… The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection.
-Justice Fernando, Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424]
Constitution of democratic governments is made for the people. It is not made in favor of the government but serves as repository of boundaries upon which their powers may not go beyond. It was framed in such a way that it will prohibit and avoid the government from prying on people’s private lives1. In the Philippines, it is crystal clear that the Constitution recognizes and protects the people’s right to privacy. It can be observed that the right to privacy has been given emphasis in Article 3 of the Constitution in various forms.2
Such a right is very much cherished in the civil society like the Philippines, thus, it is not contented with the insertion of pro- privacy provisions in the supreme law of the land. It ensures its protection by inculcating other laws like Civil Code3, Revised Penal Code4 and some special laws in the Philippines with provisions that will guarantee the ‘let alone’ right in the country5.
The right to privacy or the right to ‘be let alone’ is not only politically important but also socially relevant. It is through our freedom we obtain our identity and personhood needed for individual development. This personal space let us discover our capabilities without the fear of being watched or punished. If we are to exercise such a right after presenting some form of documentation, it demeans our political and most importantly, our personal identity6. This is what threatens our very person every time attempts toward surveillance scheme like National Identification Systems (NIDS) are pushed in a freedom loving nation like ours. As guaranteed by the Constitution, Individuals should be free unless there is probable cause against them in order for the state to deprive them of their person, liberty and property. Surveillance schemes like profiling, video-surveillance, facial recognition, national identification systems, and national ID cards defeats identity development and personhood. Thus, there must be a reasonable and grounded belief established prior utilizing these tools to a particular individual. While there are problems that needs solutions and programs that will benefit the people, remedies and projects must be molded in such a way that it will perfectly fit our democratic society7.
The Supreme Court in Ople vs. Torres, 293 SCRA 141 (1998) ruled that the administrative order issued by President Fidel V. Ramos, A.O. 308 which seeks to adopt a national computerized identification system, null and void due to several reason and one of which is its violation of the right to privacy clause of the Constitution. Now that we have RA 10173 or the Data Privacy Act of 2012, which claims to resolve the loopholes of A.O. 308 and guarantees protection of personal information, can we revive the talks of implementing national ID system in the Philippines?
First, what is Data Privacy Act of 2012? In its declaration of policy it aims “to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth”. It also ensures “that personal information and communications systems in government and in the private sector are secured and protected”. The following are some of the important features of the law: rules that information collectors, holders and processors need to comply with on handling information from data subjects, collection, storage and usage must be for legitimate purposes only, accuracy and significance of the data, necessity of consent of data subjects before processing unless otherwise provided by law, rights of data subjects and penal provisions for violation of the law8.
However, comprehension wise, the law is quite confusing and deceiving. According to Atty. Sta. Maria, this law tends to regulate what people can say, probe, record, share or express in case of criticism against the government or its official9. In addition to this, in an interview with the Philippine Center for Investigative Journalism, Atty. Jose Jesus Disini, a legal expert on information technology, claims that the Act is indeed difficult to understand and its scope is vaguely worded that it may to almost everything within the World Wide Web10. Therefore, limiting one’s freedom of speech and information or in general, freedom of privacy more than the constitutional limitations, thus, will not complement with a natio9nal identification system.
In a research conducted by the Senate, it defined national identification system as a process used by the government to help government departments in the identification and authentication of identities of citizens who desire to avail services from the government or to transact with the government. It aims speedy and efficient public service11.
Notwithstanding the goal of the government to speed up public service, many are skeptical about this matter. Human rights advocates and militant groups firmly argue that such a law will violate a citizen’s right to privacy and will produce more human rights violations12.
The mere idea that personal information is within the reach of the government is abhorring to the mind. NIDS degrades a person’s identity and personhood. It turns human life into an object represented by numbers, placed on cars and stored in computer database13. Also, since the system can be used by the state to monitor a particular person it intrudes our personal space- our privacy. It is as if someone is watching behind us at all times. The issue of voluntariness is immaterial since if they will require these ID cars when dealing with government agencies, people will be compelled to apply for these cards14. It is making a mockery out of the freedom bestowed upon us by our very people and our very law.
Militant groups are clamoring to junk the NIDS attempt because they fear that information which are readily available to the State may be used to harass people based on political affiliations and cultural origins15. The possibility of an increase in human rights violations due to NIDS is not a mere speculation in the Philippines, February 2008, the Commission on Human Rights (CHR-IX) vehemently oppose the then implementation of the national ID system in Sulu. According to Sulu officials, it is for the safety of their people, prevention of crimes and obstruction of determent of terrorism. However, according to the CHR-IX, it violated the right to privacy and freedom of movement of the people of Sulu. It averred that since the “war on terror” campaign of then Arroyo administration, many have been suffering from illegal arrest and detention. It doubted that the ID system will pacify terrorism in the country and believed that it will nevertheless, increase violations and terror in the province15. Also, based on experience, implementation of national ID system, do not solve terrorism. There was no correlation between the two. Practically speaking, application of the ID system is only confined within the national community it may not extend to foreigners which may commit acts of terrorism. In a microscopic view, even penal institutions which are under surveillance 24/7 are not violence free16.
At present, the Congress is baking a bill on National Identification System, it has been approved on the second reading by the Lower House. If completely approved, every citizen of the Philippines must avail a National Identification Card.17
The criticism of NIDS is not new, it was born long time ago and history will attest that it resulted to racial discrimination and human rights violation- ethnic cleansing or genocide. During the World War II, in Germany and some parts of Europe conquered by the Nazi, every citizen had national ID card, everyone is compelled to carry it wherever they go. These cards were used by the Nazis to harass residents especially Jews whose IDs were marked with “J”. This led to the bloody history that the world will never forget- genocide of millions of Jews18. Another unforgettable fruit of the implementation of IDs is the Rwanda genocide in 1995. Rwandans were required to wear IDs, because of this Hutu militia easily identified Tutsis who were hacked to death by the former19. In the United States of America, in the Civil War, slaves carry passes when travelling from the plantations.
