel D. Israel commenced employment with IBM as Office
Products Customer Engineer. For the next sixteen (16) years, he occupied two other positions in the
company,[2] received numerous awards,[3] and represented the company in various seminars and
conferences in and out of the country.[4]
On February 1, 1990, private respondent was assigned to the team supervised by petitioner
Reyes.
On June 27, 1991, petitioner Reyes handed a letter to private respondent informing the latter that
his employment in the company was to be terminated effective July 31, 1991 on the ground of
habitual tardiness and absenteeism. The letter states, thus:

June 27, 1991

Mr. Angel D. Israel

Present

Dear Angel,

This refers to our previous discussion regarding your habitual absences and tardiness the last of
which was on June 26, 1991.

Your records will attest to the fact that on several occasions, your attention has been called to your
habitual tardiness and non-observance of standing office procedures regarding attendance. Despite
several opportunities given to you, you cannot seem to reform your ways and attitude on the matter
of attendance. Considering that we are a service-oriented company, you can appreciate that we
cannot allow such a situation to continue lest we put the best interest of the Company in jeopardy.

Much to our regret, therefore, pleased (sic) be advised that the Company is terminating your
employment effective July 31, 1991.
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You are requested to report to Personnel Department at your earliest convenience for the settlement
of any money or benefits due you.

Very truly yours,

(Sgd) V.V. REYES

Business Manager

cc: L.L. Abano

Alleging that his dismissal was without just cause and due process, private respondent filed a
complaint with the Arbitration Branch of the Department of Labor and Employment (DOLE) on July
18, 1991.
In his position paper filed on September 6, 1991, he claimed that he was not given the
opportunity to be heard and that he was summarily dismissed from employment based on charges
which had not been duly proven.[5]
Petitioners denied private respondents claims. It was alleged that several conferences were
held by the management with private respondent because of the latters unsatisfactory performance in
the company and he was given sufficient warning and opportunity to reform and improve his attitude
toward attendance,[6] but to their regret, he never did. It was alleged that private respondent was
constantly told of his poor attendance record and inefficiency through the companys internal
electronic mail (e-mail) system. According to petitioners, this system allows paperless or
telematic[7] communication among IBM personnel in the company offices here and abroad. An
employee is assigned a User ID and the corresponding password is provided by the employee
himself and, theoretically, known only to him. Employees are then expected to turn on their
computers everyday, log in to the system by keying in their respective IDs and passwords in order to
access and read the messages sent to and stored in the computer system. To reply, an employee
types in or encodes his message-response and sends the same to the intended recipient, also via the
computer system. The system automatically records the time and date each message was sent and
received, including the identification of the sender and receiver thereof. All messages are recorded
and stored in computer disks.[8]
Attached to petitioners position paper were copies of print-outs of alleged computer
entries/messages sent by petitioner Reyes to private respondent through IBMs internal computer
system. The following is a summary of the contents of the print-outs which mostly came from
petitioner Reyes computer:
(a) Private respondent was admonished when he would miss out on meetings with clients
and failed to attend to important accounts, such as that of Hella Philippines; [9]
(b) Petitioner Reyes conducted consultations with private respondent concerning the latters
work habits;[10]
(c) A new policy of requiring employees to be at the office at 8:30 a.m. every morning was
adopted and employees were no longer allowed to sign out of the office by phone;[11]
(d) Petitioner Reyes would type into his computer the records of the security guard which
reflect private respondents daily tardiness and frequent absences; [12]
(e) Private respondent was admonished when he failed to respond to instructions from his
superiors;[13]

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(f) IBM Australia, contacted by Hella Australia, once asked about the reported lack of
attention given to Hella Philippines.[14] Private respondent directly answered IBM Australia,
through telematic memo, and reported that Hella Philippines was deferring its computer plan and
decided to use micros in the meantime;[15]
(g) The said response was denied by Hella Australia which later made it clear that it would be
buying anything but IBM;[16] and
(h) While private respondent showed some improvement after consultations where he
allegedly admitted his shortcomings, petitioner Reyes reported that he (private respondent) would
eventually slide back to his old ways despite constant counselling and repeated warnings that he
would be terminated if he would not improve his work habits. [17]
Through these computer print-outs calling private respondents attention to his alleged tardiness and
absenteeism, petitioner sought to prove that private respondent was sufficiently notified of the
charges against him and was guilty thereof because of his failure to deny the said charges.
On March 13, 1992, the labor arbiter rendered a decision finding private respondent to have been
terminated for cause and accordingly dismissing the complaint. Considering, however, the ground for
termination as well as private respondents long record of service to the company, the arbiter ordered
the award of separation pay at the rate equivalent to one-half (1/2) month salary for every year of
service. The dispositive portion of the decision reads

WHEREFORE, judgment is hereby rendered in this case declaring respondent IBM Phils., Inc. not
guilty of the charge of illegal dismissal. However, respondent company is directed to pay complainant
Israel the sum of Two Hundred Forty Eight Thousand (P248,000.00) as separation pay. All other
claims are denied for lack of merit.

It appears, however, that prior to the release of the labor arbiters decision at 11:21 a.m. on March
26, 1992, private respondent had filed a Manifestation And Motion To Admit Attached New Evidence
For The Complainant which was received by the Arbitration Branch at 10:58 a.m. of the same
day. The evidence consisted of private respondents Daily Time Records (DTRs) for the period June
1, 1990 to August 31, 1990 and pay slips for the period January 1990 to June 1991 showing that
private respondent did not incur any unexcused absences, that he was not late on any day within the
period and that no deduction was made from his salary on account of tardiness or absences.
Private respondent appealed to the NLRC which, on April 15, 1994, reversed the labor arbiters
decision and found private respondents dismissal illegal. The NLRC ruled: (1) that the computer print-
outs which petitioners presented in evidence to prove that private respondents office attendance was
poor were insufficient to show that the latter was guilty of habitual absences and tardiness; and (2)
that private respondent was not heard in his defense before the issuance of the final notice of
dismissal.[18] The dispositive portion of the NLRCs decision reads:

WHEREFORE, the Decision dated March 13, 1992 is hereby SET ASIDE and a new one entered
declaring the dismissal of the complainant as illegal. Respondent (sic) are hereby ordered to reinstate
complainant to his former position without loss of his seniority rights and to pay backwages starting
August 1991 until reinstated at the rate of P40,516.65 a month including all its benefits and bonuses.

Presiding Commissioner Edna Bonto-Perez dissented on the ground she found that petitioners have
presented strong and convincing documentary evidence that private respondent was guilty of habitual
tardiness and absences. She was also of the opinion that private respondent was sufficiently warned
before he was actually dismissed.[19]

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Petitioners moved for a reconsideration, but their motion was denied in a resolution, dated July
20, 1994. Hence, this petition for certiorari. Petitioners contend that
1. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF
DISCRETION TANTAMOUNT TO LACK OF JURISDICTION IN HOLDING THAT NO
JUST CAUSE EXISTS NOR WAS THERE DUE PROCESS OBSERVED IN THE
DISMISSAL OF THE PRIVATE RESPONDENT BECAUSE THE COMPUTER
PRINTOUTS WHICH PROVE JUST CAUSE AND DUE PROCESS ARE NOT
ADMISSIBLE IN EVIDENCE.
2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF
DISCRETION TANTAMOUNT TO LACK OR EXCESS OF ITS JURISDICTION IN
HOLDING THAT EVEN IF THE COMPUTER PRINTOUTS WERE ADMISSIBLE,
PETITIONER FAILED TO SATISFY DUE PROCESS.
We find petitioners contention to be without merit.
First. Petitioners argue that the computer print-outs submitted by them need not be identified or
authenticated according to the rules of procedure in regular courts in order for the same to be
admissible in evidence. They contend that technical rules of evidence do not apply to
administrative/labor cases[20] and because of a relaxation of the rules of evidence, private respondent
was in fact allowed by the labor arbiter to adduce additional evidence even after a decision had been
rendered.[21]
It is indeed true that administrative agencies, such as the NLRC, are not bound by the technical
rules of procedure and evidence in the adjudication of cases.[22] This was the reason private
respondent was allowed to submit additional evidence even after the case was deemed submitted for
resolution by the labor arbiter. The practice of admitting additional evidence on appeal in labor cases
has been sanctioned by this Court.[23]
However, the liberality of procedure in administrative actions is subject to limitations imposed by
basic requirements of due process. As this Court said in Ang Tibay v. CIR,[24] the provision for
flexibility in administrative procedure does not go so far as to justify orders without a basis in
evidence having rational probative value. More specifically, as held in Uichico v. NLRC:[25]

It is true that administrative and quasi-judicial bodies like the NLRC are not bound by the technical
rules of procedure in the adjudication of cases. However, this procedural rule should not be
construed as a license to disregard certain fundamental evidentiary rules. While the rules of evidence
prevailing in the courts of law or equity are not controlling in proceedings before the NLRC, the
evidence presented before it must at least have a modicum of admissibility for it to be given some
probative value. The Statement of Profit and Losses submitted by Crispa, Inc. to prove its alleged
losses, without the accompanying signature of a certified public accountant or audited by an
independent auditor, are nothing but self-serving documents which ought to be treated as a mere
scrap of paper devoid of any probative value.

The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of
their authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal
view in the conduct of proceedings before administrative agencies, have nonetheless consistently
required some proof of authenticity or reliability as condition for the admission of documents.
In Rizal Workers Union v. Ferrer-Calleja,[26] this Court struck down the decision of the Director of
Labor Relations which was based on an unsigned and unidentified manifesto. It was held:

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From even a perfunctory assessment, it becomes apparent that the evidence upon which said
decision is professedly based does not come up to that standard of substantiality.

It is of course also a sound and settled rule that administrative agencies performing quasi-judicial
functions are unfettered by the rigid technicalities of procedure observed in the courts of law, and this
so that disputes brought before such bodies may be resolved in the most expeditious and
inexpensive manner possible. But what is involved here transcends mere procedural technicality and
concerns the more paramount principles and requirements of due process, which may not be
sacrificed to speed or expediency...The clear message of [Article 221 of the Labor Code] is that even
in the disposition of labor cases, due process must never be subordinated to expediency or
dispatch. Upon this principle, the unidentified documents relied upon by respondent Director must be
seen and taken for what they are, mere inadmissible hearsay. They cannot, by any stretch of
reasoning, be deemed substantial evidence of the election frauds complained of.

Likewise, in the case of EMS Manpower & Placement Services v. NLRC,[27] the employer
submitted a photocopy of a telex which supposedly shows that the employee was guilty of serious
misconduct and which became the basis of her dismissal. This Court ruled that the telex, a single
document, totally uncorroborated and easily concocted or fabricated to suit ones personal interest
and purpose,[28] was insufficient to uphold the employers defense.
In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, this Court held as incompetent unsigned
daily time records presented to prove that the employee was neglectful of his duties:

Indeed, the [DTRs] annexed to the present petition would tend to establish private respondents
neglectful attitude towards his work duties as shown by repeated and habitual absences and
tardiness and propensity for working undertime for the year 1992. But the problem with these DTRs is
that they are neither originals nor certified true copies. They are plain photocopies of the originals, if
the latter do exist. More importantly, they are not even signed by private respondent nor by any of the
employers representatives...[29]

In the case at bar, a specimen of the computer print-out submitted by petitioners reads:

Date and time 10/12/90 09:23:1

From: REYESVV -- MNLVM1

To: ISRAEL -- MNLRVM Israel, A.D.

SEC: I IBM INTERNAL USE ONLY

Subject:

Angel, have been trying to pin you down for a talk the past couple of days. Whatever happened
to our good discussion 2 weeks ago? I thought you would make an effort to come in on time from
then on? If you have problems which prevent you from coming in on time, let me know because I
would really like to help if I can. The sum of all your quotas is less than mine so I really need all
of you pitching in. Kindly take a look at your proofs in-tray as there are some to dos which are
pending. Acts such as St. Louis U. and NEECO should be worth looking into as theyve been
inquiring about upgrading their very old boxes. If you are too tied up for these accounts do let me
know so I can reassign. By Monday morning please. Lets give it that final push for the branch!

=============================================================
Regards from the APPLICATION MNLVM 1 (REYESVV)
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SYSTEMS MARKETING group T (832)8192-279
Victor V. Reyes - Marketing Manager
=============================================================
Not one of the 18 print-out copies submitted by petitioners was ever signed, either by the sender
or the receiver. There is thus no guarantee that the message sent was the same message
received. As the Solicitor General pointed out, the messages were transmitted to and received not by
private respondent himself but his computer.[30]
Neither were the print-outs certified or authenticated by any company official who could properly
attest that these came from IBMs computer system or that the data stored in the system were not
and/or could not have been tampered with before the same were printed out. It is noteworthy that the
computer unit and system in which the contents of the print-outs were stored were in the exclusive
possession and control of petitioners since after private respondent was served his termination letter,
he had no more access to his computer.[31]
Second. Even if the computer print-outs were admissible, they would not suffice to show that
private respondents dismissal was justified.
Petitioners contention is that private respondent was repeatedly warned through computer
messages for coming in late or not reporting at all to the office during the period May 1990 -- June
1991 but he never denied the allegations. Therefore, he must be deemed to have admitted these
allegations.[32] But the burden of proving that the dismissal was for just cause is on petitioners. They
cannot simply rely on any admission by private respondent implied from his failure to deny the
alleged computer messages to him which he denied he had ever received.On the other hand, private
respondents additional evidence, consisting of DTRs and pay slips, show that he did not incur
unexcused absences or tardiness or that he suffered deduction in pay on account of such absences
or tardiness.
Indeed, petitioners could have easily proven their allegations by presenting private respondents
DTRs. Since these were in petitioners possession, their non-production thereof raises the
presumption that if presented they would be adverse to petitioners. This is precisely what the best
evidence rule guards against.

The purpose of the rule requiring the production of the best evidence is the prevention of fraud,
because if a party is in possession of such evidence and withholds it, and seeks to substitute
inferior evidence in its place, the presumption naturally arises that the better evidence is withheld
for fraudulent purposes which its production would expose and defeat.[33]

Private respondents DTRs for the period June 1, 1990 -- August 30, 1990[34] show that while his
attendance record may not have been perfect, it was at least satisfactory. The days when private
respondent did not report to the office were credited either as vacation or as sick leaves. On days
when he was away on business trips, his destination was shown. The DTRs were signed by
petitioner Victor Reyes.
It is said that the DTRs presented were only for the period when private respondents attendance
was excellent; he took care not to submit his DTRs for other months during which he was often late in
coming to office.[35] As the Solicitor General has pointed out, however, it was precisely during that
period of June 1, 1990 --August 30, 1990 when, according to the print-outs submitted by petitioners,
private respondent was often late or absent.
Nor is there proof to support petitioners allegation that it was private respondents secretary and
not him who often signed the attendance sheet. [36] Indeed, petitioners did not present private
respondents secretary or, at the very least, attach an affidavit sworn to by her to prove their
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allegations and thus dispute the DTRs presented by private respondent. This, notwithstanding ample
opportunity to do so. On the other hand, as already stated, the DTRs, showing private respondents
good attendance, were signed by petitioner Victor Reyes himself, and no good reason has been
shown why they cannot be relied upon in determining private respondents attendance.
Third. Even assuming the charges of habitual tardiness and absenteeism were true, such
offenses do not warrant private respondents dismissal. He has not been shown to have ever
committed any infraction of company rules during his sixteen-year stint in the company. Although it is
alleged that he failed to attend important client meetings and gave false representations to a valued
client to cover his tracks, there is no record finding him guilty of such offenses. Dismissal has always
been regarded as the ultimate penalty.[37] The fact that lapses in private respondents attendance
record may have occurred only during his final year in the company, after a long period of exemplary
performance, makes petitioners contention dubious. While it is true that long years of service is no
guarantee against dismissal for wrongdoing,[38] at least the employees record does provide an index
to his work. In case doubt exists between the evidence presented by the employer and that
presented by the employee, the scales of justice must be tilted in favor of the latter.[39]
Fourth. The print-outs likewise failed to show that private respondent was allowed due process
before his dismissal.
The law requires an employer to furnish the employee two written notices before termination of
his employment may be ordered. The first notice must inform him of the particular acts or omissions
for which his dismissal is sought, the second of the employers decision to dismiss the employee after
he has been given the opportunity to be heard and defend himself. [40]
These requirements were not observed in this case. As noted earlier, there is no evidence that
there was an exchange of communication between petitioners and private respondent regarding the
latters supposed substandard performance. Private respondent has consistently denied, however,
that he was ever advised of the charges hurled against him. The so-called one-on-one consultations
or personal counsellings mentioned in the print-outs between petitioner Reyes and private
respondent concerning the latters work habits do not satisfy the requirements of due process, as we
had occasion to say in Pono v. NLRC.[41]

Consultations or conferences may not be a substitute for the actual holding of a hearing. Every
opportunity and assistance must be accorded to the employee by the management to enable him to
prepare adequately for his defense, including legal representation. [42]

In Ruffy v. NLRC,[43] this Court held that what would qualify as sufficient or ample opportunity, as
required by law, would be every kind of assistance that management must accord to the employee to
enable him to prepare adequately for his defense. No such opportunity was given to private
respondent in this case. He was simply served his termination notice without being heard in his
defense.
Fifth. Petitioners allege that the NLRC, after concluding that the evidence submitted by them
were not properly identified or authenticated, should have remanded the case to the arbiter for
clarificatory hearing.
A formal hearing was not de rigueur. The 1994 Rules of Procedure of the NLRC, 4 provides:

Immediately after the submission by the parties of their position papers/memorandum, the Labor
Arbiter shall, motu proprio, determine whether there is a need for a formal trial or hearing.At this
stage, he may, at his discretion and for the purpose of making such determination, ask clarificatory
questions to further elicit facts or information, including but not limited to the subpoena of relevant
documentary evidence, if any, from any party or witness.
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As held by the NLRC:

Aside from these computer print-outs, respondents have not presented any other evidence to
prove that complainant was ever called for investigation nor his side heard prior to receipt of the
termination letter dated June 27, 1991. In fact, even if we consider these computer print-outs,
respondents still failed to satisfy the requirements of procedural due process. . . . In this
particular case, we observe that there is failure on the part of respondents to prove the existence
of a legal cause. The evidence presented before the Labor Arbiter did not sufficiently and clearly
support the allegation of respondents that complainant committed habitual absences and
tardiness resulting into inefficiency.[44]

In spite of this finding, petitioners failed to adduce additional evidence when they moved for a
reconsideration of the NLRC decision or when they filed the instant petition. Despite the opportunities
afforded them, petitioners failed to substantiate their allegations. Neither have they shown sufficient
reasons to convince this Court that, if the case were to be remanded to the arbiter for a formal
hearing, they would be able to present evidence which they could not have presented during the
initial stages of this case. As we held in Megascope General Services v. NLRC:[45]

As regards petitioners contention that a hearing has to be conducted to fully ventilate the issues
in the case, . . . [s]uffice it to state that nonverbal devices such as written explanations, affidavits,
position papers or other pleadings can establish just as clearly and concisely an aggrieved partys
defenses. Petitioner was amply provided with the opportunity to present evidence that private
respondents were not its employees. Indeed, it was petitioners failure to present substantial
evidence to buttress its claims that worked to its disadvantage and not the absence of a full-
blown hearing before the public respondent.

WHEREFORE, the petition is DISMISSED and the decision of the NLRC, dated April 15, 1994, is
hereby AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur.

[1] NLRC NCR Case No. 00-01-04250-91; NLRC CA No. 003134-92.

[2]
Office Products Marketing Representative: July 1, 1977 - December 31, 1982; Data Processing
Marketing Representative: January 1, 1983 - July 31, 1991.
[3]
In 1977, he received the Customer Engineering Excellence in Service Award. He was also a
consistent member of the Hundred Percent Club from 1979 to 1990. See NLRC Decision, p. 7;
Petition, Annex U; Comment-Private Respondent, p. 4; Rollo, pp. 103, 146.
[4] Comment-Private Respondent, pp. 4-5; Rollo, pp. 146-147.
[5] Comment-NLRC, pp. 2-4; Rollo, pp. 209-211.
[6] Comment-NLRC, p. 4; Rollo, p. 211.
[7]
The word telematic is not yet found in regular English dictionaries. According to petitioners, it is
derived from the French word telematique which is used in communications to refer to the
combination of computers and telecommunications for data processing and information. See Note 1,
Petition, p. 43; Rollo, p. 44.
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[8] Petition, pp. 36-37; Rollo, pp. 37-38.
[9] Petition, Annexes A, I, and J; Rollo, pp. 64, 73-74.
[10] Ibid., Annexes B and C; Rollo, pp. 65-67.
[11] Id., Annexes H and P; Rollo, pp. 72, 81.
[12] Id., Annexes Q and Q-1; Rollo, pp. 82-83.
[13] Id., Annexes D, E, F, and G; Rollo, pp. 68-71.
[14] Id., Annex K; Rollo, p. 76
[15] Id., Annex L; Rollo, p. 77.
[16] Id., Annexes M and N; Rollo, pp. 78-79.
[17] Id., Annexes R and S; Rollo, pp. 84-85.
[18] NLRC Decision, pp. 6-7; Rollo, pp. 102-103.
[19] See Petition, Annex W-1; Rollo, pp. 106-107.
[20] Petition, p. 43; Rollo, p. 44.
[21] Reply, p. 4; Rollo, p. 246.
[22] Labor Code, Art. 221; Jarcia Machine Shop and Auto Supply v. NLRC, 266 SCRA 97 (1997).
[23]
Caete v. NLRC, 250 SCRA 259, 266 (1995); Bristol Laboratories Employees Association v. NLRC,
187 SCRA 118, 121 (1990).
[24] 69 Phil. 635, 643 (1940).
[25] 273 SCRA 35, 44-45 (1997).
[26] 186 SCRA 431 (1990).
[27] 276 SCRA 117 (1997).
[28] Supra, at 121.
[29] 266 SCRA at 104.
[30] Comment-NLRC, p. 10; Rollo, p. 217.
[31] Comment, p. 10; Rollo, p. 152.
[32] Petition, pp. 45, 47; Rollo, pp. 46, 58.
[33] 7 Vicente V. Francisco, The Revised Rules of Court in the Philippines 121-122 (1973).
[34] Comment-Private Respondent, Annexes A to A-3; Rollo, pp. 165-168.
[35] Petition, p. 41; Rollo, p. 42.
[36] Petition, p. 14; Rollo, p. 17.
[37]
Philippine Long Distance Telephone Company v. National Labor Relations Commission and
Enrique Gabriel, G.R. No. 106947, February 11, 1999 citing Pantranco North Express, Inc. v.
National Labor Relations Commission, 252 SCRA 237, 243 (1996).
[38] Philippine Air Lines v. National Labor Relations Commission, 198 SCRA 748, 762 (1991).

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[39]
Triple Eight Integrated Services, Inc. v. National Labor Relations Commission, G.R. No. 129584,
December 3, 1998.
[40]
Rule XIV, Book V, Omnibus Rules Implementing the Labor Code; National Service Corporation v.
Third Division, NLRC; Credo v. NLRC, 168 SCRA 122, 128-129 (1988).
[41] 275 SCRA 611 (1997).
[42] Id. at 619.
[43] 182 SCRA 365, 369-370 (1990).
[44] Rollo, pp. 100-101, 102.
[45] 274 SCRA 147, 155 (1997) (Emphasis added).

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Case 2

A.M. No. CA-05-18-P April 12, 2005

ZALDY NUEZ, Complainant,

vs.
ELVIRA CRUZ-APAO, respondent.

DECISION

PER CURIAM:

What brings our judicial system into disrepute are often the actuations of a few erring court
personnel peddling influence to party-litigants, creating the impression that decisions can be
bought and sold, ultimately resulting in the disillusionment of the public. This Court has never
wavered in its vigilance in eradicating the so-called "bad eggs" in the judiciary. And whenever
warranted by the gravity of the offense, the supreme penalty of dismissal in an administrative
case is meted to erring personnel.1

The above pronouncement of this Court in the case of Mendoza vs. Tiongson2 is applicable to the
case at bar.

This is an administrative case for Dishonesty and Grave Misconduct 3 against Elvira Cruz-Apao
(Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15 th)
Division, Court of Appeals (CA). The complaint arose out of respondents solicitation of One Million
Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable
decision of the latters pending case in the CA,4 more particularly, CA-G.R. SP No. 73460
entitled "PAGCOR vs. Zaldy Nuez."5 Complainant initially lodged a complaint with the Action Center
of the Television program Imbestigador of GMA Network,6 the crew of which had accompanied him to
the Presidential Anti-Organized Crime CommissionSpecial Projects Group (PAOCC-SPG) in
Malacaang where he filed a complaint for extortion 7 against respondent. This led to the conduct of
an entrapment operation by elements of the Presidential Anti-Organized Crime Task Force
(PAOCTF) on 28 September 2004 at the Jollibee Restaurant, 2 nd Floor, Times Plaza Bldg., corner
Taft and United Nations Avenue, Manila,8 the place where the supposed hand-over of the money was
going to take place.

Respondents apprehension by agents of the PAOCTF in the course of the entrapment operation
prompted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue
Office Order No. 297-04-CG9 (Order) which created an ad-hoc investigating committee
(Committee).10 The Committee was specifically tasked among others to conduct a thorough and
exhaustive investigation of respondents case and to recommend the proper administrative sanctions
against her as the evidence may warrant.11

In accordance with the mandate of the Order, the Committee conducted an investigation of the case
and issued a Resolution12 dated 18 October 2004 where it concluded that a prima facie case of
Dishonesty and Serious Misconduct against respondent existed. The Committee thus recommended
respondents preventive suspension for ninety (90) days pending formal investigation of the charges
against her.13 On 28 January 2005, the Committee submitted a Report14 to the new CA Presiding
Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service.

