Encroachment

In promulgating an Executive Order about the implementation of a National ID System, it can be safely presumed that our Executive Department has seen to it that it will not suffer the same fate as Administrative Order 308 issued by the then President Fidel V. Ramos on the same subject. A.O. 308 entitled "Adoption of a National Computerized Identification Reference System" was declared null and void by the Supreme Court in the case Ople vs. Torres (293 SCRA 141). While the vote was close (8-6), the majority opinion penned by Justice Reynato Puno shot down the A.O. first because it involves a subject that is not appropriate to be covered by a mere administrative order, and secondly because of the threat to the right of privacy as it "pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate the delivery of basic services".

The new Executive or Administrative Order must have been so crafted as to avoid intrusion into the zone of privacy of an individual. There is one feature however which appears to be "disturbing" to say the least. This is the aspect on fingerprinting. It is not so much because such ritual as fingerprinting is usually associated with persons suspected of having committed crimes. It is more because of the observation of the SC in Ople that: "Today, biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses various technologies in encoding any and all biological characteristics of an individual for identification. It is noteworthy that A.O. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage." The implementors of this system are just human. There is no assurance that will not invade the zone of privacy of an individual. I hope the new E.O. has adequately addressed this danger. Otherwise, even if we have nothing to hide we still have something to fear.

There is no dispute that we need this ID system. But our Executive Department should have also seriously considered the other ground why A.O. 308 was declared null and void: that it is more of a legislative than an administrative function. As the SC said, "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 or repeal them". It embraces "all subjects and extends to matters of general concern or common interest". Executive power on the other hand is the power of "carrying the laws into practical operation and enforcing their due observance". It includes administrative power which is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs to enable the President to fix a uniform standard of administrative efficiency and check the official conduct of its agents.

A mere E.O. or A.O. should not cover a "delicate adjustment of various contending state policies – the primacy of national security, the extent of privacy interest against dossier gathering by the government, the choice of policies etc." An E.O. or A.O. "confers no right, imposes no duty, affords no protection and creates no office". If it does, then the E.O. or A.O. is an encroachment on the legislative power as it "unduly expands the limits of administrative legislation and consequently erodes the plenary power of Congress to make laws", said the majority of the SC justices.

So this is the bigger challenge facing the new Executive Order on the National ID System. Based on this SC ruling, it seems more appropriate and less controversial if the Executive Department gave Congress the task of coming out with a law on national ID. Of course, the SC may still change its mind especially in the light of the close voting. To be sure the minority opinion also has some strong points when it declared that the branches of government cannot be divided into "water tight compartments". According to the minority opinion, "a mingling of powers among the three branches of government is not a novel concept. This blending of powers has become necessary to address the complexities brought about by a rapidly developing society, and which the traditional branches of government have difficulty coping with".