These are just some of the instances which were brought by identification schemes. Easily, identified, easily discriminated in every form.
Now, in connection with the availability of knowledge of individuals to te State, it is comparable to the theory of Michel Faucoult’s metaphor of Panopticon in his book Discipline and Punish (1975). He associated knowledge with power. According to him knowledge can be used to control a person, thus, creating power20.
As mentioned earlier, Foucault illustrated power relations through the use of Jeremy Bentham’s Panopticon. To explain, a Panopticon is an architectural plan commonly designed for asylums, penitentiary, schools, hospitals and factories. Instead of using inhumane methods of discipline, the panopticon a covert powerful tool of coercion which is done through constant observation from a high tower. This perpetual observation yielded knowledge and it induced the subjects to internalize that they are constantly watched- making their behavior limited. This surveillance scheme is the source of power of those controlling the Panopticon21.
Applying this to the National ID system scheme, the government by implementing such will get hold of personal information of the public. The pieces of information may be used to track the inhabitants’ whereabouts and personal activities. The Government may harass or intrude an individual on its own discretion. Quoting Mason, “When only certain people or groups of people control knowledge, oppression is a possibility.”
The people comprises the society. A society can never be better than its people. They mirror the swhole society. Thus, whenever the state demeans its people through invasions of its constitutional rights especially privacy or at least allow such violation of a right by a citizen to another, no matter how holy the purpose could be, it hinders personal growth of a person which also limits national potential22
In conclusion, the Data Privacy Act of 2012 did not cure the errors that plague the then substance of A.O. 308 nor will it supplement a new NIDS law. Any attempt as of this moment to put into law a NIDS will remain UNCONSTITUTIONAL. It will violate the people’s right to privacy and will bastardize our very democracy. It will be as if we are in the constant watch of Big Brother, inside an Orwellian Philippines, pried, controlled, regulated in our every move.
The joy and fervor of human existence, our right to be in our own ivory towers, undisturbed and our journey in finding happiness and fullfillness of our lives should be preserved and sanctified. People should be able to enjoy liberty which is nowadays is threatened to be a privilege and no longer a right. Nothing can replace liberty and freedom.23 No amount of terror can buy liberty.
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin
1 Senate Economic Planning Office, December 2005, Citing Website. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 fromhttp://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf
2 Citing Websites. In The Lawphil Project. Retrieved May 3,2013 from http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html
3 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.
See Art. 32, Civil Code.
See Art. 723, Civil Code.
4 See Art. 229, Revised Penal Code.
See Art. 290-292, Revised Penal Code.
See Art. 280, Revised Penal Code.
5 Citing Websites. In The Lawphil Project. Retrieved May 3,2013 from http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html
6 Sobel, Richard. (2002). THE DEMEANING OF IDENTITY AND PERSONHOOD IN NATIONAL IDENTIFICATION SYSTEMS. Retrieved May 3, 2013 from http://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech319.pdf
8 Official Gazette of the Philippines. July 2011. Citing Website. RA 10173. Retrieved from http://www.gov.ph/2012/08/15/republic-act-no-10173/
9 Sta. Maria, Mel. (2013). A National ID system? Let’s hope not. Retrieved May 3,2013 from http://www.interaksyon.com/article/55302/mel-sta-maria–a-national-id-system-lets-hope-not
10 PCIJ. (2012). Cybercrime, Data Privacy Acts a double blow on netizens. Retrieved May 4, 2013 from http://pcij.org/blog/2012/09/28/cybercrime-data-privacy-acts-a-double-blow-for-netizens
11 Senate Economic Planning Office, December 2005, Citing Website. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 fromhttp://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf
13 Sobel, Richard. (2002). THE DEMEANING OF IDENTITY AND PERSONHOOD IN NATIONAL IDENTIFICATION SYSTEMS. Retrieved May 3, 2013 from http://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech319.pdf
14 Sta. Maria, Mel. (2013). A National ID system? Let’s hope not. Retrieved May 3,2013 from http://www.interaksyon.com/article/55302/mel-sta-maria–a-national-id-system-lets-hope-not
15 Senate Economic Planning Office, December 2005, Citing Website. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 fromhttp://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf
16 Commission on Human Rights – IX. February 2008. ID System in Sulu, an Experimental Implementation of National ID System? Retrieved May 4, 2013 from http://www.chr.gov.ph/MAIN%20PAGES/news/region%20news/reg09_legalopFeb808.htm
17 Senate Economic Planning Office, December 2005, Citing Website. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 fromhttp://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf
18 Senate Economic Planning Office, December 2005, Citing Website. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 fromhttp://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf
19 Sobel, Richard. (2002). THE DEMEANING OF IDENTITY AND PERSONHOOD IN NATIONAL IDENTIFICATION SYSTEMS. Retrieved May 3, 2013 from http://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech319.pdf
20 Mason, Moya. (2013). Foucault and His Panopticon. Retrieved May 4, 2013 from http://www.moyak.com/papers/michel-foucault-power.html
22 Sobel, Richard. (2002). THE DEMEANING OF IDENTITY AND PERSONHOOD IN NATIONAL IDENTIFICATION SYSTEMS. Retrieved May 3, 2013 from http://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech319.pdf