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Based on the hearings conducted and the evidence received by the Committee, the antecedent facts
are as follows:

Complainants case referred to above had been pending with the CA for more than two
years.15 Complainant filed an illegal dismissal case against PAGCOR before the Civil Service
Commission (CSC). The CSC ordered complainants reinstatement but a writ of preliminary
injunction and a temporary restraining order was issued by the CA in favor of PAGCOR, thus
complainant was not reinstated to his former job pending adjudication of the case. 16Desiring an
expeditious decision of his case, complainant sought the assistance of respondent sometime in July
2004 after learning of the latters employment with the CA from her sister, Magdalena David. During
their first telephone conversation17 and thereafter through a series of messages they exchanged via
SMS,18 complainant informed respondent of the particulars of his pending case. Allegedly,
complainant thought that respondent would be able to advise him on how to achieve an early
resolution of his case.

However, a week after their first telephone conversation, respondent allegedly told complainant that a
favorable and speedy decision of his case was attainable but the person who was to draft the
decision was in return asking for One Million Pesos (P1,000,000.00).19

Complainant expostulated that he did not have that kind of money since he had been jobless for a
long time, to which respondent replied, "Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang
pera, pasensiya na."20Complainant then tried to ask for a reduction of the amount but respondent
held firm asserting that the price had been set, not by her but by the person who was going to make
the decision.21 Respondent even admonished complainant with the words "Wala tayo sa palengke
iho!"22 when the latter bargained for a lower amount.23

Complainant then asked for time to determine whether or not to pay the money in exchange for the
decision. Instead, in August of 2004, he sought the assistance of Imbestigador.24 The crew of the TV
program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for
extortion.25 Thereafter, he communicated with respondent again to verify if the latter was still asking
for the money26 and to set up a meeting with her.27 Upon learning that respondents offer of a
favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for
the entrapment operation was formulated by Imbestigador in cooperation with the PAOCC.

On 24 September 2004, complainant and respondent met for the first time in person at the 2 nd Floor
of Jollibee, Times Plaza Bldg.,28 the place where the entrapment operation was later conducted.
Patricia Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as
his sister-in-law.29 During the meeting, complainant clarified from respondent that if he gave the
amount of One Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed
by the latter together with the assurance that it would take about a month for the decision to come
out.30 Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed
a favorable decision only in the CA but did not extend to the Supreme Court should the case be
appealed later.31

When respondent was asked where the money will go, she claimed that it will go to a male
researcher whose name she refused to divulge. The researcher was allegedly a lawyer in the CA
Fifth (5th) Division where complainant case was pending.32 She also claimed that she will not get
any part of the money unless the researcher decides to give her some. 33

Complainant tried once again to bargain for a lower amount during the meeting but respondent
asserted that the amount was fixed. She even explained that this was their second transaction and
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the reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a
previous occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite
the fact that the amount had been pegged at One Million Three Hundred Thousand Pesos
(P1,300,000.00).34 Complainant then proposed that he pay a down payment of Seven Hundred
Thousand Pesos (P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00)
will be paid once the decision had been released.35 However, respondent refused to entertain the
offer, she and the researcher having learned their lesson from their previous experience for as then,
the client no longer paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the
decision had come out.36

Complainant brought along copies of the documents pertinent to his case during the first meeting.
After reading through them, respondent allegedly uttered, "Ah, panalo ka."37 The parties set the next
meeting date at lunchtime on 28 September 2004 and it was understood that the money would be
handed over by complainant to respondent then.38

On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang
(Maclang) as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny
Feliciano, and PO2 Edgar delos Reyes39 arrived at around 11:30 in the morning at Jollibee. 40 Nuez
and Siringan arrived at past noon and seated themselves at the table beside the one occupied by the
two (2) agents, Banay and Villena. Complainant had with him an unsealed long brown envelope
containing ten (10) bundles of marked money and paper money which was to be given to
respondent.41 The envelope did not actually contain the One Million Pesos (P1,000,000.00)
demanded by respondent, but instead contained paper money in denominations of One Hundred
Pesos (P100.00), Five Hundred Pesos (P500.00) and One Thousand Pesos (P1,000.00), as well as
newspaper cut-outs.42 There were also ten (10) authentic One Hundred Peso (P100.00) bills which
had been previously dusted with ultra-violet powder by the PAOCTF.43 The three other PAOCTF
agents were seated a few tables away44 and there were also three (3) crew members
from Imbestigador at another table operating a mini DV camera that was secretly recording the whole
transaction.45

Respondent arrived at around 1:00 p.m.46 She appeared very nervous and suspicious during the
meeting.47Ironically, she repeatedly said that complainant might entrap her, precisely like those that
were shown on Imbestigador.48 She thus refused to receive the money then and there. What she
proposed was for complainant and Siringan to travel with her in a taxi and drop her off at the CA
where she would receive the money.49

More irony ensued. Respondent actually said that she felt there were policemen around and she was
afraid that once she took hold of the envelope complainant proffered, she would suddenly be arrested
and handcuffed.50 At one point, she even said, "Ayan o, tapos na silang kumain, bakit hindi pa sila
umaalis?,"51 referring to Banay and Villena at the next table. To allay respondents suspicion, the two
agents stood up after a few minutes and went near the staircase where they could still see what was
going on.52

Complainant, respondent and Siringan negotiated for almost one hour.53 Complainant and Siringan
bargained for a lower price but respondent refused to accede. When respondent finally touched the
unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited
her to the Western Police District (WPD) Headquarters at United Nations Avenue for
questioning.54 Respondent became hysterical as a commotion ensued inside the restaurant. 55

On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the
restaurant. The latter replied that she went there to get the One Million Pesos (P1,000,000.00).56
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Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found
positive for ultra-violet powder that was previously dusted on the money. 57 She was later detained at
the WPD Headquarters.

At seven oclock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes
Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latters house. 58 She
tearfully confessed to Atty. Gepty that "she asked for money for a case and was entrapped by police
officers and the media."59 Enraged at the news, Atty. Gepty asked why she had done such a thing to
which respondent replied, "Wala lang maam, sinubukan ko lang baka makalusot."60 Respondent
claimed that she was ashamed of what she did and repented the same. She also asked for Atty.
Geptys forgiveness and help. The latter instead reminded respondent of the instances when she and
her co-employees at the CA were exhorted during office meetings never to commit such offenses. 61

Atty. Gepty rendered a verbal report62 of her conversation with their divisions chairman, Justice
Martin S. Villarama. She reduced the report into writing and submitted the same to then PJ Cancio
Garcia on 29 September 2004.63 She also later testified as to the contents of her report to the
Committee.

During the hearing of this case, respondent maintained that what happened was a case of instigation
and not an entrapment. She asserted that the offer of money in exchange for a favorable decision
came not from her but from complainant. To support her contention, she presented witnesses who
testified that it was complainant who allegedly offered money to anyone who could help him with his
pending case. She likewise claimed that she never touched the money on 28 September 2004, rather
it was Capt. Maclang who forcibly held her hands and pressed it to the envelope containing the
money. She thus asked that the administrative case against her be dismissed.

This Court is not persuaded by respondents version. Based on the evidence on record, what
happened was a clear case of entrapment, and not instigation as respondent would like to claim.

In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-
breakers in the execution of their criminal plan. On the other hand, in instigation, the instigator
practically induces the would-be defendant into the commission of the offense, and he himself
becomes a co-principal.64

In this case, complainant and the law enforcers resorted to entrapment precisely because respondent
demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a
favorable decision of the latters pending case. Complainants narration of the incidents which led to
the entrapment operation are more in accord with the circumstances that actually transpired and are
more credible than respondents version.

Complainant was able to prove by his testimony in conjunction with the text messages from
respondent duly presented before the Committee that the latter asked for One Million Pesos
(P1,000,000.00) in exchange for a favorable decision of the formers pending case with the CA. The
text messages were properly admitted by the Committee since the same are now covered by Section
1(k), Rule 2 of the Rules on Electronic Evidence65 which provides:

"Ephemeral electronic communication" refers to telephone conversations, text messages . . .

and other electronic forms of communication the evidence of which is not recorded or
retained."

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Under Section 2, Rule 11 of the Rules on Electronic Evidence, "Ephemeral electronic
communications shall be proven by the testimony of a person who was a party to the same or who
has personal knowledge thereof . . . ." In this case, complainant who was the recipient of said
messages and therefore had personal knowledge thereof testified on their contents and import.
Respondent herself admitted that the cellphone number reflected in complainants cellphone from
which the messages originated was hers.66 Moreover, any doubt respondent may have had as to the
admissibility of the text messages had been laid to rest when she and her counsel signed and
attested to the veracity of the text messages between her and complainant. 67 It is also well to
remember that in administrative cases, technical rules of procedure and evidence are not strictly
applied.68 We have no doubt as to the probative value of the text messages as evidence in
determining the guilt or lack thereof of respondent in this case.

Complainants testimony as to the discussion between him and respondent on the latters demand for
One Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness,
Siringan, the reporter of Imbestigador who was present when the parties met in person. Siringan was
privy to the parties actual conversation since she accompanied complainant on both meetings held
on 24 and 28 of September 2004 at Jollibee.

Respondents evidence was comprised by the testimony of her daughter and sister as well as an
acquaintance who merely testified on how respondent and complainant first met. Respondents own
testimony consisted of bare denials and self-serving claims that she did not remember either the
statements she herself made or the contents of the messages she sent. Respondent had a very
selective memory made apparent when clarificatory questions were propounded by the Committee.

When she was asked if she had sent the text messages contained in complainants cellphone and
which reflected her cellphone number, respondent admitted those that were not incriminating but
claimed she did not remember those that clearly showed she was transacting with complainant.
Thus, during the 17 November 2004 hearing, where respondent was questioned by Justice Salazar-
Fernando, the following transpired:

Q: After reading those text messages, do you remember having made those text
messages?

(Respondent)

A: Only some of these, your honors.

Justice Salazar-Fernando: Which one?

A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your
Honors.

Q: What else?

A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si
Len David.

Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which
was around 1:09 in the afternoon and you said "di me pwede punta na lang kayo dito sa office
Thursday 4:45 p.m. Room 107 Centennial Building.

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A: Yes, your Honors.

Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again
texted Zaldy Nuez and you said "Sige bukas nang tanghali sa Times Plaza, Taft Avenue,
corner U.N. Avenue. Magdala ka ng I.D. para makilala kita o isama mo si Len David.

A: Opo, your Honors.

Q: How about on September 23 at 5:05 in the afternoon when you said "Di pwede kelan
mo gusto fixed price na iyon."

A: I dont remember that, your Honors.

Q: Again on September 23 at 5:14 p.m. you said "Alam mo di ko iyon price and nagbigay
noon yung gagawa. Wala ako doon." You dont also remember this?

A: Yes, your Honors.

Q: September 27 at 1:42 p.m. "Oo naman ayusin nyo yung hindi halatang pera". You also
dont remember that?

A: Yes Your Honors.

Q: September 27 at 1:30 in the afternoon, "Di na pwede sabi sa akin. Pinakaiusapan ko

na nga ulit iyon." You dont remember that?

A: No, your Honors.69

Respondent would like this Court to believe that she never had any intention of committing a crime,
that the offer of a million pesos for a favorable decision came from complainant and that it was
complainant and the law enforcers who instigated the whole incident.

Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting
her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged.

This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come
from complainant and had she really intended to stop the latter from corrupting her, she could have
simply refused to answer the latters messages and calls. This she did not do. She answered those
calls and messages though she later claimed she did not remember having sent the same messages
to complainant. She could also have reported the matter to the CA Presiding Justice, an action which
respondent admitted during the hearing was the proper thing to do under the circumstances. 70 But
this course of action she did not resort to either, allegedly because she never expected things to end
this way.71

While claiming that she was not interested in complainants offer of a million pesos, she met with him
not only once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling
complainant to stop pestering her would be more effective if she did it in person, the same would
have been accomplished with a single meeting. There was no reason for her to meet with
complainant again on 28 September 2004 unless there was really an understanding between them
that the One Million Pesos (P1,000,000.00) will be handed over to her then. Respondent even
claimed that she became afraid of complainant when she learned that the latter had been dismissed
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by PAGCOR for using illegal drugs.72 This notwithstanding, she still met with him on 28 September
2004.

Anent complainants narration of respondents refusal to reduce the amount of One Million Pesos
(P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she
actually said the same, respondent wants this Court to believe that she said it merely to have
something to talk about.73 If indeed, respondent had no intention of committing any wrongdoing, it
escapes the Court why she had to make up stories merely to test if complainant could make good on
his alleged boast that he could come up with a million pesos. It is not in accord with ordinary human
experience for an honest government employee to make up stories that would make party-litigants
believe that court decisions may be bought and sold. Time and again this Court has declared, thus:

"Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of
his duty and it behooves everyone to steer clear of any situations in which the slightest
suspicion might be cast on his conduct. Any misbehavior on his part, whether true or only
perceived, is likely to reflect adversely on the administration of justice."74

Respondent having worked for the government for twenty four (24) years, nineteen (19) of which
have been in the CA,75 should have known very well that court employees are held to the strictest
standards of honesty and integrity. Their conduct should at all times be above suspicion. As held by
this Court in a number of cases, "The conduct or behavior of all officials of an agency involved in the
administration of justice, from the Presiding Judge to the most junior clerk, should be circumscribed
with the heavy burden of responsibility."76 Their conduct must, at all times be characterized by among
others, strict propriety and decorum in order to earn and maintain the respect of the public for the
judiciary.77

Respondents actuations from the time she started communicating with complainant in July 2004 until
the entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court
employees. Respondents avowals of innocence notwithstanding, the evidence clearly show that she
solicited the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a
favorable decision. The testimony of Atty. Gepty, the recipient of respondents confession
immediately after the entrapment operation, unmistakably supports the finding that respondent did
voluntarily engage herself in the activity she is being accused of.

Respondents solicitation of money from complainant in exchange for a favorable decision violates
Canon I of the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to
A.M. No. 03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel
expressly provide:

"SECTION 1. Court personnel shall not use their official position to secure unwarranted
benefits,privileges or exemption for themselves or for others."

"SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any
explicit or implicit understanding that such gift, favor or benefit shall influence their official
actions."(Underscoring supplied)

It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel
specifically provides:

INCORPORATION OF OTHER RULES

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"SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme
Court governing the conduct of public officers and employees applicable to the judiciary are
deemed incorporated into this Code."

By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent
committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and
the peoples confidence in it.

In the recent case of Aspiras vs. Abalos,78 complainant charged respondent, an employee of the
Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him
into giving her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for
his acquittal in a murder case on appeal before the Supreme Court. It turned out that respondents
representation was false because complainant was subsequently convicted of murder and sentenced
to suffer the penalty of reclusion perpetua by the Supreme Court.79

The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her
dismissal from the service. This Court aptly held thus:

"In Mirano vs. Saavedra,80 this Court emphatically declared that a public servant must exhibit
at all times the highest sense of honesty and integrity. The administration of justice is a sacred
task, and by the very nature of their duties and responsibilities, all those involved in it must
faithfully adhere to, hold inviolate, and invigorate the principle that public office is a public trust,
solemnly enshrined in the Constitution."81

Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Sharia Circuit
Court, Bengo, Tawi-Tawi,82 this Court stated:

"No position demands greater moral righteousness and uprightness from the occupant than
the judicial office. Those connected with the dispensation of justice bear a heavy burden of
responsibility. Court employees in particular, must be individuals of competence, honesty and
probity charged as they are with safeguarding the integrity of the court . . . . The High Court
has consistently held that persons involved in the administration of justice ought to live up to
the strictest standards of honesty and integrity in the public service. He should refrain from
financial dealings which would interfere with the efficient performance of his duties. 83 The
conduct required of court personnel must always be beyond reproach." 84

The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC
Branch 14 Cebu City85 is also worth remembering:

"Court employees bear the burden of observing exacting standards of ethics and morality. This
is the price one pays for the honor of working in the judiciary. Those who are part of the
machinery dispensing justice from the lowliest clerk to the presiding judge must conduct
themselves with utmost decorum and propriety to maintain the publics faith and respect for
the judiciary. Improper behavior exhibits not only a paucity of professionalism at the workplace
but also a great disrespect to the court itself. Such demeanor is a failure of circumspection
demanded of every public official and employee."86

In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the
Committee in their Report87 recommended that respondent be dismissed from government service for
GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court
Personnel.88
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Finding the Committees recommendation to be supported by more than substantial evidence and in
accord with the applicable laws and jurisprudence, the recommendation is well taken.

WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE

MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT
PERSONNEL and is accordingly DISMISSED from government service, with prejudice to re-
employment in any branch, instrumentality or agency of the government, including government-
owned and controlled corporations. Her retirement and all benefits except accrued leave credits are
hereby FORFEITED.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,

Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga and Chico-Nazario,
JJ., concur.
Garcia, J., No part.

Footnotes
1 Mendoza vs. Tiongson, 333 Phil. 508 (1996).
2 Ibid.

3 CA Records, Vol. 1, p. 47.

4 Id. at 13.
5 Id. at 1.
6 Id. at 14.
7 Id. at 15.
8 Id. at 1, 17, 19.
9 Id. at 1-2.

10 Composed of Justice Rodrigo V. Cosico as Chairman and Justices Remedios Salazar-

Fernando and Japar B. Dimaampao as members.
11 Supra note 9.

12 CA Records, pp. 92-96.

13 Id. at 95-96.
14 Ad Hoc Investigating Committee Report, pp. 1-47.

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15 TSN, 18 October 2004, pp. 117-118.
16 Id. at 129-132.
17 Id. at 91.

18 Short Message Sending.

19 TSN, 18 October 2004, p. 97.
20 Id. at 92; TSN, 24 November 2004, p. 32.

21 TSN, 24 November 2004, pp. 97-98.

22 Id. at 34.
23 Ibid.

24 Id. at 32.
25 Supra note 7.
26 TSN, 18 October 2004, p. 224.
27 TSN, 12 November 2004, p. 55.
28 TSN, 18 October 2004, pp. 15-17; CA Records, pp. 143-145.
29 Id. at p. 25; CA Records, p. 153.
30 Id. at 24-25; CA Records, pp. 152-153.

31 TSN, 12 October 2004, p. 24; CA Records, p. 84.

32 TSN, 18 October 2004, pp. 17, 19-20; CA Records, pp. 145, 147-148.
33 Id. at 18-19.
34 Id. at 18.
35 Id. at 87.
36 TSN, 12 October 2004, p. 24; CA Records, p. 85; Id. at 18; CA Records, p.146.
37 TSN, 18 October 2004, pp. 25, 87-88; CA Records, p. 153.
38 Id at 32; CA Records, p. 160.
39 TSN, 18 October 2004, pp. 45, 59-60.

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40 TSN, 22 October 2004, pp. 21-22.
41 Id. at 30-31, 42-43.
42 Ibid.

43 TSN, 28 October 2004, pp. 10, 34, 41.

44 Id. at 23; TSN, 18 October 2004, p. 55.
45 TSN, 18 October 2004, pp. 56, 141.
46 Id. at 23.
47 Id. at 38, 145.
48 TSN, 24 November 2004, p. 38.
49 TSN, 18 October 2004, p. 22; TSN, 24 November 2004, p. 39.
50 Ibid.

51 TSN, 18 October 2004, p. 45, 57.

52 TSN, 22 October 2004, p. 10.
53 TSN, 24 November 2004, p. 36.
54 TSN, 22 October 2004, pp. 11-12.
55 TSN, 24 November 2004, p. 40.
56 TSN, 22 October 2004, p. 12.
57 TSN, 28 October 2004, p. 6.
58 CA Records, Vol. 1, p. 6.
59 Ibid.

60 Ibid.

61 Id. at 7.
62 Ibid.

63 CA Records, p. 5.
64 People vs. Lapatha, No. L-63074-75, 9 November 1988, 167 SCRA 159.

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65 Section 2, Rule 1 of the Rules on Electronic Evidence provides that: "These Rules shall
apply to . . . administrative cases."
66 TSN, 12 October 2004, pp. 14, 20.
67 CA Records, Vol. 1, p. 101; TSN, 17 November 2004, p. 52.
68 Emin vs. De Leon, G.R. No. 139794, 27 February 2002, 378 SCRA 143.
69 TSN, 17 November 2004, pp. 60-62.
70 TSN, 12 November 2004, pp. 69-70.
71 Ibid.

72 TSN, 17 November 2004, p. 68.

73 TSN, 12 October 2004, p. 25.
74 Racasa vs. Callado-Callizo, 430 Phil. 775 (2002); Valentin Ruga vs. Edwin Ligot, SC Chief
Judicial Staff Officer, MISO, MISO-SDAAD, A.M. No. 2003-5-SC, 20 November 2003, 416
SCRA 255.
75 TSN, 12 November 2004, p. 33.
76 Fabian
vs. Galo, A.M. No. P-96-1214, June 10, 2003, 403 SCRA 375, 379 citing Biag vs.
Gubatanga, 376 Phil. 870; 318 SCRA 753 (1999); Gacho vs. Fuentes, 353 Phil. 665 (1998);
OCA vs. Alvarez, 350 Phil. 771 (1998).
77 Ibid,
citing Judge Amado S. Caguioa vs. Crisanto Flora, 412 Phil 426 (2001), citing Alawi vs.
Alauya, 335 Phil. 1096 (1997); Quiroz vs. Orfila, 338 Phil. 828 (1997); Re: Report on the
Judicial Audit Conducted in RTC, Br. 82, Odiongan, Romblon, 354 Phil. 1
(1998) citing Orfila vs. Quiroz, supra.
78 A .M. No. OCA-01-6, 02 September 2003, 410 SCRA 274.
79 Ibid.

80 225 SCRA 77 (1993).

81 Ibid.

82 Re:Memorandum dated 27 Sept. 1999 of Ma. Corazon M. Molo, OIC, OAS, OCA, A.M. No.
SC-00-6-P, 16 October 2003, 413 SCRA 520.
83 Cana vs. Santos, 234 SCRA 17 (1994).
84 Caguioa vs. Flora, 360 SCRA 12 (2001).

85 A. M. No. P-02-1610, 27 November 2003, 416 SCRA 472.

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86 Ibid.

87 See note 12.

88 Ibid.

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Case 3

G.R. No. 170491 April 4, 2007

NATIONAL POWER CORPORATION, Petitioner,

vs.
HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING
COMPANY, and WALLEM SHIPPING, INCORPORATED, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure,
assailing the Decision1 of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November
2005, which dismissed the Petition for Certiorari filed by the National Power Corporation seeking to
set aside the Order2 issued by the Regional Trial Court (RTC) of Cebu, Branch 19 dated 16
November 2004, denying admission and excluding from the records plaintiffs (herein petitioner)
Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its
sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R"
and "S" and its sub-markings.

On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private
respondent Bangpai Shipping, Co., allegedly bumped and damaged petitioners Power Barge 209
which was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner filed before
the Cebu RTC a complaint for damages against private respondent Bangpai Shipping Co., for the
alleged damages caused on petitioners power barges.

Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private
respondent Wallem Shipping, Inc., as additional defendant, contending that the latter is a ship agent
of Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc. filed a Motion to Dismiss
which was subsequently denied by public respondent Judge in an Order dated 20 October 1998.
Bangpai Shipping Co. likewise filed a Motion to Dismiss which was also denied by public respondent
Judge in an Order issued on 24 January 2003.

Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before
the lower court on 2 February 2004 consisting of Exhibits "A" to "V" together with the sub-marked
portions thereof. Consequently, private respondents Bangpai Shipping Co. and Wallem Shipping, Inc.
filed their respective objections to petitioners formal offer of evidence.

On 16 November 2004, public respondent judge issued the assailed order denying the admission and
excluding from the records petitioners Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J"
and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its
sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings. According to the court a
quo:

The Court finds merit in the objections raised and the motion to strike out filed respectively by the
defendants. The record shows that the plaintiff has been given every opportunity to present the
originals of the Xerox or photocopies of the documents it offered. It never produced the originals. The
plaintiff attempted to justify the admission of the photocopies by contending that "the photocopies
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offered are equivalent to the original of the document" on the basis of the Electronic Evidence
(Comment to Defendant Wallem Philippines Objections and Motion to Strike). But as rightly pointed
out in defendant Wallems Reply to the Comment of Plaintiff, the Xerox copies do not constitute the
electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows:

"(h) "Electronic document" refers to information or the representation of information, data, figures,
symbols or other models of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes
digitally signed documents and any printout, readable by sight or other means which accurately
reflects the electronic data message or electronic document. For the purpose of these Rules, the
term "electronic document" may be used interchangeably with "electronic data message".

The information in those Xerox or photocopies was not received, recorded, retrieved or produced
electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5,
Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove
the admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was
not executed, much less presented in evidence.

The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being
not properly identified by any competent witness, the loss of the principals thereof was not
established by any competent proof.

xxxx

WHEREFORE, plaintiffs Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-
markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings,
"Q" and its sub-markings, and "R" are hereby DENIED admission and excluded from the records.
However, these excluded evidence should be attached to the records of this case to enable the
appellate court to pass upon them should an appeal be taken from the decision on the merits to be
rendered upon the termination of the trial of this case.

Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since
the witness who brought these pictures expressly admitted that he was not present when the photos
were taken and had not knowledge when the same where taken.3

Upon denial of petitioners Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed
a Petition for Certiorari under Rule 65 of the Rules of Civil Procedure before the Court of Appeals
maintaining that public respondent Judge acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in denying the admission of its Exhibits "A", "C", "D", "E", "H" and its sub-
markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings,
"O", "P" and its sub-markings, "Q" and its sub-markings, "R", and "S" and its sub-markings.

On 9 November 2005, the appellate court issued a Decision dismissing petitioners petition for
certiorari, the pertinent portions of which elucidate:

After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence
which are applicable in the premises, we have come up with a finding that the petition for certiorari
filed in this case is not meritorious.

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It appears that there is no sufficient showing by the petitioner that the respondent judge acted with
grave abuse of discretion in issuing the assailed orders in Civil Case No. CEB-18662. As what our
jurisprudence tells us, grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as would be equivalent to lack of jurisdiction x x x.

In the case at bench, what has been shown to the contrary by the totality of the record on hand is that
the respondent judge acted correctly and within the pale of his sound discretion in issuing the
assailed order, dated November 16, 2004, in Civil Case No. CEB-18662.

Indeed, it appears that the pieces of petitioners documentary evidence which were denied admission
by the respondent judge were not properly identified by any competent witness. As pointed out by the
respondent Bangpai Shipping Company in its comment on the petition filed in this case which
reproduces some excerpts of the testimonies in the court a quo of Atty. Marianito De Los Santos,
Engr. Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did not have personal
knowledge of and participation in the preparation and making of the pieces of documentary evidence
denied admission by respondent judge x x x. In other words, there was lack of proper identification of
said pieces of documentary evidence. x x x.

Then another ground for denying admission of petitioners Exhibits A, C, D, E, H, I, J, K, L, M, N, O,

P, Q, R, and S by the respondent judge is that said pieces of documentary evidence were merely
photocopies of purported documents or papers. There is no gainsaying the fact that the respondent
judge acted within the pale of his discretion when he denied admission of said documentary
evidence. Section 3 of Rule 130 of the Rules of Court of the Philippines is very explicit in providing
that, when the subject of inquiry are the contents of documents, no evidence shall be admissible
other than the original documents themselves, except in certain cases specifically so enumerated
therein, and the petitioner has not shown that the non-presentation or non-production of its original
documentary pieces of evidence falls under such exceptions. As aptly pointed out by the respondent
judge in the order issued by him on November 16, 2004:

"x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to
present the originals of the Xerox or photocopies of the documents it offered. It never produced said
originals."

So, the petitioner has only itself to blame for the respondent judges denial of admission of its
aforementioned documentary evidence.

Of course, the petitioner tries to contend that the photocopies of documents offered by it are
equivalent to the original documents that it sought to offer in evidence, based on the Rules on
Electronic Evidence which were in force and effect since August 1, 2001. However, such a contention
is devoid of merit. The pieces of documentary evidence offered by the petitioner in Civil Case CEB-
18662 which were denied admission by the respondent judge do not actually constitute as electronic
evidence as defined in the Rules on Electronic Evidence. The informations therein were not received,
retrieved or produced electronically. The petitioner has not adequately established that its
documentary evidence were electronic evidence. it has not properly authenticated such evidence as
electronic documents, assuming arguendo that they are. Lastly, the petitioner has not properly
established by affidavit pursuant to Rule 9 of the Rules on Electronic Evidence the admissibility and
evidentiary weight of said documentary evidence.

Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of
discretion in denying admission of the aforementioned documentary evidence of petitioner.

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But even if it be granted just for the sake of argument that the respondent judge committed an error in
denying the aforementioned documentary evidence of the petitioner, still the petition for certiorari filed
in this case must fail. Such error would at most be only an error of law and not an error of jurisdiction.
In Lee vs. People, 393 SCRA 397, the Supreme Court of the Philippines said that certiorari will not lie
in case of an error of law. x x x.

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING

the petition filed in this case and AFFIRMING the assailed orders issued by respondent judge in Civil
Case No. CEB-18662.4

Aggrieved by the aforequoted decision, petitioner filed the instant petition.

The focal point of this entire controversy is petitioners obstinate contention that the photocopies it
offered as formal evidence before the trial court are the functional equivalent of their original based
on its inimitable interpretation of the Rules on Electronic Evidence.

Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the
photocopies it presented as documentary evidence actually constitute electronic evidence based on
its own premise that an "electronic document" as defined under Section 1(h), Rule 2 of the Rules on
Electronic Evidence is not limited to information that is received, recorded, retrieved or produced
electronically. Rather, petitioner maintains that an "electronic document" can also refer to other
modes of written expression that is produced electronically, such as photocopies, as included in the
sections catch-all proviso: "any print-out or output, readable by sight or other means".

We do not agree.

In order to shed light to the issue of whether or not the photocopies are indeed electronic documents
as contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the
Electronic Commerce Act, as well as the Rules on Electronic Evidence, we shall enumerate the
following documents offered as evidence by the petitioner, to wit:

1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with
"RECEIVED" stamped thereon, together with a handwritten date;

2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioners power

barges 207 and 209 prepared by Hopewell Mobile Power Systems Corporation and manually
signed by Messrs. Rex Malaluan and Virgilio Asprer;

3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr.,
with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was
received;

4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and
accomplished by Rex Joel C. Malaluan in his own handwriting and signed by him. Portions of
the Jurat were handwritten, and manually signed by the Notary Public;

5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with
"RECEIVED" stamped thereon, together with a handwritten notation of the date it was
received;

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6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered
by petitioner which was manually signed by Mr. Nestor G. Enriquez, Jr.;

7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate,
manually signed by Mr. Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together
with a handwritten notation of the date it was received, and other handwritten notations;

8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a
manual typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten
notation when it was received by the party;

9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and
maintenance agreement between petitioner and Hopewell, containing handwritten notations
and every page containing three unidentified manually placed signatures;

10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex
Joel C. Malaluan, manually signed by Jaime S. Patinio, with a handwritten notation of the date
it was received. The sub-markings also contain manual signatures and/or handwritten
notations;

11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio
Asprer and manually signed by Jaime S. Patino. The sub-markings contain manual signatures
and/or handwritten notations;

12. Exhibit "O" is the same photocopied document marked as Annex C;

13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and
Bautista and by the Notary Public, with other handwritten notations;

14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary
Public, together with other handwritten notations.

On the other hand, an "electronic document" refers to information or the representation of

information, data, figures, symbols or other models of written expression, described or however
represented, by which a right is established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.5 It includes digitally signed documents and any printout, readable by sight or
other means which accurately reflects the electronic data message or electronic document. 6

The rules use the word "information" to define an electronic document received, recorded,
transmitted, stored, processed, retrieved or produced electronically. This would suggest that an
electronic document is relevant only in terms of the information contained therein, similar to any other
document which is presented in evidence as proof of its contents.7 However, what differentiates an
electronic document from a paper-based document is the manner by which the information is
processed; clearly, the information contained in an electronic document is received, recorded,
transmitted, stored, processed, retrieved or produced electronically.

A perusal of the information contained in the photocopies submitted by petitioner will reveal that not
all of the contents therein, such as the signatures of the persons who purportedly signed the
documents, may be recorded or produced electronically. By no stretch of the imagination can a
persons signature affixed manually be considered as information electronically received, recorded,
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transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since
these paper printouts were produced through an electronic process, then these photocopies are
electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not
preposterous, interpretation of the law. Having thus declared that the offered photocopies are not
tantamount to electronic documents, it is consequential that the same may not be considered as the
functional equivalent of their original as decreed in the law.

Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from
the records petitioners Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-
markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings,
"Q" and its sub-markings, and "R". The trial court was correct in rejecting these photocopies as they
violate the best evidence rule and are therefore of no probative value being incompetent pieces of
evidence. Before the onset of liberal rules of discovery, and modern technique of electronic copying,
the best evidence rule was designed to guard against incomplete or fraudulent proof and the
introduction of altered copies and the withholding of the originals. 8 But the modern justification for the
rule has expanded from the prevention of fraud to a recognition that writings occupy a central position
in the law.9The importance of the precise terms of writings in the world of legal relations, the fallibility
of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete
duplicate are the concerns addressed by the best evidence rule. 10

Moreover, as mandated under Section 2, Rule 130 of the Rules of Court:

"SECTION 2. Original writing must be produced; exceptions. There can be no evidence of a

writing the contents of which is the subject of inquiry, other than the original writing itself, except in
the following cases:

(a) When the original has been lost, destroyed, or cannot be produced in court;

(b) When the original is in the possession of the party against whom the evidence is offered,
and the latter fails to produce it after reasonable notice;

(c) When the original is a record or other document in the custody of a public officer;

(d) When the original has been recorded in an existing record a certified copy of which is made
evidence by law;

(e) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them is
only the general result of the whole."

When the original document has been lost or destroyed, or cannot be produced in court, the offeror,
upon proof of its execution or existence and the cause of its unavailability without bad faith on his
part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or
by the testimony of witnesses in the order stated.11 The offeror of secondary evidence is burdened to
prove the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of
the proponent/offeror which can be shown by circumstantial evidence of routine practices of
destruction of documents;12 (b) the proponent must prove by a fair preponderance of evidence as to
raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown
that a diligent and bona fide but unsuccessful search has been made for the document in the proper
place or places.13 However, in the case at bar, though petitioner insisted in offering the photocopies
as documentary evidence, it failed to establish that such offer was made in accordance with the
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exceptions as enumerated under the abovequoted rule. Accordingly, we find no error in the Order of
the court a quo denying admissibility of the photocopies offered by petitioner as documentary
evidence.

Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities
given by the trial court for it to present the originals of the photocopies it presented yet comes before
us now praying that it be allowed to present the originals of the exhibits that were denied admission
or in case the same are lost, to lay the predicate for the admission of secondary evidence. Had
petitioner presented the originals of the documents to the court instead of the photocopies it
obstinately offered as evidence, or at the very least laid the predicate for the admission of said
photocopies, this controversy would not have unnecessarily been brought before the appellate court
and finally to this Court for adjudication. Had it not been for petitioners intransigence, the merits of
petitioners complaint for damages would have been decided upon by the trial court long ago. As
aptly articulated by the Court of Appeals, petitioner has only itself to blame for the respondent judges
denial of admission of its aforementioned documentary evidence and consequently, the denial of its
prayer to be given another opportunity to present the originals of the documents that were denied
admission nor to lay the predicate for the admission of secondary evidence in case the same has
been lost.

WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the
Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED.
Costs against petitioner.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

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Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is
hereby certified that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

Footnotes
1Penned by Associate Justice Isaias P. Dicdican with Associate Justices Ramon M. Bato, Jr.
and Apolinario D. Bruselas, Jr., concurring; rollo, pp. 40-49.
2 Civil Case No. CEB-18662, penned by Judge Ramon. G. Codilla, Jr.; id. at 153-160.
3 RTC Order, pp. 5-6; id. at 54-55.
4 CA Decision, pp. 6-9; id. at 45-48.
5 Rules on Electronic Evidence, Rule 2, Sec. 1, par. (h).
6 Id.
7 Revised Rules on Evidence, Rule 130, Sec. 2.
8 Lee v. People of the Philippines, G.R. No. 159288, 19 October 2004, 440 SCRA 662, 683.
9 Id.
10 Id. citing Seller v. Lucas Films Ltd., 808 F. 2d 1316 (1989).
11 Id. citing RULES OF COURT, Rule 130, Sec. 5.
12 Id. citing United States v. Balzano, 687 Fed. 6; Wright v. Farmers Co-op, 681 F. 2d. 549.
13 Id. citing 32 Corpus Juris Secundum, id. at 773.

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Case 4

Republic of the Philippines

SUPREME COURT
Manila

A.M. No. 01-7-01-SC July 17, 2001

RULES ON ELECTRONIC EVIDENCE

Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the Rules of
Court to Draft the Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules on Electronic
Evidence for this Court's consideration and approval, the Court Resolved to APPROVED the same.

The Rules on Electronic Evidence shall apply to cases pending after their effectivity. These Rules
shall take effect on the first day of August 2001 following thier publication before the 20th of July in
two newspapers of general circulation in the Philippines

17th July 2001.

RULES ON ELECTRONIC EVIDENCE

Rule 1
COVERAGE

Section 1. Scope. Unless otherwise provided herein, these Rules shall apply whenever an
electronic document or electronic data message, as defined in Rule 2 hereof, is offered or used in
evidence.

Section 2. Cases covered. These Rules shall apply to all civil actions and proceedings, as well as
quasi-judicial and administrative cases.

Section 3. Application of other rules on evidence. In all matters not specifically covered by these
Rules, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall
apply.

Rule 2
DEFINITION OF TERMS AND CONSTRUCTION

Section 1. Definition of terms. For purposes of these Rules, the following terms are defined, as
follows:

(a) "Asymmetric or public cryptosystem" means a system capable of generating a secure key
pair, consisting of a private key for creating a digital signature, and a public key for verifying
the digital signature.

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(b) "Business records" include records of any business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or
illegitimate purposes.

(c) "Certificate" means an electronic document issued to support a digital signature which
purports to confirm the identity or other significant characteristics of the person who holds a
particular key pair.

(d) "Computer" refers to any single or interconnected device or apparatus, which, by

electronic, electro-mechanical or magnetic impulse, or by other means with the same function,
can receive, record, transmit, store, process, correlate, analyze, project, retrieve and/or
produce information, data, text, graphics, figures, voice, video, symbols or other modes of
expression or perform any one or more of these functions.

(e) "Digital signature" refers to an electronic signature consisting of a transformation of an

electronic document or an electronic data message using an asymmetric or public
cryptosystem such that a person having the initial untransformed electronic document and the
signer's public key can accurately determine:

i. whether the transformation was created using the private key that corresponds to the
signer's public key; and

ii. whether the initial electronic document had been altered after the transformation was
made.

(f) "Digitally signed" refers to an electronic document or electronic data message bearing a
digital signature verified by the public key listed in a certificate.

(g) "Electronic data message" refers to information generated, sent, received or stored by
electronic, optical or similar means.

(h) "Electronic document" refers to information or the representation of information, data,

figures, symbols or other modes of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed documents and any print-out or output,
readable by sight or other means, which accurately reflects the electronic data message or
electronic document. For purposes of these Rules, the term "electronic document" may be
used interchangeably with "electronic data message".

(i) "Electronic key" refers to a secret code which secures and defends sensitive information
that crosses over public channels into a form decipherable only with a matching electronic key.

(j) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a person and attached to or logically associated with the
electronic data message or electronic document or any methodology or procedure employed
or adopted by a person and executed or adopted by such person with the intention of
authenticating, signing or approving an electronic data message or electronic document. For
purposes of these Rules, an electronic signature includes digital signatures.

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(k) "Ephemeral electronic communication" refers to telephone conversations, text messages,
chatroom sessions, streaming audio, streaming video, and other electronic forms of
communication the evidence of which is not recorded or retained.

(l) "Information and communication system" refers to a system for generating, sending,
receiving, storing or otherwise processing electronic data messages or electronic documents
and includes the computer system or other similar devices by or in which data are recorded or
stored and any procedure related to the recording or storage of electronic data messages or
electronic documents.

(m) "Key pair" in an asymmetric cryptosystem refers to the private key and its mathematically
related public key such that the latter can verify the digital signature that the former creates.

(n) "Private key" refers to the key of a key pair used to create a digital signature.

(o) "Public key" refers to the key of a key pair used to verify a digital signature.

Section 2. Construction. These Rules shall be liberally construed to assist the parties in obtaining a
just, expeditious, and inexpensive determination of cases.

The interpretation of these Rules shall also take into consideration the international origin of Republic
Act No. 8792, otherwise known as the Electronic Commerce Act.

Rule 3
ELECTRONIC DOCUMENTS

Section 1. Electronic documents as functional equivalent of paper-based documents. Whenever a

rule of evidence refers to the term writing, document, record, instrument, memorandum or any other
form of writing, such term shall be deemed to include an electronic document as defined in these
Rules.

Section 2. Admissibility. An electronic document is admissible in evidence if it complies with the

rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the
manner prescribed by these Rules.

Section 3. Privileged communication. The confidential character of a privileged communication is

not lost solely on the ground that it is in the form of an electronic document.

Rule 4
BEST EVIDENCE RULE

Section 1. Original of an electronic document. An electronic document shall be regarded as the

equivalent of an original document under the Best Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data accurately.

Section 2. Copies as equivalent of the originals. When a document is in two or more copies
executed at or about the same time with identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by
chemical reproduction, or by other equivalent techniques which accurately reproduces the original,
such copies or duplicates shall be regarded as the equivalent of the original.

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Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the
original if:

(a) a genuine question is raised as to the authenticity of the original; or

(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the
original.

Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS

Section 1. Burden of proving authenticity. The person seeking to introduce an electronic document
in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule.

Section 2. Manner of authentication. Before any private electronic document offered as authentic is
received in evidence, its authenticity must be proved by any of the following means:

(a) by evidence that it had been digitally signed by the person purported to have signed the
same;

(b) by evidence that other appropriate security procedures or devices as may be authorized by
the Supreme Court or by law for authentication of electronic documents were applied to the
document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

Section 3. Proof of electronically notarized document. A document electronically notarized in

accordance with the rules promulgated by the Supreme Court shall be considered as a public
document and proved as a notarial document under the Rules of Court.

Rule 6
ELECTRONIC SIGNATURES

Section 1. Electronic signature. An electronic signature or a digital signature authenticated in the

manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature
of a person on a written document.

Section 2. Authentication of electronic signatures. An electronic signature may be authenticated in

any of the following manner:

(a) By evidence that a method or process was utilized to establish a digital signature and verify
the same;

(b) By any other means provided by law; or

(c) By any other means satisfactory to the judge as establishing the genuineness of the
electronic signature.

Section 3. Disputable presumptions relating to electronic signatures. Upon the authentication of an

electronic signature, it shall be presumed that:

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(a) The electronic signature is that of the person to whom it correlates;

(b) The electronic signature was affixed by that person with the intention of authenticating or
approving the electronic document to which it is related or to indicate such person's consent to
the transaction embodied therein; and

(c) The methods or processes utilized to affix or verify the electronic signature operated
without error or fault.

Section 4. Disputable presumptions relating to digital signatures. Upon the authentication of a

digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding
section, that:

(a) The information contained in a certificate is correct;

(b) The digital signature was created during the operational period of a certificate;

(c) No cause exists to render a certificate invalid or revocable;

(d) The message associated with a digital signature has not been altered from the time it was
signed; and,

(e) A certificate had been issued by the certification authority indicated therein.

Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

Section 1. Factors for assessing evidentiary weight. In assessing the evidentiary weight of an
electronic document, the following factors may be considered:

(a) The reliability of the manner or method in which it was generated, stored or communicated,
including but not limited to input and output procedures, controls, tests and checks for
accuracy and reliability of the electronic data message or document, in the light of all the
circumstances as well as any relevant agreement;

(b) The reliability of the manner in which its originator was identified;

(c) The integrity of the information and communication system in which it is recorded or stored,
including but not limited to the hardware and computer programs or software used as well as
programming errors;

(d) The familiarity of the witness or the person who made the entry with the communication
and information system;

(e) The nature and quality of the information which went into the communication and
information system upon which the electronic data message or electronic document was
based; or

(f) Other factors which the court may consider as affecting the accuracy or integrity of the
electronic document or electronic data message.

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Section 2. Integrity of an information and communication system. In any dispute involving the
integrity of the information and communication system in which an electronic document or electronic
data message is recorded or stored, the court may consider, among others, the following factors:

(a) Whether the information and communication system or other similar device was operated
in a manner that did not affect the integrity of the electronic document, and there are no other
reasonable grounds to doubt the integrity of the information and communication system;

(b) Whether the electronic document was recorded or stored by a party to the proceedings
with interest adverse to that of the party using it; or

(c) Whether the electronic document was recorded or stored in the usual and ordinary course
of business by a person who is not a party to the proceedings and who did not act under the
control of the party using it.

Rule 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

Section 1. Inapplicability of the hearsay rule. A memorandum, report, record or data compilation of
acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at
or near the time of or from transmission or supply of information by a person with knowledge thereof,
and kept in the regular course or conduct of a business activity, and such was the regular practice to
make the memorandum, report, record, or data compilation by electronic, optical or similar means, all
of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from
the rule on hearsay evidence.

Section 2. Overcoming the presumption. The presumption provided for in Section 1 of this Rule
may be overcome by evidence of the untrustworthiness of the source of information or the method or
circumstances of the preparation, transmission or storage thereof.

Rule 9
METHOD OF PROOF

Section 1. Affidavit evidence. All matters relating to the admissibility and evidentiary weight of an
electronic document may be established by an affidavit stating facts of direct personal knowledge of
the affiant or based on authentic records. The affidavit must affirmatively show the competence of the
affiant to testify on the matters contained therein.

Section 2. Cross-examination of deponent. The affiant shall be made to affirm the contents of the
affidavit in open court and may be cross-examined as a matter of right by the adverse party.

Rule 10
EXAMINATION OF WITNESSES

Section 1. Electronic testimony. After summarily hearing the parties pursuant to Rule 9 of these
Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before
so authorizing, the court shall determine the necessity for such presentation and prescribe terms and
conditions as may be necessary under the circumstances, including the protection of the rights of the
parties and witnesses concerned.

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Section 2. Transcript of electronic testimony. When examination of a witness is done electronically,
the entire proceedings, including the questions and answers, shall be transcribed by a stenographer,
stenotypist or other recorder authorized for the purpose, who shall certify as correct the transcript
done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had
been electronically recorded.

Section 3. Storage of electronic evidence. The electronic evidence and recording thereof as well as
the stenographic notes shall form part of the record of the case. Such transcript and recording shall
be deemed prima facie evidence of such proceedings.

Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

Section 1. Audio, video and similar evidence. Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it shall be shown, presented or displayed to the
court and shall be identified, explained or authenticated by the person who made the recording or by
some other person competent to testify on the accuracy thereof.

Section 2. Ephemeral electronic communications. Ephemeral electronic communications shall be

proven by the testimony of a person who was a party to the same or has personal knowledge thereof.
In the absence or unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered

by the immediately preceding section.

If the foregoing communications are recorded or embodied in an electronic document, then the
provisions of Rule 5 shall apply.

Rule 12
EFFECTIVITY

Section 1. Applicability to pending cases. These Rules shall apply to cases pending after their
effectivity.

Section 2. Effectivity. These Rules shall take effect on the first day of August 2001 following their
publication before the 20th of July 2001 in two newspapers of general circulation in the Philippines.

(Sgd.) HILARIO G. DAVIDE JR.

Chief Justice

(Sgd.) JOSUE N. BELLOSILLO (Sgd.) REYNATO S. PUNO

Associate Justice Associate Justice

(Sgd.) SANTIAGO M. KAPUNAN (Sgd.) ARTEMIO V. PANGANIBAN

Associate Justice Associate Justice

(Sgd.) BERNARDO P. PARDO (Sgd.) MINERVA P. GONZAGA-

Associate Justice REYES
Associate Justice

(Sgd.) SABINO R. DE LEON, JR. (Sgd.) JOSE C. VITUG

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Associate Justice Associate Justice

(out of town on official business)

(Sgd.) VICENTE V. MENDOZA (Sgd.) LEONARDO A QUISUMBING
Associate Justice Associate Justice

(Sgd.) ARTURO B. BUENA (Sgd.) CONSUELO YNARES-

Associate Justice SANTIAGO
Associate Justice

(on leave)
(Sgd.) ANGELINA SANDOVAL GUTIERREZ
Associate Justice

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Case 5

G.R. No. 170633 October 17, 2007

MCC INDUSTRIAL SALES CORPORATION, petitioner,

vs.
SSANGYONG CORPORATION, respondents.

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-
G.R. CV No. 82983 and its Resolution2 denying the motion for reconsideration thereof.

Petitioner MCC Industrial Sales (MCC), a domestic corporation with office at Binondo, Manila, is
engaged in the business of importing and wholesaling stainless steel products. 3 One of its suppliers
is the Ssangyong Corporation (Ssangyong),4 an international trading company5 with head office in
Seoul, South Korea and regional headquarters in Makati City, Philippines.6 The two corporations
conducted business through telephone calls and facsimile or telecopy transmissions. 7 Ssangyong
would send the pro forma invoices containing the details of the steel product order to MCC; if the
latter conforms thereto, its representative affixes his signature on the faxed copy and sends it back to
Ssangyong, again by fax.8

On April 13, 2000, Ssangyong Manila Office sent, by fax, a letter 9 addressed to Gregory Chan, MCC
Manager [also the President10 of Sanyo Seiki Stainless Steel Corporation], to confirm MCC's and
Sanyo Seiki's order of 220 metric tons (MT) of hot rolled stainless steel under a preferential rate
of US$1,860.00 per MT. Chan, on behalf of the corporations, assented and affixed his signature on
the conforme portion of the letter.11

On April 17, 2000, Ssangyong forwarded to MCC Pro Forma Invoice No. ST2-
POSTSO40112 containing the terms and conditions of the transaction. MCC sent back by fax to
Ssangyong the invoice bearing the conformity signature13 of Chan. As stated in the pro forma invoice,
payment for the ordered steel products would be made through an irrevocable letter of credit (L/C) at
sight in favor of Ssangyong.14 Following their usual practice, delivery of the goods was to be made
after the L/C had been opened.

In the meantime, because of its confirmed transaction with MCC, Ssangyong placed the order with its
steel manufacturer, Pohang Iron and Steel Corporation (POSCO), in South Korea15 and paid the
same in full.

Because MCC could open only a partial letter of credit, the order for 220MT of steel was split into
two,16 one for 110MT covered by Pro Forma Invoice No. ST2-POSTS0401-117 and another for
110MT covered by ST2-POSTS0401-2,18 both dated April 17, 2000.

On June 20, 2000, Ssangyong, through its Manila Office, informed Sanyo Seiki and Chan, by way of
a fax transmittal, that it was ready to ship 193.597MT of stainless steel from Korea to the Philippines.
It requested that the opening of the L/C be facilitated. 19 Chan affixed his signature on the fax
transmittal and returned the same, by fax, to Ssangyong.20

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Two days later, on June 22, 2000, Ssangyong Manila Office informed Sanyo Seiki, thru Chan, that it
was able to secure a US$30/MT price adjustment on the contracted price of US$1,860.00/MT for the
200MT stainless steel, and that the goods were to be shipped in two tranches, the first 100MT on that
day and the second 100MT not later than June 27, 2000. Ssangyong reiterated its request for the
facilitation of the L/C's opening.21

Ssangyong later, through its Manila Office, sent a letter, on June 26, 2000, to the Treasury Group of
Sanyo Seiki that it was looking forward to receiving the L/C details and a cable copy thereof that
day.22 Ssangyong sent a separate letter of the same date to Sanyo Seiki requesting for the opening
of the L/C covering payment of the first 100MT not later than June 28, 2000. 23 Similar letters were
transmitted by Ssangyong Manila Office on June 27, 2000. 24 On June 28, 2000, Ssangyong sent
another facsimile letter to MCC stating that its principal in Korea was already in a difficult
situation25 because of the failure of Sanyo Seiki and MCC to open the L/C's.

The following day, June 29, 2000, Ssangyong received, by fax, a letter signed by Chan, requesting
an extension of time to open the L/C because MCC's credit line with the bank had been fully availed
of in connection with another transaction, and MCC was waiting for an additional credit line.26 On the
same date, Ssangyong replied, requesting that it be informed of the date when the L/C would be
opened, preferably at the earliest possible time, since its Steel Team 2 in Korea was having problems
and Ssangyong was incurring warehousing costs.27 To maintain their good business relationship and
to support MCC in its financial predicament, Ssangyong offered to negotiate with its steel
manufacturer, POSCO, another US$20/MT discount on the price of the stainless steel ordered. This
was intimated in Ssangyong's June 30, 2000 letter to MCC.28 On July 6, 2000, another follow-up
letter29 for the opening of the L/C was sent by Ssangyong to MCC.

However, despite Ssangyong's letters, MCC failed to open a letter of credit. 30 Consequently, on
August 15, 2000, Ssangyong, through counsel, wrote Sanyo Seiki that if the L/C's were not opened,
Ssangyong would be compelled to cancel the contract and hold MCC liable for damages for breach
thereof amounting to US$96,132.18, inclusive of warehouse expenses, related interests and
charges.31

Later, Pro Forma Invoice Nos. ST2-POSTS080-132 and ST2-POSTS080-233 dated August 16, 2000
were issued by Ssangyong and sent via fax to MCC. The invoices slightly varied the terms of the
earlier pro forma invoices (ST2-POSTSO401, ST2-POSTS0401-1 and ST2-POSTS0401-2), in that
the quantity was now officially 100MT per invoice and the price was reduced to US$1,700.00 per MT.
As can be gleaned from the photocopies of the said August 16, 2000 invoices submitted to the court,
they both bear the conformity signature of MCC Manager Chan.

On August 17, 2000, MCC finally opened an L/C with PCIBank for US$170,000.00 covering payment
for 100MT of stainless steel coil under Pro Forma Invoice No. ST2-POSTS080-2.34 The goods
covered by the said invoice were then shipped to and received by MCC. 35

MCC then faxed to Ssangyong a letter dated August 22, 2000 signed by Chan, requesting for a price
adjustment of the order stated in Pro Forma Invoice No. ST2-POSTS080-1, considering that the
prevailing price of steel at that time was US$1,500.00/MT, and that MCC lost a lot of money due to a
recent strike.36

Ssangyong rejected the request, and, on August 23, 2000, sent a demand letter 37 to Chan for the
opening of the second and last L/C of US$170,000.00 with a warning that, if the said L/C was not
opened by MCC on August 26, 2000, Ssangyong would be constrained to cancel the contract and

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hold MCC liable for US$64,066.99 (representing cost difference, warehousing expenses, interests
and charges as of August 15, 2000) and other damages for breach. Chan failed to reply.

Exasperated, Ssangyong through counsel wrote a letter to MCC, on September 11, 2000, canceling
the sales contract under ST2-POSTS0401-1 /ST2-POSTS0401-2, and demanding payment of
US$97,317.37 representing losses, warehousing expenses, interests and charges. 38

Ssangyong then filed, on November 16, 2001, a civil action for damages due to breach of contract
against defendants MCC, Sanyo Seiki and Gregory Chan before the Regional Trial Court of Makati
City. In its complaint,39Ssangyong alleged that defendants breached their contract when they refused
to open the L/C in the amount of US$170,000.00 for the remaining 100MT of steel under Pro
Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2.

After Ssangyong rested its case, defendants filed a Demurrer to Evidence 40 alleging that Ssangyong
failed to present the original copies of the pro forma invoices on which the civil action was based. In
an Order dated April 24, 2003, the court denied the demurrer, ruling that the documentary evidence
presented had already been admitted in the December 16, 2002 Order 41 and their admissibility finds
support in Republic Act (R.A.) No. 8792, otherwise known as the Electronic Commerce Act of 2000.
Considering that both testimonial and documentary evidence tended to substantiate the material
allegations in the complaint, Ssangyong's evidence sufficed for purposes of a prima facie case.42

After trial on the merits, the RTC rendered its Decision 43 on March 24, 2004, in favor of Ssangyong.
The trial court ruled that when plaintiff agreed to sell and defendants agreed to buy the 220MT of
steel products for the price of US$1,860 per MT, the contract was perfected. The subject transaction
was evidenced by Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2, which were
later amended only in terms of reduction of volume as well as the price per MT, following Pro
Forma Invoice Nos. ST2-POSTS080-1 and ST2-POSTS080-2. The RTC, however, excluded Sanyo
Seiki from liability for lack of competent evidence. The fallo of the decision reads:

WHEREFORE, premises considered, Judgment is hereby rendered ordering defendants MCC

Industrial Sales Corporation and Gregory Chan, to pay plaintiff, jointly and severally the
following:

1) Actual damages of US$93,493.87 representing the outstanding principal claim plus interest
at the rate of 6% per annum from March 30, 2001.

2) Attorney's fees in the sum of P50,000.00 plus P2,000.00 per counsel's appearance in court,
the same being deemed just and equitable considering that by reason of defendants' breach of
their obligation under the subject contract, plaintiff was constrained to litigate to enforce its
rights and recover for the damages it sustained, and therefore had to engage the services of a
lawyer.

3) Costs of suit.

No award of exemplary damages for lack of sufficient basis.

SO ORDERED.44

On April 22, 2004, MCC and Chan, through their counsel of record, Atty. Eladio B. Samson, filed their
Notice of Appeal.45 On June 8, 2004, the law office of Castillo Zamora & Poblador entered its
appearance as their collaborating counsel.
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In their Appeal Brief filed on March 9, 2005, 46 MCC and Chan raised before the CA the following
errors of the RTC:

I. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT APPELLANTS

VIOLATED THEIR CONTRACT WITH APPELLEE

A. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT

APPELLANTS AGREED TO PURCHASE 200 METRIC TONS OF STEEL PRODUCTS
FROM APPELLEE, INSTEAD OF ONLY 100 METRIC TONS.

1. THE HONORABLE COURT A QUO PLAINLY ERRED IN ADMITTING IN

EVIDENCE THE PRO FORMA INVOICES WITH REFERENCE NOS. ST2-
POSTS0401-1 AND ST2-POSTS0401-2.

II. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ACTUAL DAMAGES
TO APPELLEE.

III. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ATTORNEY'S

FEES TO APPELLEE.

IV. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING APPELLANT

GREGORY CHAN JOINTLY AND SEVERALLY LIABLE WITH APPELLANT MCC.47

On August 31, 2005, the CA rendered its Decision 48 affirming the ruling of the trial court, but
absolving Chan of any liability. The appellate court ruled, among others, that Pro Forma Invoice
Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F") were admissible in
evidence, although they were mere facsimile printouts of MCC's steel orders.49 The dispositive
portion of the appellate court's decision reads:

WHEREFORE, premises considered, the Court holds:

(1) The award of actual damages, with interest, attorney's fees and costs ordered by the lower
court is hereby AFFIRMED.

(2) Appellant Gregory Chan is hereby ABSOLVED from any liability.

SO ORDERED.50

A copy of the said Decision was received by MCC's and Chan's principal counsel, Atty. Eladio B.
Samson, on September 14, 2005.51 Their collaborating counsel, Castillo Zamora &
Poblador,52 likewise, received a copy of the CA decision on September 19, 2005.53

On October 4, 2005, Castillo Zamora & Poblador, on behalf of MCC, filed a motion for
reconsideration of the said decision.54 Ssangyong opposed the motion contending that the decision of
the CA had become final and executory on account of the failure of MCC to file the said motion within
the reglementary period. The appellate court resolved, on November 22, 2005, to deny the motion on
its merits,55 without, however, ruling on the procedural issue raised.

Aggrieved, MCC filed a petition for review on certiorari56 before this Court, imputing the following
errors to the Court of Appeals:

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THE COURT OF APPEALS DECIDED A LEGAL QUESTION NOT IN ACCORDANCE WITH
JURISPRUDENCE AND SANCTIONED A DEPARTURE FROM THE USUAL AND
ACCEPTED COURSE OF JUDICIAL PROCEEDINGS BY REVERSING THE COURT A
QUO'S DISMISSAL OF THE COMPLAINT IN CIVIL CASE NO. 02-124 CONSIDERING THAT:

I. THE COURT OF APPEALS ERRED IN SUSTAINING THE ADMISSIBILITY IN

EVIDENCE OF THE PRO-FORMA INVOICES WITH REFERENCE NOS. ST2-
POSTSO401-1 AND ST2-POSTSO401-2, DESPITE THE FACT THAT THE SAME
WERE MERE PHOTOCOPIES OF FACSIMILE PRINTOUTS.

II. THE COURT OF APPEALS FAILED TO APPRECIATE THE OBVIOUS FACT THAT,
EVEN ASSUMING PETITIONER BREACHED THE SUPPOSED CONTRACT, THE
FACT IS THAT PETITIONER FAILED TO PROVE THAT IT SUFFERED ANY
DAMAGES AND THE AMOUNT THEREOF.

III. THE AWARD OF ACTUAL DAMAGES IN THE AMOUNT OF US$93,493.87 IS

SIMPLY UNCONSCIONABLE AND SHOULD HAVE BEEN AT LEAST REDUCED, IF
NOT DELETED BY THE COURT OF APPEALS.57

In its Comment, Ssangyong sought the dismissal of the petition, raising the following arguments: that
the CA decision dated 15 August 2005 is already final and executory, because MCC's motion for
reconsideration was filed beyond the reglementary period of 15 days from receipt of a copy thereof,
and that, in any case, it was a pro formamotion; that MCC breached the contract for the purchase of
the steel products when it failed to open the required letter of credit; that the printout copies and/or
photocopies of facsimile or telecopy transmissions were properly admitted by the trial court because
they are considered original documents under R.A. No. 8792; and that MCC is liable for actual
damages and attorney's fees because of its breach, thus, compelling Ssangyong to litigate.

The principal issues that this Court is called upon to resolve are the following:

I Whether the CA decision dated 15 August 2005 is already final and executory;

II Whether the print-out and/or photocopies of facsimile transmissions are electronic evidence and
admissible as such;

III Whether there was a perfected contract of sale between MCC and Ssangyong, and, if in the
affirmative, whether MCC breached the said contract; and

IV Whether the award of actual damages and attorney's fees in favor of Ssangyong is proper and
justified.

-I-

It cannot be gainsaid that in Albano v. Court of Appeals,58 we held that receipt of a copy of the
decision by one of several counsels on record is notice to all, and the period to appeal commences
on such date even if the other counsel has not yet received a copy of the decision. In this case, when
Atty. Samson received a copy of the CA decision on September 14, 2005, MCC had only fifteen (15)
days within which to file a motion for reconsideration conformably with Section 1, Rule 52 of the
Rules of Court, or to file a petition for review on certiorari in accordance with Section 2, Rule 45. The
period should not be reckoned from September 29, 2005 (when Castillo Zamora & Poblador received
their copy of the decision) because notice to Atty. Samson is deemed notice to collaborating counsel.
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We note, however, from the records of the CA, that it was Castillo Zamora & Poblador, not Atty.
Samson, which filed both MCC's and Chan's Brief and Reply Brief. Apparently, the arrangement
between the two counsels was for the collaborating, not the principal, counsel to file the appeal brief
and subsequent pleadings in the CA. This explains why it was Castillo Zamora & Poblador which filed
the motion for the reconsideration of the CA decision, and they did so on October 5, 2005, well within
the 15-day period from September 29, 2005, when they received their copy of the CA decision. This
could also be the reason why the CA did not find it necessary to resolve the question of the
timeliness of petitioner's motion for reconsideration, even as the CA denied the same.

Independent of this consideration though, this Court assiduously reviewed the records and found that
strong concerns of substantial justice warrant the relaxation of this rule.

In Philippine Ports Authority v. Sargasso Construction and Development Corporation,59 we ruled that:

In Orata v. Intermediate Appellate Court, we held that where strong considerations of

substantive justice are manifest in the petition, this Court may relax the strict application of the
rules of procedure in the exercise of its legal jurisdiction. In addition to the basic merits of the
main case, such a petition usually embodies justifying circumstance which warrants our
heeding to the petitioner's cry for justice in spite of the earlier negligence of counsel. As we
held in Obut v. Court of Appeals:

[W]e cannot look with favor on a course of action which would place the administration
of justice in a straight jacket for then the result would be a poor kind of justice if there
would be justice at all. Verily, judicial orders, such as the one subject of this petition, are
issued to be obeyed, nonetheless a non-compliance is to be dealt with as the
circumstances attending the case may warrant. What should guide judicial action is the
principle that a party-litigant is to be given the fullest opportunity to establish the merits
of his complaint or defense rather than for him to lose life, liberty, honor or property on
technicalities.

The rules of procedure are used only to secure and not override or frustrate justice. A six-day
delay in the perfection of the appeal, as in this case, does not warrant the outright dismissal of
the appeal. In Development Bank of the Philippines vs. Court of Appeals, we gave due course
to the petitioner's appeal despite the late filing of its brief in the appellate court because such
appeal involved public interest. We stated in the said case that the Court may exempt a
particular case from a strict application of the rules of procedure where the appellant failed to
perfect its appeal within the reglementary period, resulting in the appellate court's failure to
obtain jurisdiction over the case. In Republic vs. Imperial, Jr., we also held that there is more
leeway to exempt a case from the strictness of procedural rules when the appellate court has
already obtained jurisdiction over the appealed case. We emphasize that:

[T]he rules of procedure are mere tools intended to facilitate the attainment of justice,
rather than frustrate it. A strict and rigid application of the rules must always be
eschewed when it would subvert the rule's primary objective of enhancing fair trials and
expediting justice. Technicalities should never be used to defeat the substantive rights
of the other party. Every party-litigant must be afforded the amplest opportunity for the
proper and just determination of his cause, free from the constraints of technicalities.60

Moreover, it should be remembered that the Rules were promulgated to set guidelines in the orderly
administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be
consigned to being mere slaves to technical rules, deprived of their judicial discretion. Technicalities
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must take a backseat to substantive rights. After all, it is circumspect leniency in this respect that will
give the parties the fullest opportunity to ventilate the merits of their respective causes, rather than
have them lose life, liberty, honor or property on sheer technicalities.61

The other technical issue posed by respondent is the alleged pro forma nature of MCC's motion for
reconsideration, ostensibly because it merely restated the arguments previously raised and passed
upon by the CA.

In this connection, suffice it to say that the mere restatement of arguments in a motion for
reconsideration does not per se result in a pro forma motion. In Security Bank and Trust Company,
Inc. v. Cuenca,62 we held that a motion for reconsideration may not be necessarily pro forma even if it
reiterates the arguments earlier passed upon and rejected by the appellate court. A movant may
raise the same arguments precisely to convince the court that its ruling was erroneous. Furthermore,
the pro forma rule will not apply if the arguments were not sufficiently passed upon and answered in
the decision sought to be reconsidered.

- II -

The second issue poses a novel question that the Court welcomes. It provides the occasion for this
Court to pronounce a definitive interpretation of the equally innovative provisions of the Electronic
Commerce Act of 2000 (R.A. No. 8792) vis--vis the Rules on Electronic Evidence.

Although the parties did not raise the question whether the original facsimile transmissions are
"electronic data messages" or "electronic documents" within the context of the Electronic Commerce
Act (the petitioner merely assails as inadmissible evidence the photocopies of the said facsimile
transmissions), we deem it appropriate to determine first whether the said fax transmissions are
indeed within the coverage of R.A. No. 8792 before ruling on whether the photocopies thereof are
covered by the law. In any case, this Court has ample authority to go beyond the pleadings when, in
the interest of justice or for the promotion of public policy, there is a need to make its own findings in
order to support its conclusions.63

Petitioner contends that the photocopies of the pro forma invoices presented by respondent
Ssangyong to prove the perfection of their supposed contract of sale are inadmissible in evidence
and do not fall within the ambit of R.A. No. 8792, because the law merely admits as the best
evidence the original fax transmittal. On the other hand, respondent posits that, from a reading of the
law and the Rules on Electronic Evidence, the original facsimile transmittal of the pro forma invoice is
admissible in evidence since it is an electronic document and, therefore, the best evidence under the
law and the Rules. Respondent further claims that the photocopies of these fax transmittals
(specifically ST2-POSTS0401-1 and ST2-POSTS0401-2) are admissible under the Rules on
Evidence because the respondent sufficiently explained the non-production of the original fax
transmittals.

In resolving this issue, the appellate court ruled as follows:

Admissibility of Pro Forma

Invoices; Breach of Contract
by Appellants

Turning first to the appellants' argument against the admissibility of the Pro Forma Invoices
with Reference Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F",

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pp. 215-218, Records), appellants argue that the said documents are inadmissible (sic) being
violative of the best evidence rule.

The argument is untenable.

The copies of the said pro-forma invoices submitted by the appellee are admissible in
evidence, although they are mere electronic facsimile printouts of appellant's orders. Such
facsimile printouts are considered Electronic Documents under the New Rules on Electronic
Evidence, which came into effect on August 1, 2001. (Rule 2, Section 1 [h], A.M. No. 01-7-01-
SC).

"(h) 'Electronic document' refers to information or the representation of information,

data, figures, symbols or other modes of written expression, described or however
represented, by which a right is established or an obligation extinguished, or by which a
fact may be proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally signed documents
and any printout or output, readable by sight or other means, which accurately reflects
the electronic data message or electronic document. For purposes of these Rules, the
term 'electronic document' may be used interchangeably with 'electronic data message'.

An electronic document shall be regarded as the equivalent of an original document under the
Best Evidence Rule, as long as it is a printout or output readable by sight or other means,
showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)

The ruling of the Appellate Court is incorrect. R.A. No. 8792,64 otherwise known as the Electronic
Commerce Act of 2000, considers an electronic data message or an electronic document as the
functional equivalent of a written document for evidentiary purposes. 65 The Rules on Electronic
Evidence66 regards an electronic document as admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner
prescribed by the said Rules.67 An electronic document is also the equivalent of an original document
under the Best Evidence Rule, if it is a printout or output readable by sight or other means, shown to
reflect the data accurately.68

Thus, to be admissible in evidence as an electronic data message or to be considered as the

functional equivalent of an original document under the Best Evidence Rule, the writing must
foremost be an "electronic data message" or an "electronic document."

The Electronic Commerce Act of 2000 defines electronic data message and electronic document as
follows:

Sec. 5. Definition of Terms. For the purposes of this Act, the following terms are defined, as
follows:

xxx

c. "Electronic Data Message" refers to information generated, sent, received or stored by

electronic, optical or similar means.

xxx

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f. "Electronic Document" refers to information or the representation of information, data,
figures, symbols or other modes of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.

The Implementing Rules and Regulations (IRR) of R.A. No. 8792, 69 which was signed on July 13,
2000 by the then Secretaries of the Department of Trade and Industry, the Department of Budget and
Management, and then Governor of the Bangko Sentral ng Pilipinas, defines the terms as:

Sec. 6. Definition of Terms. For the purposes of this Act and these Rules, the following terms
are defined, as follows:

xxx

(e) "Electronic Data Message" refers to information generated, sent, received or stored by
electronic, optical or similar means, but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy. Throughout these Rules, the term "electronic data
message" shall be equivalent to and be used interchangeably with "electronic document."

xxxx

(h) "Electronic Document" refers to information or the representation of information, data,

figures, symbols or other modes of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically. Throughout these Rules, the term "electronic document" shall be
equivalent to and be used interchangeably with "electronic data message."

The phrase "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy" in the IRR's definition of "electronic data message" is copied from the Model Law on
Electronic Commerce adopted by the United Nations Commission on International Trade Law
(UNCITRAL),70 from which majority of the provisions of R.A. No. 8792 were taken.71 While Congress
deleted this phrase in the Electronic Commerce Act of 2000, the drafters of the IRR reinstated it. The
deletion by Congress of the said phrase is significant and pivotal, as discussed hereunder.

The clause on the interchangeability of the terms "electronic data message" and "electronic
document" was the result of the Senate of the Philippines' adoption, in Senate Bill 1902, of the
phrase "electronic data message" and the House of Representative's employment, in House Bill
9971, of the term "electronic document."72 In order to expedite the reconciliation of the two versions,
the technical working group of the Bicameral Conference Committee adopted both terms and
intended them to be the equivalent of each one. 73 Be that as it may, there is a slight difference
between the two terms. While "data message" has reference to information electronically sent, stored
or transmitted, it does not necessarily mean that it will give rise to a right or extinguish an
obligation,74 unlike an electronic document. Evident from the law, however, is the legislative intent to
give the two terms the same construction.

The Rules on Electronic Evidence promulgated by this Court defines the said terms in the following
manner:

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SECTION 1. Definition of Terms. For purposes of these Rules, the following terms are
defined, as follows:

xxxx

(g) "Electronic data message" refers to information generated, sent, received or stored by
electronic, optical or similar means.

(h) "Electronic document" refers to information or the representation of information, data,

figures, symbols or other modes of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed documents and print-out or output, readable
by sight or other means, which accurately reflects the electronic data message or electronic
document. For purposes of these Rules, the term "electronic document" may be used
interchangeably with "electronic data message."

Given these definitions, we go back to the original question: Is an original printout of a facsimile
transmission an electronic data message or electronic document?

The definitions under the Electronic Commerce Act of 2000, its IRR and the Rules on Electronic
Evidence, at first glance, convey the impression that facsimile transmissions are electronic data
messages or electronic documents because they are sent by electronic means. The expanded
definition of an "electronic data message" under the IRR, consistent with the UNCITRAL Model Law,
further supports this theory considering that the enumeration "xxx [is] not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy." And to telecopy is to send a
document from one place to another via a fax machine.75

As further guide for the Court in its task of statutory construction, Section 37 of the Electronic
Commerce Act of 2000 provides that

Unless otherwise expressly provided for, the interpretation of this Act shall give due regard to
its international origin and the need to promote uniformity in its application and the observance
of good faith in international trade relations. The generally accepted principles of international
law and convention on electronic commerce shall likewise be considered.

Obviously, the "international origin" mentioned in this section can only refer to the UNCITRAL Model
Law, and the UNCITRAL's definition of "data message":

"Data message" means information generated, sent, received or stored by electronic, optical
or similar means including, but not limited to, electronic data interchange (EDI), electronic mail,
telegram, telex or telecopy.76

is substantially the same as the IRR's characterization of an "electronic data message."

However, Congress deleted the phrase, "but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy," and replaced the term "data message" (as found in the
UNCITRAL Model Law ) with "electronic data message." This legislative divergence from what is
assumed as the term's "international origin" has bred uncertainty and now impels the Court to make
an inquiry into the true intent of the framers of the law. Indeed, in the construction or interpretation of
a legislative measure, the primary rule is to search for and determine the intent and spirit of the
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law.77 A construction should be rejected that gives to the language used in a statute a meaning that
does not accomplish the purpose for which the statute was enacted, and that tends to defeat the
ends which are sought to be attained by the enactment. 78

Interestingly, when Senator Ramon B. Magsaysay, Jr., the principal author of Senate Bill 1902 (the
predecessor of R.A. No. 8792), sponsored the bill on second reading, he proposed to adopt the term
"data message" as formulated and defined in the UNCITRAL Model Law. 79 During the period of
amendments, however, the term evolved into "electronic data message," and the phrase "but not
limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy" in the
UNCITRAL Model Law was deleted. Furthermore, the term "electronic data message," though
maintaining its description under the UNCITRAL Model Law, except for the aforesaid deleted
phrase, conveyed a different meaning, as revealed in the following proceedings:

xxxx

Senator Santiago. Yes, Mr. President. I will furnish a copy together with the explanation of this
proposed amendment.

And then finally, before I leave the Floor, may I please be allowed to go back to Section 5; the
Definition of Terms. In light of the acceptance by the good Senator of my proposed
amendments, it will then become necessary to add certain terms in our list of terms to be
defined. I would like to add a definition on what is "data," what is "electronic record" and what
is an "electronic record system."

If the gentleman will give me permission, I will proceed with the proposed amendment on
Definition of Terms, Section 5.

Senator Magsaysay. Please go ahead, Senator Santiago.

Senator Santiago. We are in Part 1, short title on the Declaration of Policy, Section 5,
Definition of Terms.

At the appropriate places in the listing of these terms that have to be defined since these are
arranged alphabetically, Mr. President, I would like to insert the term DATA and its definition.
So, the amendment will read: "DATA" MEANS REPRESENTATION, IN ANY FORM, OF
INFORMATION OR CONCEPTS.

The explanation is this: This definition of "data" or "data" as it is now fashionably pronounced
in America - - the definition of "data" ensures that our bill applies to any form of information in
an electronic record, whether these are figures, facts or ideas.

So again, the proposed amendment is this: "DATA" MEANS REPRESENTATIONS, IN ANY

FORM, OF INFORMATION OR CONCEPTS.

Senator Magsaysay. May I know how will this affect the definition of "Data Message" which
encompasses electronic records, electronic writings and electronic documents?

Senator Santiago. These are completely congruent with each other. These are compatible.
When we define "data," we are simply reinforcing the definition of what is a data message.

Senator Magsaysay. It is accepted, Mr. President.

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Senator Santiago. Thank you. The next term is "ELECTRONIC RECORD." The proposed
amendment is as follows:

"ELECTRONIC RECORD" MEANS DATA THAT IS RECORDED OR STORED ON ANY

MEDIUM IN OR BY A COMPUTER SYSTEM OR OTHER SIMILAR DEVICE, THAT CAN BE
READ OR PERCEIVED BY A PERSON OR A COMPUTER SYSTEM OR OTHER SIMILAR
DEVICE. IT INCLUDES A DISPLAY, PRINTOUT OR OTHER OUTPUT OF THAT DATA.

The explanation for this term and its definition is as follows: The term "ELECTRONIC
RECORD" fixes the scope of our bill. The record is the data. The record may be on any
medium. It is electronic because it is recorded or stored in or by a computer system or a
similar device.

The amendment is intended to apply, for example, to data on magnetic strips on cards or in
Smart cards. As drafted, it would not apply to telexes or faxes, except computer-generated
faxes, unlike the United Nations model law on electronic commerce. It would also not apply to
regular digital telephone conversations since the information is not recorded. It would apply to
voice mail since the information has been recorded in or by a device similar to a computer.
Likewise, video records are not covered. Though when the video is transferred to a website, it
would be covered because of the involvement of the computer. Music recorded by a computer
system on a compact disc would be covered.

In short, not all data recorded or stored in digital form is covered. A computer or a similar
device has to be involved in its creation or storage. The term "similar device" does not extend
to all devices that create or store data in digital form. Although things that are not recorded or
preserved by or in a computer system are omitted from this bill, these may well be admissible
under other rules of law. This provision focuses on replacing the search for originality proving
the reliability of systems instead of that of individual records and using standards to show
systems reliability.

Paper records that are produced directly by a computer system such as printouts are
themselves electronic records being just the means of intelligible display of the contents of the
record. Photocopies of the printout would be paper record subject to the usual rules about
copies, but the original printout would be subject to the rules of admissibility of this bill.

However, printouts that are used only as paper records and whose computer origin is never
again called on are treated as paper records. In that case, the reliability of the computer
system that produces the record is irrelevant to its reliability.

Senator Magsaysay. Mr. President, if my memory does not fail me, earlier, the lady Senator
accepted that we use the term "Data Message" rather than "ELECTRONIC RECORD" in being
consistent with the UNCITRAL term of "Data Message." So with the new amendment of
defining "ELECTRONIC RECORD," will this affect her accepting of the use of "Data Message"
instead of "ELECTRONIC RECORD"?

Senator Santiago. No, it will not. Thank you for reminding me. The term I would like to insert is
ELECTRONIC DATA MESSAGE in lieu of "ELECTRONIC RECORD."

Senator Magsaysay. Then we are, in effect, amending the term of the definition of "Data
Message" on page 2A, line 31, to which we have no objection.

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Senator Santiago. Thank you, Mr. President.

xxxx

Senator Santiago. Mr. President, I have proposed all the amendments that I desire to,
including the amendment on the effect of error or change. I will provide the language of the
amendment together with the explanation supporting that amendment to the distinguished
sponsor and then he can feel free to take it up in any session without any further intervention.

Senator Magsaysay. Before we end, Mr. President, I understand from the proponent of these
amendments that these are based on the Canadian E-commerce Law of 1998. Is that not
right?

Senator Santiago. That is correct.80

Thus, when the Senate consequently voted to adopt the term "electronic data message," it was
consonant with the explanation of Senator Miriam Defensor-Santiago that it would not apply "to
telexes or faxes, except computer-generated faxes, unlike the United Nations model law on electronic
commerce." In explaining the term "electronic record" patterned after the E-Commerce Law of
Canada, Senator Defensor-Santiago had in mind the term "electronic data message." This term then,
while maintaining part of the UNCITRAL Model Law's terminology of "data message," has assumed a
different context, this time, consonant with the term "electronic record" in the law of Canada. It
accounts for the addition of the word "electronic" and the deletion of the phrase "but not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." Noteworthy is that the
Uniform Law Conference of Canada, explains the term "electronic record," as drafted in the Uniform
Electronic Evidence Act, in a manner strikingly similar to Sen. Santiago's explanation during the
Senate deliberations:

"Electronic record" fixes the scope of the Act. The record is the data. The record may be any
medium. It is "electronic" because it is recorded or stored in or by a computer system or similar
device. The Act is intended to apply, for example, to data on magnetic strips on cards, or in
smart cards. As drafted, it would not apply to telexes or faxes (except computer-generated
faxes), unlike the United Nations Model Law on Electronic Commerce. It would also not apply
to regular digital telephone conversations, since the information is not recorded. It would apply
to voice mail, since the information has been recorded in or by a device similar to a computer.
Likewise video records are not covered, though when the video is transferred to a Web site it
would be, because of the involvement of the computer. Music recorded by a computer system
on a compact disk would be covered.

In short, not all data recorded or stored in "digital" form is covered. A computer or similar
device has to be involved in its creation or storage. The term "similar device" does not extend
to all devices that create or store data in digital form. Although things that are not recorded or
preserved by or in a computer system are omitted from this Act, they may well be admissible
under other rules of law. This Act focuses on replacing the search for originality, proving the
reliability of systems instead of that of individual records, and using standards to show
systems reliability.

Paper records that are produced directly by a computer system, such as printouts, are
themselves electronic records, being just the means of intelligible display of the contents of the
record. Photocopies of the printout would be paper records subject to the usual rules about
copies, but the "original" printout would be subject to the rules of admissibility of this Act.
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However, printouts that are used only as paper records, and whose computer origin is never
again called on, are treated as paper records. See subsection 4(2). In this case the reliability
of the computer system that produced the record is relevant to its reliability. 81

There is no question then that when Congress formulated the term "electronic data message," it
intended the same meaning as the term "electronic record" in the Canada law. This construction of
the term "electronic data message," which excludes telexes or faxes, except computer-generated
faxes, is in harmony with the Electronic Commerce Law's focus on "paperless" communications and
the "functional equivalent approach"82 that it espouses. In fact, the deliberations of the Legislature are
replete with discussions on paperless and digital transactions.

Facsimile transmissions are not, in this sense, "paperless," but verily are paper-based.

A facsimile machine, which was first patented in 1843 by Alexander Bain,83 is a device that can send
or receive pictures and text over a telephone line. It works by digitizing an imagedividing it into a
grid of dots. Each dot is either on or off, depending on whether it is black or white. Electronically,
each dot is represented by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax
machine translates a picture into a series of zeros and ones (called a bit map) that can be transmitted
like normal computer data. On the receiving side, a fax machine reads the incoming data, translates
the zeros and ones back into dots, and reprints the picture. 84 A fax machine is essentially an image
scanner, a modem and a computer printer combined into a highly specialized package. The scanner
converts the content of a physical document into a digital image, the modem sends the image data
over a phone line, and the printer at the other end makes a duplicate of the original
document.85 Thus, in Garvida v. Sales, Jr.,86where we explained the unacceptability of filing
pleadings through fax machines, we ruled that:

A facsimile or fax transmission is a process involving the transmission and reproduction of

printed and graphic matter by scanning an original copy, one elemental area at a time, and
representing the shade or tone of each area by a specified amount of electric current. The
current is transmitted as a signal over regular telephone lines or via microwave relay and is
used by the receiver to reproduce an image of the elemental area in the proper position and
the correct shade. The receiver is equipped with a stylus or other device that produces a
printed record on paper referred to as a facsimile.

x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original. Without the original, there is no way of determining on
its face whether the facsimile pleading is genuine and authentic and was originally signed by
the party and his counsel. It may, in fact, be a sham pleading.87

Accordingly, in an ordinary facsimile transmission, there exists an original paper-based information or

data that is scanned, sent through a phone line, and re-printed at the receiving end. Be it noted that
in enacting the Electronic Commerce Act of 2000, Congress intended virtual or paperless writings to
be the functional equivalent and to have the same legal function as paper-based
documents.88 Further, in a virtual or paperless environment, technically, there is no original copy to
speak of, as all direct printouts of the virtual reality are the same, in all respects, and are considered
as originals.89 Ineluctably, the law's definition of "electronic data message," which, as aforesaid, is
interchangeable with "electronic document," could not have included facsimile transmissions, which
have an original paper-based copy as sent and a paper-based facsimile copy as received. These two
copies are distinct from each other, and have different legal effects. While Congress anticipated
future developments in communications and computer technology90 when it drafted the law, it
excluded the early forms of technology, like telegraph, telex and telecopy (except computer-
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generated faxes, which is a newer development as compared to the ordinary fax machine to fax
machine transmission), when it defined the term "electronic data message."

Clearly then, the IRR went beyond the parameters of the law when it adopted verbatim the
UNCITRAL Model Law's definition of "data message," without considering the intention of Congress
when the latter deleted the phrase "but not limited to, electronic data interchange (EDI), electronic
mail, telegram, telex or telecopy." The inclusion of this phrase in the IRR offends a basic tenet in the
exercise of the rule-making power of administrative agencies. After all, the power of administrative
officials to promulgate rules in the implementation of a statute is necessarily limited to what is found
in the legislative enactment itself. The implementing rules and regulations of a law cannot extend the
law or expand its coverage, as the power to amend or repeal a statute is vested in the
Legislature.91 Thus, if a discrepancy occurs between the basic law and an implementing rule or
regulation, it is the former that prevails, because the law cannot be broadened by a mere
administrative issuancean administrative agency certainly cannot amend an act of Congress. 92 Had
the Legislature really wanted ordinary fax transmissions to be covered by the mantle of the Electronic
Commerce Act of 2000, it could have easily lifted without a bit of tatter the entire wordings of the
UNCITRAL Model Law.

Incidentally, the National Statistical Coordination Board Task Force on the Measurement of E-
Commerce,93 on November 22, 2006, recommended a working definition of "electronic commerce,"
as "[a]ny commercial transaction conducted through electronic, optical and similar medium, mode,
instrumentality and technology. The transaction includes the sale or purchase of goods and services,
between individuals, households, businesses and governments conducted over computer-mediated
networks through the Internet, mobile phones, electronic data interchange (EDI) and other channels
through open and closed networks." The Task Force's proposed definition is similar to the
Organization of Economic Cooperation and Development's (OECD's) broad definition as it covers
transactions made over any network, and, in addition, it adopted the following provisions of the
OECD definition: (1) for transactions, it covers sale or purchase of goods and services; (2) for
channel/network, it considers any computer-mediated network and NOT limited to Internet alone;
(3) it excludes transactions received/placed using fax, telephone or non-interactive mail; (4) it
considers payments done online or offline; and (5) it considers delivery made online (like
downloading of purchased books, music or software programs) or offline (deliveries of goods). 94

We, therefore, conclude that the terms "electronic data message" and "electronic document," as
defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission.
Accordingly, a facsimile transmissioncannot be considered as electronic evidence. It is not the
functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic
evidence.

Since a facsimile transmission is not an "electronic data message" or an "electronic document," and
cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such
a fax transmission not electronic evidence. In the present case, therefore, Pro Forma Invoice
Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"), which are mere
photocopies of the original fax transmittals, are not electronic evidence, contrary to the position of
both the trial and the appellate courts.

- III -

Nevertheless, despite the pro forma invoices not being electronic evidence, this Court finds that
respondent has proven by preponderance of evidence the existence of a perfected contract of sale.

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In an action for damages due to a breach of a contract, it is essential that the claimant proves (1) the
existence of a perfected contract, (2) the breach thereof by the other contracting party and (3) the
damages which he/she sustained due to such breach. Actori incumbit onus probandi. The burden of
proof rests on the party who advances a proposition affirmatively. 95 In other words, a plaintiff in a civil
action must establish his case by a preponderance of evidence, that is, evidence that has greater
weight, or is more convincing than that which is offered in opposition to it. 96

In general, contracts are perfected by mere consent,97 which is manifested by the meeting of the offer
and the acceptance upon the thing and the cause which are to constitute the contract. The offer must
be certain and the acceptance absolute.98 They are, moreover, obligatory in whatever form they may
have been entered into, provided all the essential requisites for their validity are present. 99 Sale,
being a consensual contract, follows the general rule that it is perfected at the moment there is a
meeting of the minds upon the thing which is the object of the contract and upon the price. From that
moment, the parties may reciprocally demand performance, subject to the provisions of the law
governing the form of contracts.100

The essential elements of a contract of sale are (1) consent or meeting of the minds, that is, to
transfer ownership in exchange for the price, (2) object certain which is the subject matter of the
contract, and (3) cause of the obligation which is established.101

In this case, to establish the existence of a perfected contract of sale between the parties, respondent
Ssangyong formally offered in evidence the testimonies of its witnesses and the following exhibits:

Exhibit Description Purpose

E Pro forma Invoice dated 17 To show that defendants
April 2000 with Contract contracted with plaintiff for the
No. ST2-POSTS0401- delivery of 110 MT of stainless
1, photocopy steel from Korea payable by way of
an irrevocable letter of credit in
favor of plaintiff, among other
conditions.
E-1 Pro forma Invoice dated 17 To show that defendants sent their
April 2000 with Contract confirmation of the (i) delivery to it
No. ST2- of the specified stainless steel
POSTS0401, contained in products, (ii) defendants' payment
facsimile/thermal paper thereof by way of an irrevocable
faxed by defendants to letter of credit in favor of plaintiff,
plaintiff showing the printed among other conditions.
transmission details on the
upper portion of said paper
as coming from defendant
MCC on 26 Apr 00
08:41AM
E-2 Conforme signature of Mr. To show that defendants sent their
Gregory Chan, contained in confirmation of the (i) delivery to it
facsimile/thermal paper of the total of 220MT specified
faxed by defendants to stainless steel products, (ii)
plaintiff showing the printed defendants' payment thereof by
transmission details on the way of an irrevocable letter of
upper portion of said paper credit in favor of plaintiff, among
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as coming from defendant other conditions.
MCC on 26 Apr 00
08:41AM
F Pro forma Invoice dated 17 To show that defendants
April 2000 with Contract contracted with plaintiff for delivery
No. ST2-POSTSO401- of another 110 MT of stainless
2, photocopy steel from Korea payable by way of
an irrevocable letter of credit in
favor of plaintiff, among other
conditions.
G Letter to defendant SANYO To prove that defendants were
SEIKE dated 20 June informed of the date of L/C opening
2000, contained in and defendant's conforme/approval
facsimile/thermal paper thereof.
G-1 Signature of defendant
Gregory Chan, contained in
facsimile/thermal paper.
H Letter to defendants dated To prove that defendants were
22 June 2000, original informed of the successful price
adjustments secured by plaintiff in
favor of former and were advised
of the schedules of its L/C opening.
I Letter to defendants dated To prove that plaintiff repeatedly
26 June 2000, original requested defendants for the
J Letter to defendants dated agreed opening of the Letters of
26 June 2000, original Credit, defendants' failure and
K Letter to defendants dated refusal to comply with their
27 June 2000, original obligations and the problems of
plaintiff is incurring by reason of
L Facsimile message to defendants' failure and refusal to
defendants dated 28 June open the L/Cs.
2000, photocopy
M Letter from defendants To prove that defendants admit of
dated 29 June their liabilities to plaintiff, that they
2000, contained in requested for "more extension" of
facsimile/thermal paper time for the opening of the Letter of
faxed by defendants to Credit, and begging for favorable
plaintiff showing the printed understanding and consideration.
transmission details on the
upper portion of said paper
as coming from defendant
MCC on 29 June 00 11:12
AM
M-1 Signature of defendant
Gregory Chan, contained in
facsimile/thermal paper
faxed by defendants to
plaintiff showing the printed
transmission details on the

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upper portion of said paper
as coming from defendant
MCC on June 00 11:12 AM
N Letter to defendants dated
29 June 2000, original
O Letter to defendants dated To prove that plaintiff reiterated its
30 June 2000, photocopy request for defendants to L/C
opening after the latter's request
for extension of time was granted,
defendants' failure and refusal to
comply therewith extension of time
notwithstanding.
P Letter to defendants dated
06 July 2000, original
Q Demand letter to To prove that plaintiff was
defendants dated 15 Aug constrained to engaged services of
2000, original a lawyer for collection efforts.
R Demand letter to To prove that defendants opened
defendants dated 23 Aug the first L/C in favor of plaintiff,
2000, original requested for further postponement
of the final L/C and for minimal
amounts, were urged to open the
final L/C on time, and were
informed that failure to comply will
cancel the contract.
S Demand letter to To show defendants' refusal and
defendants dated 11 Sept failure to open the final L/C on
2000, original time, the cancellation of the
contract as a consequence thereof,
and final demand upon defendants
to remit its obligations.
W Letter from plaintiff To prove that there was a
SSANGYONG to defendant perfected sale and purchase
SANYO SEIKI dated 13 agreement between the parties for
April 2000, with fax back 220 metric tons of steel products at
from defendants SANYO the price of US$1,860/ton.
SEIKI/MCC to plaintiff
SSANGYONG, contained in
facsimile/thermal paper with
back-up photocopy
W-1 Conforme signature of To prove that defendants, acting
defendant Gregory Chan, through Gregory Chan, agreed to
contained in the sale and purchase of 220
facsimile/thermal paper with metric tons of steel products at the
back-up photocopy price of US$1,860/ton.
W-2 Name of sender MCC To prove that defendants sent their
Industrial Sales Corporation conformity to the sale and
purchase agreement by facsimile
transmission.
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X Pro forma Invoice dated 16 To prove that defendant MCC
August 2000, photocopy agreed to adjust and split the
confirmed purchase order into 2
shipments at 100 metric tons each
at the discounted price of
US$1,700/ton.
X-1 Notation "1/2", photocopy To prove that the present Pro
forma Invoice was the first of 2 pro
forma invoices.
X-2 Ref. No. ST2-POSTS080- To prove that the present Pro
1, photocopy formaInvoice was the first of 2 pro
formainvoices.
X-3 Conforme signature of To prove that defendant MCC,
defendant Gregory acting through Gregory Chan,
Chan, photocopy agreed to the sale and purchase of
the balance of 100 metric tons at
the discounted price of
US$1,700/ton, apart from the other
order and shipment of 100 metric
tons which was delivered by
plaintiff SSANGYONG and paid for
by defendant MCC.
DD Letter from defendant MCC To prove that there was a
to plaintiff SSANGYONG perfected sale and purchase
dated 22 August agreement between plaintiff
2000, contained in SSANGYONG and defendant MCC
facsimile/thermal paper with for the balance of 100 metric tons,
back-up photocopy apart from the other order and
shipment of 100 metric tons which
was delivered by plaintiff
SSANGYONG and paid for by
defendant MCC.
DD-1 Ref. No. ST2-POSTS080- To prove that there was a
1, contained in perfected sale and purchase
facsimile/thermal paper with agreement between plaintiff
back-up photocopy SSANGYONG and defendant MCC
for the balance of 100 metric tons,
apart from the other order and
shipment of 100 metric tons which
was delivered by plaintiff
SSANGYONG and paid for by
defendant MCC.
DD-2 Signature of defendant To prove that defendant MCC,
Gregory Chan, contained in acting through Gregory Chan,
facsimile/thermal paper with agreed to the sale and purchase of
back-up photocopy the balance of 100 metric tons,
apart from the other order and
shipment of 100 metric tons which
was delivered by plaintiff

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Ssangyong and paid for by
defendant MCC.102

Significantly, among these documentary evidence presented by respondent, MCC, in its petition
before this Court, assails the admissibility only of Pro Forma Invoice Nos. ST2-POSTS0401-
1 and ST2-POSTS0401-2 (Exhibits "E" and "F"). After sifting through the records, the Court found
that these invoices are mere photocopies of their original fax transmittals. Ssangyong avers that
these documents were prepared after MCC asked for the splitting of the original order into two, so
that the latter can apply for an L/C with greater facility. It, however, failed to explain why the originals
of these documents were not presented.

To determine whether these documents are admissible in evidence, we apply the ordinary Rules on
Evidence, for as discussed above we cannot apply the Electronic Commerce Act of 2000 and the
Rules on Electronic Evidence.

Because these documents are mere photocopies, they are simply secondary evidence, admissible
only upon compliance with Rule 130, Section 5, which states, "[w]hen the original document has been
lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence
and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or
by a recital of its contents in some authentic document, or by the testimony of witnesses in the order
stated." Furthermore, the offeror of secondary evidence must prove the predicates thereof, namely:
(a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which
can be shown by circumstantial evidence of routine practices of destruction of documents; (b) the
proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the
loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but
unsuccessful search has been made for the document in the proper place or places. It has been held
that where the missing document is the foundation of the action, more strictness in proof is required
than where the document is only collaterally involved.103

Given these norms, we find that respondent failed to prove the existence of the original fax
transmissions of Exhibits E and F, and likewise did not sufficiently prove the loss or destruction of the
originals. Thus, Exhibits E and F cannot be admitted in evidence and accorded probative weight.

It is observed, however, that respondent Ssangyong did not rely merely on Exhibits E and F to prove
the perfected contract. It also introduced in evidence a variety of other documents, as enumerated
above, together with the testimonies of its witnesses. Notable among them are Pro Forma Invoice
Nos. ST2-POSTS080-1 and ST2-POSTS080-2 which were issued by Ssangyong and sent via fax to
MCC. As already mentioned, these invoices slightly varied the terms of the earlier invoices such that
the quantity was now officially 100MT per invoice and the price reduced to US$1,700.00 per MT. The
copies of the said August 16, 2000 invoices submitted to the court bear the conformity signature of
MCC Manager Chan.

Pro Forma Invoice No. ST2-POSTS080-1 (Exhibit "X"), however, is a mere photocopy of its original.
But then again, petitioner MCC does not assail the admissibility of this document in the instant
petition. Verily, evidence not objected to is deemed admitted and may be validly considered by the
court in arriving at its judgment.104 Issues not raised on appeal are deemed abandoned.

As to Pro Forma Invoice No. ST2-POSTS080-2 (Exhibits "1-A" and "2-C"), which was certified by
PCIBank as a true copy of its original,105 it was, in fact, petitioner MCC which introduced this
document in evidence. Petitioner MCC paid for the order stated in this invoice. Its admissibility,
therefore, is not open to question.
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These invoices (ST2-POSTS0401, ST2-POSTS080-1 and ST2-POSTS080-2), along with the other
unchallenged documentary evidence of respondent Ssangyong, preponderate in favor of the claim
that a contract of sale was perfected by the parties.

This Court also finds merit in the following observations of the trial court:

Defendants presented Letter of Credit (Exhibits "1", "1-A" to "1-R") referring to Pro Forma
Invoice for Contract No. ST2POSTS080-2, in the amount of US$170,000.00, and which bears
the signature of Gregory Chan, General Manager of MCC. Plaintiff, on the other hand,
presented Pro Forma Invoice referring to Contract No. ST2-POSTS080-1, in the amount of
US$170,000.00, which likewise bears the signature of Gregory Chan, MCC. Plaintiff
accounted for the notation "1/2" on the right upper portion of the Invoice, that is, that it was the
first of two (2) pro forma invoices covering the subject contract between plaintiff and the
defendants. Defendants, on the other hand, failed to account for the notation "2/2" in its Pro
Forma Invoice (Exhibit "1-A"). Observably further, both Pro Forma Invoices bear the same
date and details, which logically mean that they both apply to one and the same transaction. 106

Indeed, why would petitioner open an L/C for the second half of the transaction if there was no first
half to speak of?

The logical chain of events, as gleaned from the evidence of both parties, started with the petitioner
and the respondent agreeing on the sale and purchase of 220MT of stainless steel at US$1,860.00
per MT. This initial contract was perfected. Later, as petitioner asked for several extensions to pay,
adjustments in the delivery dates, and discounts in the price as originally agreed, the parties slightly
varied the terms of their contract, without necessarily novating it, to the effect that the original order
was reduced to 200MT, split into two deliveries, and the price discounted to US$1,700 per MT.
Petitioner, however, paid only half of its obligation and failed to open an L/C for the other 100MT.
Notably, the conduct of both parties sufficiently established the existence of a contract of sale, even if
the writings of the parties, because of their contested admissibility, were not as explicit in establishing
a contract.107 Appropriate conduct by the parties may be sufficient to establish an agreement, and
while there may be instances where the exchange of correspondence does not disclose the exact
point at which the deal was closed, the actions of the parties may indicate that a binding obligation
has been undertaken.108

With our finding that there is a valid contract, it is crystal-clear that when petitioner did not open the
L/C for the first half of the transaction (100MT), despite numerous demands from respondent
Ssangyong, petitioner breached its contractual obligation. It is a well-entrenched rule that the failure
of a buyer to furnish an agreed letter of credit is a breach of the contract between buyer and seller.
Indeed, where the buyer fails to open a letter of credit as stipulated, the seller or exporter is entitled to
claim damages for such breach. Damages for failure to open a commercial credit may, in appropriate
cases, include the loss of profit which the seller would reasonably have made had the transaction
been carried out.109

- IV -

This Court, however, finds that the award of actual damages is not in accord with the evidence on
record. It is axiomatic that actual or compensatory damages cannot be presumed, but must be
proven with a reasonable degree of certainty.110 In Villafuerte v. Court of Appeals,111 we explained
that:

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Actual or compensatory damages are those awarded in order to compensate a party for an
injury or loss he suffered. They arise out of a sense of natural justice and are aimed at
repairing the wrong done. Except as provided by law or by stipulation, a party is entitled to an
adequate compensation only for such pecuniary loss as he has duly proven. It is hornbook
doctrine that to be able to recover actual damages, the claimant bears the onus of presenting
before the court actual proof of the damages alleged to have been suffered, thus:

A party is entitled to an adequate compensation for such pecuniary loss actually

suffered by him as he has duly proved. Such damages, to be recoverable, must not
only be capable of proof, but must actually be proved with a reasonable degree of
certainty. We have emphasized that these damages cannot be presumed and courts, in
making an award must point out specific facts which could afford a basis for measuring
whatever compensatory or actual damages are borne.112

In the instant case, the trial court awarded to respondent Ssangyong US$93,493.87 as actual
damages. On appeal, the same was affirmed by the appellate court. Noticeably, however, the trial
and the appellate courts, in making the said award, relied on the following documents submitted in
evidence by the respondent: (1) Exhibit "U," the Statement of Account dated March 30, 2001; (2)
Exhibit "U-1," the details of the said Statement of Account); (3) Exhibit "V," the contract of the alleged
resale of the goods to a Korean corporation; and (4) Exhibit "V-1," the authentication of the resale
contract from the Korean Embassy and certification from the Philippine Consular Office.

The statement of account and the details of the losses sustained by respondent due to the said
breach are, at best, self-serving. It was respondent Ssangyong itself which prepared the said
documents. The items therein are not even substantiated by official receipts. In the absence of
corroborative evidence, the said statement of account is not sufficient basis to award actual
damages. The court cannot simply rely on speculation, conjecture or guesswork as to the fact and
amount of damages, but must depend on competent proof that the claimant had suffered, and on
evidence of, the actual amount thereof.113

Furthermore, the sales contract and its authentication certificates, Exhibits "V" and "V-1," allegedly
evidencing the resale at a loss of the stainless steel subject of the parties' breached contract, fail to
convince this Court of the veracity of its contents. The steel items indicated in the sales
contract114 with a Korean corporation are different in all respects from the items ordered by petitioner
MCC, even in size and quantity. We observed the following discrepancies:

List of commodities as stated in Exhibit "V":

COMMODITY: Stainless Steel HR Sheet in Coil, Slit

Edge
SPEC: SUS304 NO. 1
SIZE/Q'TY:
2.8MM X 1,219MM X C 8.193MT
3.0MM X 1,219MM X C 7.736MT
3.0MM X 1,219MM X C 7.885MT
3.0MM X 1,219MM X C 8.629MT
4.0MM X 1,219MM X C 7.307MT
4.0MM X 1,219MM X C 7.247MT
4.5MM X 1,219MM X C 8.450MT
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4.5MM X 1,219MM X C 8.870MT
5.0MM X 1,219MM X C 8.391MT
6.0MM X 1,219MM X C 6.589MT
6.0MM X 1,219MM X C 7.878MT
6.0MM X 1,219MM X C 8.397MT
TOTAL: 95.562MT115

List of commodities as stated in Exhibit "X" (the invoice that was not paid):

DESCRIPTION: Hot Rolled Stainless Steel Coil SUS 304

SIZE AND QUANTITY:
2.6 MM X 4' X C 10.0MT
3.0 MM X 4' X C 25.0MT
4.0 MM X 4' X C 15.0MT
4.5 MM X 4' X C 15.0MT
5.0 MM X 4' X C 10.0MT
6.0 MM X 4' X C 25.0MT
TOTAL: 100MT116

From the foregoing, we find merit in the contention of MCC that Ssangyong did not adequately prove
that the items resold at a loss were the same items ordered by the petitioner. Therefore, as the claim
for actual damages was not proven, the Court cannot sanction the award.

Nonetheless, the Court finds that petitioner knowingly breached its contractual obligation and
obstinately refused to pay despite repeated demands from respondent. Petitioner even asked for
several extensions of time for it to make good its obligation. But in spite of respondent's continuous
accommodation, petitioner completely reneged on its contractual duty. For such inattention and
insensitivity, MCC must be held liable for nominal damages. "Nominal damages are 'recoverable
where a legal right is technically violated and must be vindicated against an invasion that has
produced no actual present loss of any kind or where there has been a breach of contract and no
substantial injury or actual damages whatsoever have been or can be shown.'"117 Accordingly, the
Court awards nominal damages of P200,000.00 to respondent Ssangyong.

As to the award of attorney's fees, it is well settled that no premium should be placed on the right to
litigate and not every winning party is entitled to an automatic grant of attorney's fees. The party must
show that he falls under one of the instances enumerated in Article 2208 of the Civil Code. 118 In the
instant case, however, the Court finds the award of attorney's fees proper, considering that petitioner
MCC's unjustified refusal to pay has compelled respondent Ssangyong to litigate and to incur
expenses to protect its rights.

WHEREFORE, PREMISES CONSIDERED, the appeal is PARTIALLY GRANTED. The Decision of

the Court of Appeals in CA-G.R. CV No. 82983 is MODIFIED in that the award of actual damages
is DELETED. However, petitioner is ORDERED to pay respondent NOMINAL DAMAGES in the
amount of P200,000.00, and the ATTORNEY'S FEES as awarded by the trial court.

SO ORDERED.

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Ynares-Santiago, Chairperson, Austria-Martinez, Chico-Nazario, Reyes, JJ., concur.

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Case 6

G.R. No. 170338 December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC
ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS, respondents.

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

G.R. No. 179275 December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE
PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.

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

MAJ. LINDSAY REX SAGGE, petitioner-in-intervention

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

AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON, PANFILO

M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors

DECISION

NACHURA, J.:

More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly
between the President of the Philippines and a high-ranking official of the Commission on Elections
(COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a
controversy that placed the legitimacy of the present administration on the line, and resulted in the
near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci" tapes,
allegedly contained the Presidents instructions to COMELEC Commissioner Virgilio Garcillano to
manipulate in her favor results of the 2004 presidential elections. These recordings were to become
the subject of heated legislative hearings conducted separately by committees of both Houses of
Congress.1

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G.
Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional
investigation jointly conducted by the Committees on Public Information, Public Order and Safety,
National Defense and Security, Information and Communications Technology, and Suffrage and
Electoral Reforms (respondent House Committees). During the inquiry, several versions of the
wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI)
Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel
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Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the
supposed three-hour taped conversation. After prolonged and impassioned debate by the committee
members on the admissibility and authenticity of the recordings, the tapes were eventually played in
the chambers of the House.2

On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely.
Nevertheless, they decided to prepare committee reports based on the said recordings and the
testimonies of the resource persons.3

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a
Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of
Preliminary Injunction4docketed as G.R. No. 170338. He prayed that the respondent House
Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped
conversations in their committee reports and for any other purpose. He further implored that the said
recordings and any reference thereto be ordered stricken off the records of the inquiry, and the
respondent House Committees directed to desist from further using the recordings in any of the
House proceedings.5

Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly
stopped.

After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a
privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson
promised to provide the public "the whole unvarnished truth the whats, whens, wheres, whos and
whys" of the alleged wiretap, and sought an inquiry into the perceived willingness of
telecommunications providers to participate in nefarious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to the Senate
Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had
previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping equipment
and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties. 7

In the Senates plenary session the following day, a lengthy debate ensued when Senator Richard
Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 4200 8 if the body
were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-
Santiago delivered a privilege speech, articulating her considered view that the Constitution
absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci"
tapes. However, she recommended a legislative investigation into the role of the Intelligence Service
of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal
wiretapping of public officials.9

On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the
Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction, 10 docketed as G.R. No. 179275,
seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main
that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the
Constitution.11

As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the
"Hello Garci" tapes on September 7,12 1713 and October 1,14 2007.

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Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino,
Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F.
Trillanes filed their Comment16 on the petition on September 25, 2007.

The Court subsequently heard the case on oral argument. 17

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource
persons summoned by the Senate to appear and testify at its hearings, moved to intervene as
petitioner in G.R. No. 179275.18

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275. 19

It may be noted that while both petitions involve the "Hello Garci" recordings, they have different
objectivesthe first is poised at preventing the playing of the tapes in the House and their subsequent
inclusion in the committee reports, and the second seeks to prohibit and stop the conduct of the
Senate inquiry on the wiretapped conversation.

The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275.

-I-

Before delving into the merits of the case, the Court shall first resolve the issue on the parties
standing, argued at length in their pleadings.

In Tolentino v. COMELEC,20 we explained that "[l]egal standing or locus standi refers to a personal
and substantial interest in a case such that the party has sustained or will sustain direct injury
because of the challenged governmental act x x x," thus,

generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely
to be redressed by a favorable action.21

The gist of the question of standing is whether a party has "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional
questions."22

However, considering that locus standi is a mere procedural technicality, the Court, in recent cases,
has relaxed the stringent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and rulings." 24 The
fairly recent Chavez v. Gonzales25 even permitted a non-member of the broadcast media, who failed
to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary of
Justice and the National Telecommunications Commission. The majority, in the said case, echoed
the current policy that "this Court has repeatedly and consistently refused to wield procedural barriers
as impediments to its addressing and resolving serious legal questions that greatly impact on public
interest, in keeping with the Courts duty under the 1987 Constitution to determine whether or not
other branches of government have kept themselves within the limits of the Constitution and the laws,
and that they have not abused the discretion given to them." 26

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In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that
he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the
members of the respondent committees as one of the voices in the recordings.27 Obviously,
therefore, petitioner Garcillano stands to be directly injured by the House committees actions and
charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition.

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are
concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any
attempt to use the "Hello Garci" tapes will further divide the country. They wish to see the legal and
proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are
worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation. 28

Intervenor Sagge alleges violation of his right to due process considering that he is summoned to
attend the Senate hearings without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of the
intended legislation which underpins the investigation. He further intervenes as a taxpayer bewailing
the useless and wasteful expenditure of public funds involved in the conduct of the questioned
hearings.29

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that
intervenor Sagge asserts his constitutional right to due process,30 they satisfy the requisite personal
stake in the outcome of the controversy by merely being citizens of the Republic.

Following the Courts ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient
petitioners Ranadas and Agcaoilis and intervenor Sagges allegation that the continuous conduct by
the Senate of the questioned legislative inquiry will necessarily involve the expenditure of public
funds.32 It should be noted that in Francisco, rights personal to then Chief Justice Hilario G. Davide,
Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this case, they invariably invoked the
vindication of their own rightsas taxpayers, members of Congress, citizens, individually or in a class
suit, and members of the bar and of the legal professionwhich were also supposedly violated by the
therein assailed unconstitutional acts.33

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor
Sagge advance constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. The issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, and should be resolved for the
guidance of all.34

Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases
climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners
Ranada and Agcaoili and intervenor Sagge.

- II -

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed
in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies. 35 By actual cases, we mean existing
conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise the
decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not extend
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to hypothetical questions because any attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities. 36 Neither will the Court determine a
moot question in a case in which no practical relief can be granted. A case becomes moot when its
purpose has become stale.37 It is unnecessary to indulge in academic discussion of a case
presenting a moot question as a judgment thereon cannot have any practical legal effect or, in the
nature of things, cannot be enforced.38

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance
of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings
and from including the same in their committee report. He likewise prays that the said tapes be
stricken off the records of the House proceedings. But the Court notes that the recordings were
already played in the House and heard by its members. 39 There is also the widely publicized fact that
the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in
plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished.41

- III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to
continue with the conduct of the questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of
Representatives, or any of its respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure." The requisite of publication of the rules is
intended to satisfy the basic requirements of due process.42 Publication is indeed imperative, for it will
be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule
of which he had no notice whatsoever, not even a constructive one. 43What constitutes publication is
set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days
following the completion of their publication either in the Official Gazette, or in a newspaper of
general circulation in the Philippines."44

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006.45 With respect to the present Senate of
the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007,
no effort was undertaken for the publication of these rules when they first opened their session.

Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on
Accountability of Public Officers and Investigations,46 we said:

Fourth, we find merit in the argument of the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance
with the "duly published rules of procedure." We quote the OSGs explanation:

The phrase "duly published rules of procedure" requires the Senate of every Congress
to publish its rules of procedure governing inquiries in aid of legislation because every
Senate is distinct from the one before it or after it. Since Senatorial elections are held
every three (3) years for one-half of the Senates membership, the composition of the
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Senate also changes by the end of each term. Each Senate may thus enact a different
set of rules as it may deem fit. Not having published its Rules of Procedure, the subject
hearings in aid of legislation conducted by the 14 th Senate, are therefore, procedurally
infirm.

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the
following rationalization:

The present Senate under the 1987 Constitution is no longer a continuing legislative body. The
present Senate has twenty-four members, twelve of whom are elected every three years for a
term of six years each. Thus, the term of twelve Senators expires every three years, leaving
less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like
the 1935 Constitution, requires a majority of Senators to "constitute a quorum to do business."
Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution
is not a continuing body because less than majority of the Senators continue into the next
Congress. The consequence is that the Rules of Procedure must be republished by the
Senate after every expiry of the term of twelve Senators.47

The subject was explained with greater lucidity in our Resolution48 (On the Motion for
Reconsideration) in the same case, viz.:

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing," as it is not
dissolved as an entity with each national election or change in the composition of its members.
However, in the conduct of its day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress before it. The Rules of the Senate
itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.

All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present for the first time.

Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and practicality of such a rule is readily
apparent considering that the Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should not be bound by the acts and
deliberations of the Senate of which they had no part. If the Senate is a continuing body even
with respect to the conduct of its business, then pending matters will not be deemed
terminated with the expiration of one Congress but will, as a matter of course, continue into the
next Congress with the same status.

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This dichotomy of the continuity of the Senate as an institution and of the opposite nature of
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates
main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented at
least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain
in force until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into account the new composition of the
Senate after an election and the possibility of the amendment or revision of the Rules at the
start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be
valid from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation." The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into the next Congress. The
Senate of the next Congress may easily adopt different rules for its legislative inquiries which
come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or
otherwise make the published rules clearly state that the same shall be effective in subsequent
Congresses or until they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.

Respondents justify their non-observance of the constitutionally mandated publication by arguing that
the rules have never been amended since 1995 and, despite that, they are published in booklet form
available to anyone for free, and accessible to the public at the Senates internet web page. 49

The Court does not agree. The absence of any amendment to the rules cannot justify the Senates
defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The
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organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of procedure, and does not make any
distinction whether or not these rules have undergone amendments or revision. The constitutional
mandate to publish the said rules prevails over any custom, practice or tradition followed by the
Senate.

Justice Carpios response to the same argument raised by the respondents is illuminating:

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the Taada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of general circulation. The Rules of
Procedure even provide that the rules "shall take effect seven (7) days after publication in two
(2) newspapers of general circulation," precluding any other form of publication. Publication in
accordance with Taada is mandatory to comply with the due process requirement because
the Rules of Procedure put a persons liberty at risk. A person who violates the Rules of
Procedure could be arrested and detained by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792,50 otherwise known as the
Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all
the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as
the functional equivalent of a written document only for evidentiary purposes.51 In other words, the
law merely recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents.52 It does not make the internet a medium for publishing laws,
rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases.
The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have
caused the publication of the rules, because it can do so only "in accordance with its duly published
rules of procedure."

Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we
take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought
to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be undertaken by the respondent Senate
Committees, because no published rules governed it, in clear contravention of the Constitution.

With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in
the consolidated petitions.

WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275 is
GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the Philippines
and/or any of its committees from conducting any inquiry in aid of legislation centered on the "Hello
Garci" tapes.

SO ORDERED.

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Case 7

G.R. No. 182835 April 20, 2010

RUSTAN ANG y PASCUA, Petitioner,

vs.
THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.

DECISION

ABAD, J.:

This case concerns a claim of commission of the crime of violence against women when a former
boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it.

The Indictment

The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial
Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act
or Republic Act (R.A.) 9262 in an information that reads:

That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines
and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and
feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS)
using his mobile phone, a pornographic picture to one Irish Sagud, who was his former girlfriend,
whereby the face of the latter was attached to a completely naked body of another woman making it
to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture
thereby causing substantial emotional anguish, psychological distress and humiliation to the said Irish
Sagud.1

The Facts and the Case

The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan
were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became
"on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had
taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him.

Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with
him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and
told Rustan to take on his responsibility to the other woman and their child. Irish changed her
cellphone number but Rustan somehow managed to get hold of it and sent her text messages.
Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-
8084768. Irish replied to his text messages but it was to ask him to leave her alone.

In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a
picture of a naked woman with spread legs and with Irishs face superimposed on the figure (Exhibit
A).2 The senders cellphone number, stated in the message, was 0921-8084768, one of the numbers
that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they
were in Baguio in 2003 (Exhibit B).3
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After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it
would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the
picture he sent through the internet. One of the messages he sent to Irish, written in text messaging
shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng
chatter."4

Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police
supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture
and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada,
Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the
waiting police officers intercepted and arrested him. They searched him and seized his Sony
Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police
station, he shouted at Irish: "Malandi ka kasi!"

Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in
information technology and computer graphics. He said that it was very much possible for one to lift
the face of a woman from a picture and superimpose it on the body of another woman in another
picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and
the body belonged to just one person.

Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was
not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake and
the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained how
this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson P900
seized from Rustan.

For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003
and their relation lasted until December of that year. He claimed that after their relation ended, Irish
wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that time
(later his wife) was already pregnant, Irish walked out on him.

Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort as
she needed his help in selling her cellphone. When he arrived at the place, two police officers
approached him, seized his cellphone and the contents of his pockets, and brought him to the police
station.

Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a
prankster who was sending her malicious text messages. Rustan got the senders number and,
pretending to be Irish, contacted the person. Rustan claims that he got back obscene messages from
the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the
obscene messages appeared to have originated from his cellphone number. Rustan claims that it
was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six pictures of a
woman whom he identified as Irish (Exhibits 2 to 7).5

Michelle Ang (Michelle), Rustans wife, testified that she was sure Irish sent the six pictures. Michelle
claims that she received the pictures and hid the memory card (Exhibit 8) that contained them
because she was jealous and angry. She did not want to see anything of Irish. But, while the woman
in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the face
of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman in
those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed.

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After trial, the RTC found Irishs testimony completely credible, given in an honest and spontaneous
manner. The RTC observed that she wept while recounting her experience, prompting the court to
comment: "Her tears were tangible expression of pain and anguish for the acts of violence she
suffered in the hands of her former sweetheart. The crying of the victim during her testimony is
evidence of the credibility of her charges with the verity borne out of human nature and
experience."6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the violation
of Section 5(h) of R.A. 9262.

On Rustans appeal to the Court of Appeals (CA),7 the latter rendered a decision dated January 31,
2008,8 affirming the RTC decision. The CA denied Rustans motion for reconsideration in a resolution
dated April 25, 2008. Thus, Rustan filed the present for review on certiorari.

The Issues Presented

The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message
the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological
distress, and humiliation on her in violation of Section 5(h) of R.A. 9262.

The subordinate issues are:

1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is
defined in R.A. 9262;

2. Whether or not a single act of harassment, like the sending of the nude picture in this case,
already constitutes a violation of Section 5(h) of R.A. 9262;

3. Whether or not the evidence used to convict Rustan was obtained from him in violation of
his constitutional rights; and

4. Whether or not the RTC properly admitted in evidence the obscene picture presented in the
case.

The Courts Rulings

Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person
against a woman with whom he has or had a sexual or dating relationship. Thus:

SEC. 3. Definition of Terms. As used in this Act,

(a) "Violence against women and their children" refers to any act or a series of acts committed
by any person against a woman who is his wife, former wife, or against a woman with whom
the person has or had a sexual or dating relationship, or with whom he has a common child, or
against her child whether legitimate or illegitimate, within or without the family abode, which
result in or is likely to result in physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty.

xxxx

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Section 5 identifies the act or acts that constitute violence against women and these include
any form of harassment that causes substantial emotional or psychological distress to a
woman. Thus:

SEC. 5. Acts of Violence Against Women and Their Children. The crime of violence against
women and their children is committed through any of the following acts:

xxxx

h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that

alarms or causes substantial emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts:

xxxx

5. Engaging in any form of harassment or violence;

The above provisions, taken together, indicate that the elements of the crime of violence against
women through harassment are:

1. The offender has or had a sexual or dating relationship with the offended woman;

2. The offender, by himself or through another, commits an act or series of acts of harassment
against the woman; and

3. The harassment alarms or causes substantial emotional or psychological distress to her.

One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a
"dating relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation
where the parties are romantically involved over time and on a continuing basis during the course of
the relationship. Thus:

(e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the
benefit of marriage or are romantically involved over time and on a continuing basis during the course
of the relationship. A casual acquaintance or ordinary socialization between two individuals in a
business or social context is not a dating relationship. (Underscoring supplied.)

Here, Rustan claims that, being "romantically involved," implies that the offender and the offended
woman have or had sexual relations. According to him, "romance" implies a sexual act. He cites
Websters Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal
meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He
romanced her."

But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies
a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it
used the noun "romance" to describe a couples relationship, i.e., "a love affair."9

R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of
acts committed by any person against a woman x x x with whom the person has or had a
sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating
relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines
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"sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing
of a common child." The dating relationship that the law contemplates can, therefore, exist even
without a sexual intercourse taking place between those involved.

Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety
(away-bati), their romance cannot be regarded as having developed "over time and on a continuing
basis." But the two of them were romantically involved, as Rustan himself admits, from October to
December of 2003. That would be time enough for nurturing a relationship of mutual trust and love.

An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking
place does not mean that the romantic relation between the two should be deemed broken up during
periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when
she could not reply to Rustans messages, he would get angry at her. That was all. Indeed, she
characterized their three-month romantic relation as continuous.10

Two. Rustan argues that the one act of sending an offensive picture should not be considered a form
of harassment. He claims that such would unduly ruin him personally and set a very dangerous
precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence
against women. This means that a single act of harassment, which translates into violence, would be
enough. The object of the law is to protect women and children. Punishing only violence that is
repeatedly committed would license isolated ones.

Rustan alleges that todays women, like Irish, are so used to obscene communications that her
getting one could not possibly have produced alarm in her or caused her substantial emotional or
psychological distress. He claims having previously exchanged obscene pictures with Irish such that
she was already desensitized by them.

But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not
impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It
is doubtful if the woman in the picture was Irish since her face did not clearly show on them.

Michelle, Rustans wife, claimed that she deleted several other pictures that Irish sent, except
Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2
to 7 had remained saved after she deleted the pictures. Later, however, she said that she did not
have time to delete them.11 And, if she thought that she had deleted all the pictures from the memory
card, then she had no reason at all to keep and hide such memory card. There would have been
nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for
her to keep it for several years, given that as she said she was too jealous to want to see anything
connected to Irish. Thus, the RTC was correct in not giving credence to her testimony.1avvphi1

Secondly, the Court cannot measure the trauma that Irish experienced based on Rustans low regard
for the alleged moral sensibilities of todays youth. What is obscene and injurious to an offended
woman can of course only be determined based on the circumstances of each case. Here, the naked
woman on the picture, her legs spread open and bearing Irishs head and face, was clearly an
obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish, who is not in
the pornography trade, would be scandalized and pained if she sees herself in such a picture. What
makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat to post it in the
internet for all to see. That must have given her a nightmare.

Three. Rustan argues that, since he was arrested and certain items were seized from him without
any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that
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the prosecution did not present in evidence either the cellphone or the SIM cards that the police
officers seized from him at the time of his arrest. The prosecution did not need such items to prove its
case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900
cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference.

Actually, though, the bulk of the evidence against him consisted in Irishs testimony that she received
the obscene picture and malicious text messages that the senders cellphone numbers belonged to
Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone
numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to
Lorentess Resort and he did.12 Consequently, the prosecution did not have to present the confiscated
cellphone and SIM cards to prove that Rustan sent those messages.

Moreover, Rustan admitted having sent the malicious text messages to Irish.13 His defense was that
he himself received those messages from an unidentified person who was harassing Irish and he
merely forwarded the same to her, using his cellphone. But Rustan never presented the cellphone
number of the unidentified person who sent the messages to him to authenticate the same. The RTC
did not give credence to such version and neither will this Court. Besides, it was most unlikely for
Irish to pin the things on Rustan if he had merely tried to help her identify the sender.

Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an
electronic document. Thus, it should be authenticated by means of an electronic signature, as
provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for
the first time before this Court. The objection is too late since he should have objected to the
admission of the picture on such ground at the time it was offered in evidence. He should be deemed
to have already waived such ground for objection.14

Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic
Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.15

In conclusion, this Court finds that the prosecution has proved each and every element of the crime
charged beyond reasonable doubt.

WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in
CA-G.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR. ARTURO D. BRION

Associate Justice Associate Justice

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JOSE PORTUGAL PEREZ
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

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Case 8

Case 9

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.

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;

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 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:

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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.

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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.

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.
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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 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
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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
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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:

xxx xxx xxx

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
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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.

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.

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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, 38the 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
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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
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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. 66Once 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
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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
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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.

Bellosillo and Martinez, JJ., concur.

Narvasa, C.J., I join Justices Kapunan and Mendoza in their dissents.

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Regalado, J., In the result.

Davide, Jr., In the result and I join Mr. Justice Panganiban in his separate opinion.

Romero, J., Please see separate opinion.

Melo, J., I join the dissents of Justices Kapunan and Mendoza.

Vitug, J., See separate opinion.

Kapunan, J., See dissenting opinion.

Mendoza, J., Please see dissenting opinion.

Panganiban, J., Please see Separate Opinion.

Quisumbing, J., I join in dissenting opinion of JJ. Mendoza and Kapunan.

Purisima, J., I join in Justice Mendoza's dissenting.

Separate Opinions

ROMERO, J., separate opinion;

What marks offs man from a beast?

Aside from the distinguishing physical characteristics, man is a rational being, one who is endowed
with intellect which allows him to apply reasoned judgment to problems at hand; he has the innate
spiritual faculty which can tell, not only what is right but, as well, what is moral and ethical. Because
of his sensibilities, emotions and feelings, he likewise possesses a sense of shame. In varying
degrees as dictated by diverse cultures, he erects a wall between himself and the outside world
wherein he can retreat in solitude, protecting himself from prying eyes and ears and their extensions,
whether form individuals, or much later, from authoritarian intrusions.

Piercing through the mists of time, we find the original Man and Woman defying the injunction of God
by eating of the forbidden fruit in the Garden. And when their eyes were "opened" forthwith "they
sewed fig leaves together, and made themselves aprons." 1 Down the corridors of time, we find man
fashioning "fig leaves" of sorts or setting up figurative walls, the better to insulate themselves from the
rest of humanity.

Such vague stirrings of the desire "to be left alone," considered "anti-social" by some, led to the
development of the concept of "privacy," unheard of among beasts. Different branches of science,
have made their own studies of this craving of the human spirit psychological, anthropological
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sociological and philosophical, with the legal finally giving its imprimatur by elevating it to the status
ofa right, specifically a private right.

Initially recognized as an aspect of tort law, it created giant waves in legal circles with the publication
in the Harvard Law Review 2 of the trail-blazing article, "The Right to Privacy," by Samuel D. Warren
and Louis D. Brandeis.

Whether viewed as a personal or a property right, it 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
outraged 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 from that of the United States, contains in essence
facets of the right to privacy which constitute limitations on the far-reaching powers of 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 shoulder, that it must, without
delay, be "slain upon sight" before our society turns totalitarian with each of us, a mindless robot.

I, therefore, VOTE for the nullification of A.O. No. 308.

VITUG, J., separate opinion;

One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S. Puno,
echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of Administrative Order
No. 308 by the President of the Philippines and the dangers its implementation could bring. I find it
hard, nevertheless, to peremptorily assume at this time that the administrative order will be misused
and to thereby ignore the possible benefits that can be derived from, or the merits of, a nationwide
computerized identification reference system. The great strides and swift advances in technology
render it inescapable that one day we will, at all events, have to face up with the reality of seeing
extremely sophisticated methods of personal identification and any attempt to stop the inevitable may
either be short-lived or even futile. The imperatives, I believe, would instead be to now install specific
safeguards and control measures that may be calculated best to ward-off probable ill effects of any
such device. Here, it may be apropos to recall the pronouncement of this Court in People vs.
Nazario 1 that

As a rule, a statute or [an] act may be said to be vague when it lacks comprehensible
standards that men "of common intelligence must necessarily guess at its meaning and
differ as to its application." It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in

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carrying out its provisions and becomes an arbitrary flexing of the Government
muscle. 2

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 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;

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.

I reserve judgmeht on the issue of wherher a national ID system is an infringement of the

constitutional right to privacy or the freedom of thought until after Congress passes, if ever, a law to
this effect. Only then, and upon the filing of a proper petition, may the provisions of the statute be
scrutinized by the judiciary to determine their constitutional foundation. Until such time, the issue is
premature; and any decision thereon, speculative and academic. 1

Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on the
constitutional right to privacy and freedom of thought may stil become useful guides to our
lawmakers, when and if Congress should deliberate on a bill establishing a national identification
system.

Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled on
these points. The voting is decisive only on the need for the appropriate legislation, and it is only on
this ground that the petition is granted by this Court.

KAPUNAN, J., dissenting opinion;

The pioneering efforts of the executive to adopt a national computerized identification reference
system has met fierce opposition. It has spun dark predictions of sinister government ploys to tamper
with the citizen's right to privacy and ominous forecasts of a return to authoritarianism. Lost in the
uproar, however, is the simple fact that there is nothing in the whole breadth and lenght of
Administrative Order No. 308 that suggests a taint constitutional infirmity.

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A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:

ADMTNISTRATIVE ORDER NO. 308

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 services and social security
providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and 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;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic 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.
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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 Offices, 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 Administartive 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.

In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:

A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED IDENTIFICATION

REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUACE 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.

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 isssued
by key government agencies (like the SSS) 1 for the "efficient identification of persons." 2 Under the
new system, only one reliable and tamper-proof I.D. need be presented by the cardholder instead of
several identification papers such as passports and driver's license, 3 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

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2. Applications for driver's license, BIR TIN, passport, marriage license,
death certificate, NBI and police clearances, 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. 4

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. 5

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.

Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by the
SSS, a lead agency in the 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 LD. cannot and will not in any way be used to prevent one to travel.
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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.

The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the
President of legislative power properly belonging to Congress?

It is not.

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. 6 An administrative order, like the one under which the
new identification system is embodied, has its peculiar meaning under the 1987 Administrative Code:

Sec. 3. Administrative Orders. Acts of the President which relate to particular

aspects of governmental operations in pursuance of his duties as administrative head
shall be promulgated in administrative orders.

The National Computerized Identification Reference System was established pursuant to the
aforaquoted 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
Statistics 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.

Understandably, strict adherence to the doctrine of separation of power spawns differences of

opinion. For we cannot divide the branches of government into water-tight compartment. Even if such
is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work Administrative Law, A
Casebook, thus states:

To be sure, if we think of the separation of powers as carrying out the distinction

between legislation and administration with mathematical precision and as dividing the
branches of government into watertight compartments, we would probably have to
conclude that any exercise of lawmaking authority by an agency is automatically invalid.
Such a rigorous application of the constitutional doctrine is neither desirable nor
feasible; the only absolute separation that has ever been possible was that in the
theoretical writings of a Montesquieu, who looked across at foggy England from his
sunny Gascon vineyards and completely misconstrued what he saw. 7

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A mingling of powers among the three branches of government is not a novel concept. This blending
of powers has become necessary to properly address the complexities brought about by a rapidly
developing society and which the traditional branches of government have difficulty coping with. 8

It has been said that:

The true meaning of the general doctrine of the separation of powers seems to be that
the whole power of one department should not be exercised by the same hands which
possess the whole power of either of the other department, and that no one department
ought to possess directly or indirectly an overruling influence over the others. And it has
been that this doctrine should be applied only to the powers which because of their
nature are assigned by the constitution itself to one of the departments exclusively.
Hence, it does not necessarily follow that an entire and complete separation is either
desirable of was ever intended, for such a complete separation would be impracticable
if not impossible; there may be-and frequently are-areas in which executive, legislative,
and judicial powers blend or overlap; and many officers whose duties cannot be
exclusively placed under any one of these heads.

The courts have perceived the necessity of avoiding a narrow construction of a state
constitutional provision for the division of the powers of the government into three
distinct departments, for it is impractical to view the provision from the standpoint of a
doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical
abstractions and reverts instead to more pragmatic, flexible, functional approach, giving
recognition to the fact that then may be a certain degree of blending or admixture of the
three powers of the government. Moreover, the doctrine of separation of powers has
never been strictly or rigidly applied, and indeed could not be, to all the ramifications of
state or national governments; government would prove abortive if it were attempted to
follow the policy of separation to the letter. 9

In any case 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.

II

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 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. 10

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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." 11 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. . .
." 12 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 cretion. 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 and define give substance to the new
system. 13 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.

The majority opines that the petition is ripe for adjudication even without the promulgation of the
necessary guidelines in view of the fact that respondents have begun implementation of A.O. No.
308. The SSS, in particular, has started advertising in newspapers the invitation to bid for the
production of the I.D. cards. 14

I beg to disagree. It is not the new system itself that is intended to be implemented in the invitation to
bid but only the manufacture of the I.D. cards. Biometrics Technology is not and cannot be used in
the I.D. cards as no guidelines therefor have yet been laid down by the IACC. Before the assailed
system can be set up, it is imperative that the guidelines be issued first.

III

Without the essential guidelines, the principal contention for invalidating the new identification
reference system that it is an impermissible encroachment on the constitutionally recognized right
to privacy is plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient basis for a
conclusion that the new system to be evolved violates the right to privacy. Said order simply provides
the system's general framework. Without the concomitant guidelines, which would spell out in detail
how this new identification system would work, the perceived violation of the right to privacy amounts
to nothing more than mere surmise and speculation.

What has caused much of the hysteria over the National Computerized Identification Reference
System is the possible utilization of Biometrics Technology which refers to the use of autnomated
matching of physiological or behavioral characteristics to identify a person that would violated the
citizen's constitutionally protected right to privacy.

The majority opinion has enumerated various forms and methods of Biometrics Technology which if
adopted in the National Computaized Identification Reference System would seriously threaten the
right to privacy. Among which are biocrypt retinal scan, artificial nose and thermogram. The majority
also points to certain alleged deficiencies of A O. No. 308. Thus:

1) A.O. No. 308 does not specify the particular Biometrics Technology that shall be
used for the new identification system.

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2) The order dots not state whether encoding of data is limited to biological information
alone for identification purposes;

3) There is no provision as to who shall control and access the data, under what
circumstances and for what purpose; and

4) There are no controls to guard against leakage of information, thus heightening the
potential for misuse and abuse.

We should not be overwhelmed by the mere mention of the Biometrics Technology and its alleged,
yet unfounded "far-reaching effects."

There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the
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 efficientlyidentify persons seeking basic services or social
security and reduce, if not totally eradicate fraudulent transactions and misreprentation; 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 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-esconced in and directly
protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and
certain 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.

Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe. 15 In that case, a New
York statute was challenged for requiring physicians to identify patients obtaining prescription drugs
of the statute's "Schedule II" category (a class of drugs having a potential for abuse and a recognized
medical use) so the names and addresses of the prescription drug patients can be recorded in a
centralized computer file maintained by the New York State Department of Health. Some patients
regularly receiving prescription for "Schedule II" drugs and doctors who prescribed such drugs
brought an action questioning the validity of the statute on the ground that it violated the plaintiffs'
constitutionally protected rights of privacy.

In a unanimous decision, the US Supreme Court sustained the validity of the statute on the ground
that the patient identification requirement is a reasonable exercise of the State's broad police powers.
The Court also held that there is no support in the record for an assumption that the security
provisions of the statute will be adiministered improperly. Finally, the Court opined that the remote
possibility that judicial supervision of the evidentiary use of particular items of stored information will
not provide adequate protection against unwarranted diclosures is not a sufficient reason for
invalidating the patient-identification program.
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To be sure, there is always a possibility of an unwarranted disclosure of confidential matters
enomously accumulated in computerized data banks and in government records relating to taxes,
public health, social security benefits, military affairs, and similar matters. But as previously pointed
out, we have a sufficient number of laws prohibiting and punishing any such unwarranted disclosures.
Anent this matter, the observation in Whalen vs. Roe is instructive:

. . . 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. 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. . . . 16

The majority laments that as technology advances, the level of reasonably expected privacy
decreases. That may be true. However, court should tread daintily on the field of social and economic
experimentation lest they impede or obstruct the march of technology to improve public services just
on the basis of an unfounded fear that the experimentation violates one's constitutionally protected
rights. In the sobering words of Mr. Justice Brandeis:

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 arbitary, capricious or unreaonable. We have power to do
this, because the due process clause has been held by he 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. 17

Again, the concerns of the majority are premature precisely because there are as yet no guidelines
that will direct the Court and serve as solid basis for determining the constitutionality of the new
identification system. The Court cannot and should not anticipate the constitutional issues and rule on
the basis of guesswok. The guidelines would, among others, determine the particular biometrics
method that would be used and the specific personal data that would be collected provide the
safeguard, (if any) and supply the details on how this new system in supposed to work. The Court
should not jump the gun on the Executive.

III

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 form 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 agancies.
Morever, thses agencies particularly the GSIS and SSS have been issuing some form of identification
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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 manufacture
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 transfer of appropriations but a pooling of funds and resources by the
various government agencies involved in the project.

WHEREFORE, I vote to dismiss the petition.

MENDOZA, J., separate opinion;

My vote is to dismiss the petition in this case.

First. I cannot find anything in the text of Administrative Order No. 308 of the President of the
Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I can
see, all the Administrative Orders does is

establish an Identification Reference System involving the following service

agencies of the government:

Presidential Management Staff

National Economic Developemnt Authority

Department of the Interior and Local Government

Department of Health

Government Service Isurance System

Social Security Office

National Computer Center

create a committee, composed of the heads of the agencies concerned, to draft

rules for the System;

direct the use of the Population Reference Number (PRN) generated by the
National Census and Statistics Office as the common reference number to link
the participating agencies into an Identification Reference System, and the
adoption by the agencies of standards in the use of biometrics technology and
computer designs; and

provide for the funding of the System from the budgets of the agencies
concerned.

Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that each and every
Filipino and resident will have a file with the government containing, at the very least, his PRN and

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physiological biometrics such as, but not limited to, his facial features, hand geometry, retinal or iris
pattern, DNA pattern, fingerprints, voice characteristics, and signature analysis."

In support of his contention, petitioner quotes the following publication surfed from the Internet:

The use of biometrics is the means by which an individual may be conclusively

identified. There are two types of biometrics identifiers; Physical and behavioral
characteristics, Physiological biometrics include facial features, hand geometry, retinal
and iris patterns. DNA, and fingerprints characteristics include voice characteristics and
signature analysis. 1

I do 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.

For example, under C.A. No. 591, 2(a) the National Statistics Office collects "by enumeration,
sampling or other methods, statistics and other information concerning population . . . social and
economic institutions, and such other statistics as the President may direct." In addition, it is in
charge of the administration of the Civil Register, 2 which means that it keeps records of information
concerning the civil status of persons, i.e., (a) births, (b) deaths, (c) marriages and their annulments;
(d) legitimations, (e) adoptions, (f) acknowledgments of natural children, (g) naturalizations, and (h)
changes of name. 3

Other statutes giving government agencies the power to require personal information may be cited.
R.A. No. 4136, 23 gives the Land Transportation Office the power to require applicants for a driver's
license to give information regarding the following: their full names, date of birth, height, weight, sex,
color of eyes, blood type, address, and right thumbprint; 4 while R.A. No. 8239, 5 gives the
Department of Foreign Affairs the power to require passport applicants to give information concerning
their names, place of birth, date of birth, religious affiliation, marital status, and citizenship.

Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover their
nakedness with fig leaves, bemoans the fact that technology and institutional pressures have
threatened our sense of privacy. On the other hand, the majority would have none of the Identification
Reference System "to prevent the shrinking of the right to privacy, once regarded as "the most
comprehensive of rights and the right most valued by civilized men."" 5 Indeed, techniques such as
fingerprinting or electronic photography in banks have become commonplace. As has been
observed, the teaching hospital has come to be accepted as offering madical services that
compensate for the loss of the isolation of the sickbed; the increased capacity of applied sciences to
utilize more and more kinds of data and the cosequent calls for such data have weakened traditional
resistance to disclosure. As the area of relevance, political or scientific, expands, there is strong
psychological pressure to yield some ground of privacy. 6

But this is a fact of life to which we must adjust, as long as the intrusion into the domain of privacy is
reasonable. In Morfe v. Mutuc, 7 this Court dealt the coup de grace to claims of latitudinarian scope
for the right of privacy by quoting the pungent remark of an acute observer of the social scene,
Carmen Guerrero-Nakpil:

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Privacy? What's that? There is no precise word for it in Filipino, and as far as I know
any Filipino dialect and there is none because there is no need for it. The concept and
practice of privacy are missing from conventional Filipino life. The Filipino believes that
privacy is an unnecessary imposition, an eccentricity that is barely pardonable or, at
best, an esoteric Western afterthought smacking of legal trickery. 8

Justice Romero herself says in her separate opinion that the word privacy is not even in the
lexicon of Filipinos.

As to whether the right of privacy is "the most valued right," we do well to remember the encomiums
paid as well to other constitutional rights. For Professor Zechariah Chafee, "The writ of habeas
corpus is "the most important human rights provision in the fundamental law,"" 9 For Justice Cardozo,
on the other hand, freedom of expression "is the matrix, the indispensable condition of nearly every
other form of freedom." 10

The point is that care must be taken in assigning values to constitutional rights for the purpose of
calibrating them on the judicial scale, especially if this means employing stricter standards of review
for regulations alleged to infringe certain rights deemed to be "most valued by civilized men.''

Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual
privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards and
well-defined standards to prevent unconstitutional invasions." 11 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.

Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of privacy
formed by emanations from the several constitutional rights cited by the majority. 12 The question is
whether it violates freedom of thought and of conscience guaranteed in the following provisions of our
Bill of Rights (Art. III):

Sec. 4. No law Shall be passed abridging the freedom of speech, of expression, or of

the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the

free exercise thereof. The free exercise enjoyment of religious profession and worship,
without discrimination or preference, shall be forever be allowed. No religious test shall
be required for the exercise of civil or political rights.

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 next 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
servides 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:
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WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic services and social security
providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and 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:

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?

Indeed, 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. 13 It is not a statute. It confers no right;
it imposes no duty; it affords no protection; it creates no office. 14 It is, as its name indicates, a mere
administrative order, the prescise nature of which is given in the following excerpt from the decision in
the early case of Olsen & Co. v. Herstein: 15

[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 court. 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 prodecued
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. 16

Third. There is no basis for believing that, beyond the identification of individuals, the System will be
used for illegal purposes. Nor are sanctions lacking for the unauthorized use or disclosure of
information gathered by the various agencies constituting the System. For example, as the Solicitor
General points out. C.A. No. 591. 4 penalizes the unauthorized use or disclosure of data furnished
the NSO with a fine of not more than P600.00 or imprisonment for not more than six months or both.

At all events, at this stage, it is premature to pass on the claim that the Identification Reference
System can be used for the purpose of compiling massive dossiers on individuals that can be used to
curtail basic civil and political rights since, if at all, this can only be provided in the implementing rules
and regulations which have yet to be promulgated. We have already stated that A.O. No. 308 is not a
statute. Even in the case of statutes, however, where implementing rules are necessary to put them

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into effect, it has been held that an attack on their constitutionality would be premature. 17 As Edgar
in King Lear puts it, "Ripeness is all." 18For, to borrow some more Shakespearean lines,

The canker galls the infants of the spring

Too oft before their buttons be disclos'd. 19

That, more than any doctrine of constitutional law I can think of, succinctly expresses the rule
on ripeness, prematurity, and hypothetical, speculative, or conjectural claims.

Of special relevance to this case is Laird v. Tatum. 20 There, a class suit was brought seeking
declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of civilian
political activity having "a potential for civil disorder" exercised "a present inhibiting effect on
[respondents'] full expression and utilization of their First Amendment rights." In holding the case
nonjusticiable, the U.S. Supreme Court, in an opinion by Chief Justice Burger. said: 21

In recent years this Court has found in a number of cases that constitutional violations
may arise from the deterrent or ''chilling," effect of governmental regulations that fall
short of a direct prohibition against the exercise of First Amendment rights. [Citation of
cases omitted] In none of these cases, however, did the chilling effect arise merely from
the individual's knowledge that a governmental agency was engaged in certain activities
or from the individual's concomitant fear that, armed with the fruits of those activities,
the agency might in the future take some other and additional action detrimental to that
individual. Rather, in each of these cases, the challenged exercise of governmental
power was regulatory, proscriptive, or compulsory in nature, and the complainant was
either presently or prospectively subject to the regulations, proscriptions, or
compulsions that he was challenging. . . .

[T]hese decisions have in no way eroded the "established principle that to entitle a
private individual to invoke the judicial power to determine the validity of executive or
legislative action he must show that he was sustained or is immediately in danger of
sustaining a direct injury as the result of that action. . . .

The respondents do not meet this test; [the] alleged "chilling" effect may perhaps be
seen as arising from respondents' perception of the system as inappropriate to the
Army's role under our form of government, or as arising from respondents' beliefs that it
is inherently dangerous for the military to be concerned with activities in the civilian
sector, or as arising from respondents' less generalized yet speculative
apprehensiveness that the Army may at some future date misuse the information in
some way that would cause direct harm to respondents. Allegations of a subjective
"chill" are not an adequate substitute for a claim of specific present objective harm or a
threat of specific future harm: "the federal courts established pursuant to Article III of the
Constitution do not render advisory opinions." United Public Workers v. Mitchell, 330
US 75, 89, 91 L Ed 754, 766, 67 S Ct 556 (1947).

Fourth. Given the fact that no right of privacy is involved in this case and that any objection to the
identification Reference System on the ground that it violates freedom of thought is premature,
speculative, or conjectural pending the issuance of the implementing rules, it is clear that petitioner
Blas F. Ople has no cause of action and, therefore, no standing to bring this action. Indeed, although
he assails A.O. No. 308 on the ground that it violates the right of privacy, he claims no personal injury

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suffered as a result of the Order in question. Instead, he says he is bringing this action as taxpayer,
Senator, and member of the Government Service Insurance System.

Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does not
involve the exercise of the taxing or spending power of the government.

Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an intertest
sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing that the
funds necessary for implementing the System shall be taken from the budgets of the concerned
agencies. A.O. No. 308 violates Art. VI, 25(5) which. provides:

No law shall be passed authorizing any transfer of appropriations; however, the

President, the President of the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions
may, by law, be authorized to augment any item in the general appropriations law for
their respective offices from savings in other items of their respective appropriations.

But, as the Solicitor General states:

Petitioner's argument is anchored on two erroneous assumptions: one, that all the
concerned agencies, including the SSS and the GSIS, receive budgetary support from
the national government; and two, that the GAA is the only law whereby public funds
are appropriated. Both assumptions are wrong.

The SSS and GSIS do not presently receive budgetary support from the National
Government. They have achieved self-supporting status such that the contributions of
their members are sufficient to finance their expenses. One would be hard pressed to
find in the GAA an appropriation of funds to the SSS and the GSIS.

Furthermore, their respective charters authorize the SSS and the GSIS to disburse their
funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No. 1146 [1977],
as amended, Sec. 29) without the need for a separate appropriation from the Congress.

Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been
impaired by the Administrative Order in question. 22 As already stated, in issuing A.O. No. 308, the
President did not exercise the legislative power vested by the Constitution in Congress. He acted on
the basis of his own powers as administrative head of the government, as distinguished from his
capacity as the Executive. Dean Sinco elucidates the crucial distinction thus:

The Constitution of the Philippines makes the President not only the executive but also
the administrative head of the government. . . . Executive power refers to the legal and
political function of the President involving the exercise of discretion. Administrative
power, on the other hand, concerns itself with the work of applying policies and
enforcing orders as determined by proper governmental organs. These two functions
are often confused by the public: but they are distinct from each other. The President as
the executive authority has the duty of supervising the enforcement of laws for the
maintenance of general peace and public order. As administrative head, his duty is to
see that every government office is managed and maintained properly by the persons in
charge of it in accordance with pertinent laws and regulations.

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. . . The power of control vested in him by the Constitution makes for a strongly
centralized administrative system. It reinforces further his position as the executive of
the government, enabling him to comply more effectively with his constitutional duty to
enforce the laws. It enables him to fix a uniform standard of a administrative eficiency
and to check the official conduct of his agents. The decisions of all the officers within his
department are subject to his power of revision, either on his own motion or on the
appeal of some individual who might deem himself aggrieved by the action of an
administrative official. In case of serious dereliction of duty, he may suspend or remove
the officials concerned. 23

For the foregoing reasons, the petition should be DISMISSED.

# Separate Opinions

ROMERO, J., separate opinion;

What marks offs man from a beast?

Aside from the distinguishing physical characteristics, man is a rational being, one who is endowed
with intellect which allows him to apply reasoned judgment to problems at hand; he has the innate
spiritual faculty which can tell, not only what is right but, as well, what is moral and ethical. Because
of his sensibilities, emotions and feelings, he likewise possesses a sense of shame. In varying
degrees as dictated by diverse cultures, he erects a wall between himself and the outside world
wherein he can retreat in solitude, protecting himself from prying eyes and ears and their extensions,
whether form individuals, or much later, from authoritarian intrusions.

Piercing through the mists of time, we find the original Man and Woman defying the injunction of God
by eating of the forbidden fruit in the Garden. And when their eyes were "opened" forthwith "they
sewed fig leaves together, and made themselves aprons." 1 Down the corridors of time, we find man
fashioning "fig leaves" of sorts or setting up figurative walls, the better to insulate themselves from the
rest of humanity.

Such vague stirrings of the desire "to be left alone," considered "anti-social" by some, led to the
development of the concept of "privacy," unheard of among beasts. Different branches of science,
have made their own studies of this craving of the human spirit psychological, anthropological
sociological and philosophical, with the legal finally giving its imprimatur by elevating it to the status
ofa right, specifically a private right.

Initially recognized as an aspect of tort law, it created giant waves in legal circles with the publication
in the Harvard Law Review 2 of the trail-blazing article, "The Right to Privacy," by Samuel D. Warren
and Louis D. Brandeis.

Whether viewed as a personal or a property right, it 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.

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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
outraged 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 from that of the United States, contains in essence
facets of the right to privacy which constitute limitations on the far-reaching powers of 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 shoulder, that it must, without
delay, be "slain upon sight" before our society turns totalitarian with each of us, a mindless robot.

I, therefore, VOTE for the nullification of A.O. No. 308.

VITUG, J., separate opinion;

One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S. Puno,
echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of Administrative Order
No. 308 by the President of the Philippines and the dangers its implementation could bring. I find it
hard, nevertheless, to peremptorily assume at this time that the administrative order will be misused
and to thereby ignore the possible benefits that can be derived from, or the merits of, a nationwide
computerized identification reference system. The great strides and swift advances in technology
render it inescapable that one day we will, at all events, have to face up with the reality of seeing
extremely sophisticated methods of personal identification and any attempt to stop the inevitable may
either be short-lived or even futile. The imperatives, I believe, would instead be to now install specific
safeguards and control measures that may be calculated best to ward-off probable ill effects of any
such device. Here, it may be apropos to recall the pronouncement of this Court in People vs.
Nazario 1 that

As a rule, a statute or [an] act may be said to be vague when it lacks comprehensible
standards that men "of common intelligence must necessarily guess at its meaning and
differ as to its application." It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government
muscle. 2

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 of our
government, to which the task should initially belong and to which the authority to formulate and
promulgate that policy is constitutionally lodged.

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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;

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.

I reserve judgmeht on the issue of wherher a national ID system is an infringement of the

constitutional right to privacy or the freedom of thought until after Congress passes, if ever, a law to
this effect. Only then, and upon the filing of a proper petition, may the provisions of the statute be
scrutinized by the judiciary to determine their constitutional foundation. Until such time, the issue is
premature; and any decision thereon, speculative and academic. 1

Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on the
constitutional right to privacy and freedom of thought may stil become useful guides to our
lawmakers, when and if Congress should deliberate on a bill establishing a national identification
system.

Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled on
these points. The voting is decisive only on the need for the appropriate legislation, and it is only on
this ground that the petition is granted by this Court.

KAPUNAN, J., dissenting opinion;

The pioneering efforts of the executive to adopt a national computerized identification reference
system has met fierce opposition. It has spun dark predictions of sinister government ploys to tamper
with the citizen's right to privacy and ominous forecasts of a return to authoritarianism. Lost in the
uproar, however, is the simple fact that there is nothing in the whole breadth and lenght of
Administrative Order No. 308 that suggests a taint constitutional infirmity.

A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:

ADMTNISTRATIVE ORDER NO. 308

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 services and social security
providers and other government instrumentalities;

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WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and 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;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic 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 Offices, 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.
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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 Administartive 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.

In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:

A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED IDENTIFICATION

REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUACE 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.

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 isssued
by key government agencies (like the SSS) 1 for the "efficient identification of persons." 2 Under the
new system, only one reliable and tamper-proof I.D. need be presented by the cardholder instead of
several identification papers such as passports and driver's license, 3 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 clearances, 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. 4

The card may also be used for private transactions such as:

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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. 5

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.

Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by the
SSS, a lead agency in the 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 LD. 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.

The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the
President of legislative power properly belonging to Congress?

It is not.

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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. 6 An administrative order, like the one under which the
new identification system is embodied, has its peculiar meaning under the 1987 Administrative Code:

Sec. 3. Administrative Orders. Acts of the President which relate to particular

aspects of governmental operations in pursuance of his duties as administrative head
shall be promulgated in administrative orders.

The National Computerized Identification Reference System was established pursuant to the
aforaquoted 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
Statistics 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.

Understandably, strict adherence to the doctrine of separation of power spawns differences of

opinion. For we cannot divide the branches of government into water-tight compartment. Even if such
is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work Administrative Law, A
Casebook, thus states:

To be sure, if we think of the separation of powers as carrying out the distinction

between legislation and administration with mathematical precision and as dividing the
branches of government into watertight compartments, we would probably have to
conclude that any exercise of lawmaking authority by an agency is automatically invalid.
Such a rigorous application of the constitutional doctrine is neither desirable nor
feasible; the only absolute separation that has ever been possible was that in the
theoretical writings of a Montesquieu, who looked across at foggy England from his
sunny Gascon vineyards and completely misconstrued what he saw. 7

A mingling of powers among the three branches of government is not a novel concept. This blending
of powers has become necessary to properly address the complexities brought about by a rapidly
developing society and which the traditional branches of government have difficulty coping with. 8

It has been said that:

The true meaning of the general doctrine of the separation of powers seems to be that
the whole power of one department should not be exercised by the same hands which
possess the whole power of either of the other department, and that no one department
ought to possess directly or indirectly an overruling influence over the others. And it has
been that this doctrine should be applied only to the powers which because of their
nature are assigned by the constitution itself to one of the departments exclusively.
Hence, it does not necessarily follow that an entire and complete separation is either
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desirable of was ever intended, for such a complete separation would be impracticable
if not impossible; there may be-and frequently are-areas in which executive, legislative,
and judicial powers blend or overlap; and many officers whose duties cannot be
exclusively placed under any one of these heads.

The courts have perceived the necessity of avoiding a narrow construction of a state
constitutional provision for the division of the powers of the government into three
distinct departments, for it is impractical to view the provision from the standpoint of a
doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical
abstractions and reverts instead to more pragmatic, flexible, functional approach, giving
recognition to the fact that then may be a certain degree of blending or admixture of the
three powers of the government. Moreover, the doctrine of separation of powers has
never been strictly or rigidly applied, and indeed could not be, to all the ramifications of
state or national governments; government would prove abortive if it were attempted to
follow the policy of separation to the letter. 9

In any case 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.

II

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 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. 10

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." 11 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. . .
." 12 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 cretion. 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
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Technology and in computer application designs that will and define give substance to the new
system. 13 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.

The majority opines that the petition is ripe for adjudication even without the promulgation of the
necessary guidelines in view of the fact that respondents have begun implementation of A.O. No.
308. The SSS, in particular, has started advertising in newspapers the invitation to bid for the
production of the I.D. cards. 14

I beg to disagree. It is not the new system itself that is intended to be implemented in the invitation to
bid but only the manufacture of the I.D. cards. Biometrics Technology is not and cannot be used in
the I.D. cards as no guidelines therefor have yet been laid down by the IACC. Before the assailed
system can be set up, it is imperative that the guidelines be issued first.

III

Without the essential guidelines, the principal contention for invalidating the new identification
reference system that it is an impermissible encroachment on the constitutionally recognized right
to privacy is plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient basis for a
conclusion that the new system to be evolved violates the right to privacy. Said order simply provides
the system's general framework. Without the concomitant guidelines, which would spell out in detail
how this new identification system would work, the perceived violation of the right to privacy amounts
to nothing more than mere surmise and speculation.

What has caused much of the hysteria over the National Computerized Identification Reference
System is the possible utilization of Biometrics Technology which refers to the use of autnomated
matching of physiological or behavioral characteristics to identify a person that would violated the
citizen's constitutionally protected right to privacy.

The majority opinion has enumerated various forms and methods of Biometrics Technology which if
adopted in the National Computaized Identification Reference System would seriously threaten the
right to privacy. Among which are biocrypt retinal scan, artificial nose and thermogram. The majority
also points to certain alleged deficiencies of A O. No. 308. Thus:

1) A.O. No. 308 does not specify the particular Biometrics Technology that shall be
used for the new identification system.

2) The order dots not state whether encoding of data is limited to biological information
alone for identification purposes;

3) There is no provision as to who shall control and access the data, under what
circumstances and for what purpose; and

4) There are no controls to guard against leakage of information, thus heightening the
potential for misuse and abuse.

We should not be overwhelmed by the mere mention of the Biometrics Technology and its alleged,
yet unfounded "far-reaching effects."

There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the
Biometrics Technology that may pose danger to the right of privacy will be adopted.
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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 efficientlyidentify persons seeking basic services or social
security and reduce, if not totally eradicate fraudulent transactions and misreprentation; 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 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-esconced in and directly
protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and
certain 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.

Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe. 15 In that case, a New
York statute was challenged for requiring physicians to identify patients obtaining prescription drugs
of the statute's "Schedule II" category (a class of drugs having a potential for abuse and a recognized
medical use) so the names and addresses of the prescription drug patients can be recorded in a
centralized computer file maintained by the New York State Department of Health. Some patients
regularly receiving prescription for "Schedule II" drugs and doctors who prescribed such drugs
brought an action questioning the validity of the statute on the ground that it violated the plaintiffs'
constitutionally protected rights of privacy.

In a unanimous decision, the US Supreme Court sustained the validity of the statute on the ground
that the patient identification requirement is a reasonable exercise of the State's broad police powers.
The Court also held that there is no support in the record for an assumption that the security
provisions of the statute will be adiministered improperly. Finally, the Court opined that the remote
possibility that judicial supervision of the evidentiary use of particular items of stored information will
not provide adequate protection against unwarranted diclosures is not a sufficient reason for
invalidating the patient-identification program.

To be sure, there is always a possibility of an unwarranted disclosure of confidential matters

enomously accumulated in computerized data banks and in government records relating to taxes,
public health, social security benefits, military affairs, and similar matters. But as previously pointed
out, we have a sufficient number of laws prohibiting and punishing any such unwarranted disclosures.
Anent this matter, the observation in Whalen vs. Roe is instructive:

. . . 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. 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

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typically accompanied by a concomitant statutory or regulatory duty to avoid
unwarranted disclosures. . . . 16

The majority laments that as technology advances, the level of reasonably expected privacy
decreases. That may be true. However, court should tread daintily on the field of social and economic
experimentation lest they impede or obstruct the march of technology to improve public services just
on the basis of an unfounded fear that the experimentation violates one's constitutionally protected
rights. In the sobering words of Mr. Justice Brandeis:

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 arbitary, capricious or unreaonable. We have power to do
this, because the due process clause has been held by he 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. 17

Again, the concerns of the majority are premature precisely because there are as yet no guidelines
that will direct the Court and serve as solid basis for determining the constitutionality of the new
identification system. The Court cannot and should not anticipate the constitutional issues and rule on
the basis of guesswok. The guidelines would, among others, determine the particular biometrics
method that would be used and the specific personal data that would be collected provide the
safeguard, (if any) and supply the details on how this new system in supposed to work. The Court
should not jump the gun on the Executive.

III

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 form 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 agancies.
Morever, thses 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 manufacture
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 transfer of appropriations but a pooling of funds and resources by the
various government agencies involved in the project.

WHEREFORE, I vote to dismiss the petition.

MENDOZA, J., separate opinion;

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My vote is to dismiss the petition in this case.

First. I cannot find anything in the text of Administrative Order No. 308 of the President of the
Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I can
see, all the Administrative Orders does is

establish an Identification Reference System involving the following service

agencies of the government:

Presidential Management Staff

National Economic Developemnt Authority

Department of the Interior and Local Government

Department of Health

Government Service Isurance System

Social Security Office

National Computer Center

create a committee, composed of the heads of the agencies concerned, to draft

rules for the System;

direct the use of the Population Reference Number (PRN) generated by the
National Census and Statistics Office as the common reference number to link
the participating agencies into an Identification Reference System, and the
adoption by the agencies of standards in the use of biometrics technology and
computer designs; and

provide for the funding of the System from the budgets of the agencies
concerned.

Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that each and every
Filipino and resident will have a file with the government containing, at the very least, his PRN and
physiological biometrics such as, but not limited to, his facial features, hand geometry, retinal or iris
pattern, DNA pattern, fingerprints, voice characteristics, and signature analysis."

In support of his contention, petitioner quotes the following publication surfed from the Internet:

The use of biometrics is the means by which an individual may be conclusively

identified. There are two types of biometrics identifiers; Physical and behavioral
characteristics, Physiological biometrics include facial features, hand geometry, retinal
and iris patterns. DNA, and fingerprints characteristics include voice characteristics and
signature analysis. 1

I do 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
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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.

For example, under C.A. No. 591, 2(a) the National Statistics Office collects "by enumeration,
sampling or other methods, statistics and other information concerning population . . . social and
economic institutions, and such other statistics as the President may direct." In addition, it is in
charge of the administration of the Civil Register, 2 which means that it keeps records of information
concerning the civil status of persons, i.e., (a) births, (b) deaths, (c) marriages and their annulments;
(d) legitimations, (e) adoptions, (f) acknowledgments of natural children, (g) naturalizations, and (h)
changes of name. 3

Other statutes giving government agencies the power to require personal information may be cited.
R.A. No. 4136, 23 gives the Land Transportation Office the power to require applicants for a driver's
license to give information regarding the following: their full names, date of birth, height, weight, sex,
color of eyes, blood type, address, and right thumbprint; 4 while R.A. No. 8239, 5 gives the
Department of Foreign Affairs the power to require passport applicants to give information concerning
their names, place of birth, date of birth, religious affiliation, marital status, and citizenship.

Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover their
nakedness with fig leaves, bemoans the fact that technology and institutional pressures have
threatened our sense of privacy. On the other hand, the majority would have none of the Identification
Reference System "to prevent the shrinking of the right to privacy, once regarded as "the most
comprehensive of rights and the right most valued by civilized men."" 5 Indeed, techniques such as
fingerprinting or electronic photography in banks have become commonplace. As has been
observed, the teaching hospital has come to be accepted as offering madical services that
compensate for the loss of the isolation of the sickbed; the increased capacity of applied sciences to
utilize more and more kinds of data and the cosequent calls for such data have weakened traditional
resistance to disclosure. As the area of relevance, political or scientific, expands, there is strong
psychological pressure to yield some ground of privacy. 6

But this is a fact of life to which we must adjust, as long as the intrusion into the domain of privacy is
reasonable. In Morfe v. Mutuc, 7 this Court dealt the coup de grace to claims of latitudinarian scope
for the right of privacy by quoting the pungent remark of an acute observer of the social scene,
Carmen Guerrero-Nakpil:

Privacy? What's that? There is no precise word for it in Filipino, and as far as I know
any Filipino dialect and there is none because there is no need for it. The concept and
practice of privacy are missing from conventional Filipino life. The Filipino believes that
privacy is an unnecessary imposition, an eccentricity that is barely pardonable or, at
best, an esoteric Western afterthought smacking of legal trickery. 8

Justice Romero herself says in her separate opinion that the word privacy is not even in the
lexicon of Filipinos.

As to whether the right of privacy is "the most valued right," we do well to remember the encomiums
paid as well to other constitutional rights. For Professor Zechariah Chafee, "The writ of habeas
corpus is "the most important human rights provision in the fundamental law,""9 For Justice Cardozo,
on the other hand, freedom of expression "is the matrix, the indispensable condition of nearly every
other form of freedom." 10

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The point is that care must be taken in assigning values to constitutional rights for the purpose of
calibrating them on the judicial scale, especially if this means employing stricter standards of review
for regulations alleged to infringe certain rights deemed to be "most valued by civilized men.''

Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual
privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards and
well-defined standards to prevent unconstitutional invasions." 11 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.

Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of privacy
formed by emanations from the several constitutional rights cited by the majority. 12 The question is
whether it violates freedom of thought and of conscience guaranteed in the following provisions of our
Bill of Rights (Art. III):

Sec. 4. No law Shall be passed abridging the freedom of speech, of expression, or of

the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the

free exercise thereof. The free exercise enjoyment of religious profession and worship,
without discrimination or preference, shall be forever be allowed. No religious test shall
be required for the exercise of civil or political rights.

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 next 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
servides 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:

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic services and social security
providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and 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:

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?
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Indeed, 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. 13 It is not a statute. It confers no right;
it imposes no duty; it affords no protection; it creates no office. 14 It is, as its name indicates, a mere
administrative order, the prescise nature of which is given in the following excerpt from the decision in
the early case of Olsen & Co. v. Herstein: 15

[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 court. 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 prodecued
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. 16

Third. There is no basis for believing that, beyond the identification of individuals, the System will be
used for illegal purposes. Nor are sanctions lacking for the unauthorized use or disclosure of
information gathered by the various agencies constituting the System. For example, as the Solicitor
General points out. C.A. No. 591. 4 penalizes the unauthorized use or disclosure of data furnished
the NSO with a fine of not more than P600.00 or imprisonment for not more than six months or both.

At all events, at this stage, it is premature to pass on the claim that the Identification Reference
System can be used for the purpose of compiling massive dossiers on individuals that can be used to
curtail basic civil and political rights since, if at all, this can only be provided in the implementing rules
and regulations which have yet to be promulgated. We have already stated that A.O. No. 308 is not a
statute. Even in the case of statutes, however, where implementing rules are necessary to put them
into effect, it has been held that an attack on their constitutionality would be premature. 17 As Edgar
in King Lear puts it, "Ripeness is all." 18For, to borrow some more Shakespearean lines,

The canker galls the infants of the spring

Too oft before their buttons be disclos'd. 19

That, more than any doctrine of constitutional law I can think of, succinctly expresses the rule
on ripeness, prematurity, and hypothetical, speculative, or conjectural claims.

Of special relevance to this case is Laird v. Tatum. 20 There, a class suit was brought seeking
declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of civilian
political activity having "a potential for civil disorder" exercised "a present inhibiting effect on
[respondents'] full expression and utilization of their First Amendment rights." In holding the case
nonjusticiable, the U.S. Supreme Court, in an opinion by Chief Justice Burger. said: 21

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In recent years this Court has found in a number of cases that constitutional violations
may arise from the deterrent or ''chilling," effect of governmental regulations that fall
short of a direct prohibition against the exercise of First Amendment rights. [Citation of
cases omitted] In none of these cases, however, did the chilling effect arise merely from
the individual's knowledge that a governmental agency was engaged in certain activities
or from the individual's concomitant fear that, armed with the fruits of those activities,
the agency might in the future take some other and additional action detrimental to that
individual. Rather, in each of these cases, the challenged exercise of governmental
power was regulatory, proscriptive, or compulsory in nature, and the complainant was
either presently or prospectively subject to the regulations, proscriptions, or
compulsions that he was challenging. . . .

[T]hese decisions have in no way eroded the "established principle that to entitle a
private individual to invoke the judicial power to determine the validity of executive or
legislative action he must show that he was sustained or is immediately in danger of
sustaining a direct injury as the result of that action. . . .

The respondents do not meet this test; [the] alleged "chilling" effect may perhaps be
seen as arising from respondents' perception of the system as inappropriate to the
Army's role under our form of government, or as arising from respondents' beliefs that it
is inherently dangerous for the military to be concerned with activities in the civilian
sector, or as arising from respondents' less generalized yet speculative
apprehensiveness that the Army may at some future date misuse the information in
some way that would cause direct harm to respondents. Allegations of a subjective
"chill" are not an adequate substitute for a claim of specific present objective harm or a
threat of specific future harm: "the federal courts established pursuant to Article III of the
Constitution do not render advisory opinions." United Public Workers v. Mitchell, 330
US 75, 89, 91 L Ed 754, 766, 67 S Ct 556 (1947).

Fourth. Given the fact that no right of privacy is involved in this case and that any objection to the
identification Reference System on the ground that it violates freedom of thought is premature,
speculative, or conjectural pending the issuance of the implementing rules, it is clear that petitioner
Blas F. Ople has no cause of action and, therefore, no standing to bring this action. Indeed, although
he assails A.O. No. 308 on the ground that it violates the right of privacy, he claims no personal injury
suffered as a result of the Order in question. Instead, he says he is bringing this action as taxpayer,
Senator, and member of the Government Service Insurance System.

Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does not
involve the exercise of the taxing or spending power of the government.

Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an intertest
sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing that the
funds necessary for implementing the System shall be taken from the budgets of the concerned
agencies. A.O. No. 308 violates Art. VI, 25(5) which. provides:

No law shall be passed authorizing any transfer of appropriations; however, the

President, the President of the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions
may, by law, be authorized to augment any item in the general appropriations law for
their respective offices from savings in other items of their respective appropriations.

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But, as the Solicitor General states:

Petitioner's argument is anchored on two erroneous assumptions: one, that all the
concerned agencies, including the SSS and the GSIS, receive budgetary support from
the national government; and two, that the GAA is the only law whereby public funds
are appropriated. Both assumptions are wrong.

The SSS and GSIS do not presently receive budgetary support from the National
Government. They have achieved self-supporting status such that the contributions of
their members are sufficient to finance their expenses. One would be hard pressed to
find in the GAA an appropriation of funds to the SSS and the GSIS.

Furthermore, their respective charters authorize the SSS and the GSIS to disburse their
funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No. 1146 [1977],
as amended, Sec. 29) without the need for a separate appropriation from the Congress.

Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been
impaired by the Administrative Order in question. 22 As already stated, in issuing A.O. No. 308, the
President did not exercise the legislative power vested by the Constitution in Congress. He acted on
the basis of his own powers as administrative head of the government, as distinguished from his
capacity as the Executive. Dean Sinco elucidates the crucial distinction thus:

The Constitution of the Philippines makes the President not only the executive but also
the administrative head of the government. . . . Executive power refers to the legal and
political function of the President involving the exercise of discretion. Administrative
power, on the other hand, concerns itself with the work of applying policies and
enforcing orders as determined by proper governmental organs. These two functions
are often confused by the public: but they are distinct from each other. The President as
the executive authority has the duty of supervising the enforcement of laws for the
maintenance of general peace and public order. As administrative head, his duty is to
see that every government office is managed and maintained properly by the persons in
charge of it in accordance with pertinent laws and regulations.

. . . The power of control vested in him by the Constitution makes for a strongly
centralized administrative system. It reinforces further his position as the executive of
the government, enabling him to comply more effectively with his constitutional duty to
enforce the laws. It enables him to fix a uniform standard of a administrative eficiency
and to check the official conduct of his agents. The decisions of all the officers within his
department are subject to his power of revision, either on his own motion or on the
appeal of some individual who might deem himself aggrieved by the action of an
administrative official. In case of serious dereliction of duty, he may suspend or remove
the officials concerned. 23

For the foregoing reasons, the petition should be DISMISSED.

Footnotes

1 Dissenting Opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478
[1928].

2 Petition, p. 9, Rollo, p. 11.

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3 Comment, pp. 6, 9, 14, 15, Rollo, pp. 65, 68, 73-74.

4 Philconsa vs. Enriquez, 235 SCRA 506 [1994]; Guingona v. PCGG, 207 SCRA 659 [1992];
Tolentino v. Commission on Elections, 41 SCRA 702 [1971].

5 Sanidad v. Commission on Elections, 73 SCRA 333 [1976]; Pascual v. Secretary of Public

Works, 110 Phil. 331 [1960].

6 "Invitation to Bid," Annex "E" to the Petition, Rollo p. 50.

7 Annex "B" to Petitioner's Reply, Rollo, p. 144.

8 Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 [1927].

9 Sec. 1, Article VI, 1987 Constitution.

10 Fernando, The Philippine Constitution, pp. 175-176 [1974].

11 Id., at 177; citing the concurring opinion of Justice Laurel in Schneckenburger v. Moran, 63
Phil. 249, 266 [1936].

12 Vera v. Avelino, 77 Phil. 192, 212 [1936].

13 See concurring opinion of Justice Laurel in Schneckenburger v. Moran, supra, at 266-267.

14 Government of the Philippine Islands v. Springer, 50 Phil. 259, 305 [1927].

15 Sec. 1, Article VII, 1987 Constitution.

16 Cruz, Philippine Political Law, p. 173 [1996].

17 Tanada and Carreon, Political Law of the Philippines, vol. 1, p. 275 [1961].

18 Sec. 17, Article VII of the 1987 Constitution provides:

Sec. 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.

19 Pelaez v. Auditor General, 15 SCRA 569, 583 [1965].

20 Sinco, Philippine Political Law, pp. 234-235 [1962].

21 Id., at 234.

22 Id., at 235.

23 Sec. 3, Chapter 2, Title I, Book III, Administrative Code of 1987.

24 Cruz, Philippine Administrative Law, p. 18 [1991].

25 Third Whereas Clause, Administrative Code of 1987.

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26 Fourth Whereas Clause, Administrative Code of 1987.

27 See Cortes, Philippine Administrative Law, pp. 2-5 [1984].

28 Fisher, Constitutional Conflicts Between Congress and the President, 4th ed., pp. 106-107.

29 Cooley on Torts, Sec. 135, vol. 1, 4th ed., [1932]; see also Warren and Brandeis "The Right
to Privacy," 4 Harvard Law Review 193-220 [1890] this article greatly influenced the
enactment of privacy statutes in the United States (Cortes, I., The Constitutional Foundations
of Privacy, p. 15 [1970]).

30 381 U.S. 479, 14 L. ed. 2d 510 [1965].

31 AMENDMENT I [1791]

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.

AMENDMENT III [1791]

No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.

AMENDMENT IV [1791]

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, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.

AMENDMENT V [1791]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offense to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.

xxx xxx xxx

AMENDMENT IX [1791]

The enumeration in the Constitutiom, of certain rights, shall not be construed to deny or
disparage others retained by the people.

32 22 SCRA 424, 444-445.

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33 Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of
Privacy, p. 18 [1970].

34 Cortes, The Constitutional Foundations of Privacy, p. 18 [1970].

35 Art. 26 of the Civil Code provides:

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 damages, prevention and other relief:

(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place
of birth, physical defect, or other personal condition.

36 Art. 32, Civil Code.

37 Art. 723, Civil Code.

38 Art. 229, Revised Penal Code.

39 Art. 290-292, Revised Penal Code.

40 Art. 280, Revised Penal Code.

41 R.A. 4200.

42 R.A. 1405.

43 R.A. 8293.

Case 10

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