ARTICULATING THE COMPLETE PHILIPPINE RIGHT TO PRIVACY IN CONSTITUTIONAL AND CIVIL LAW: A TRIBUTE TO CHIEF JUSTICE FERNANDO AND JUSTICE CARPIO* Oscar Franklin B. Tan** “The stand for privacy, however, need not be taken as hostility against other individuals, against government, or against society. It is but an assertion by the individual of his inviolate personality.” —Dean and Justice Irene Cortes1 * This author acknowledges his professors: Justice Vicente V. Mendoza, Dean Bartolome Carale, Dean Merlin Magallona, Araceli Baviera, Domingo Disini, Carmelo Sison, Myrna Feliciano, Eduardo Labitag, Emmanuel Fernando, Antonio Bautista, Elizabeth Aquiling- Pangalangan, Danilo Concepcion, Rogelio Vinluan, Teresita Herbosa, Rafael Morales, Vicente Amador, Sylvette Tankiang, Susan Villanueva, Francis Sobrevinas, Anacleto “Butch” Diaz, Rudyard Avila, H. Harry Roque, Concepcion Jardeleza, Antonio Santos, Patricia Daway, Gwen Grecia-De Vera, JJ Disini, Barry Gutierrez, Florin Hilbay, Magnolia Mabel Movido, Solomon Lumba, and Ed Robles, as well as his Harvard Law School professors Laurence Tribe, Frank Michelman, and Justice Richard Goldstone of the South African Constitutional Court. This author most especially Deans Pacifico Agabin and Raul Pangalangan who first encouraged him to take up legal writing during his freshman year. This author also thanks the following who reviewed and assisted in finalizing this article: Gerard Joseph Jumamil, Bo Tiojanco, Leandro Aguirre, John Fajardo, Joseph Valmonte, Miguel Francisco Cruz, Mark Garrido, and Romualdo Menzon Jr. All errors remain the author’s alone. ** Chair, PHILIPPINE LAW JOURNAL (2005). Associate (International Capital Markets), Allen & Overy LLP London. LL.M., Harvard Law School (Commencement Speaker) (2007). LL.B., University of the Philippines (2005). B.S. Management Engineering / A.B. Economics Honors, Ateneo de Manila University (2001). First Violeta Calvo-Drilon-ACCRALAW Scholar for Legal Writing (2004). First Freshman and First Two-Time Awardee, Justice Irene R. Cortes Prize for Best Paper in Constitutional Law (2002, 2005). Professor Myres S. McDougal Prize for Best Paper in Public International Law and Jurisprudence (2005). First Awardee, Justice Vicente V. Mendoza Prize for Best Critical Analysis of a Supreme Court Decision (2005). First Awardee, Professor Gonzalo T. Santos, Jr. Prize for Best Paper in Securities Law (2005). First awardee, Professor Bienvenido C. Ambion Prize for Best Paper in Private International Law (2004). Professor Esteban B. Bautista Prize for Best Paper in Intellectual Property Law (2005). Awardee, Professor Araceli T. Baviera Prize for Best Paper in Civil Law (2003). 1 IRENE CORTES, THE CONSTITUTIONAL FOUNDATIONS OF PRIVACY 1 (UP Law Center, 1970). Adapted from the second of the Albino Z. SyCip Lecture Series delivered at the University of the Philippines College of Law, Feb. 21 and 28, 1970. 78 2008] COMPLETE PHILIPPINE RIGHT TO PRIVACY 79 “Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.” —Samuel Warren and Louis Brandeis2 “Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than… exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all other rights would lose half of their value.” —Justice Stephen Johnson Field3 “If you have nothing to hide, you have nothing to fear.” —DILG Secretary Angelo Reyes4 I. INTRODUCTION A. REFLECTIONS Justice Vicente V. Mendoza enjoys repeating that “law has two elements: logic and rhetoric. … [L]ogic forms the bedrock of our jurisprudence, but it is rhetoric that makes Constitutional Law so potent and so seductive. That is, he cautioned, one must read cases with great care, lest one be ensorcelled by the rhetoric and miss the actual logic.”5 No Philippine law student hurdles freshman year without reading landmark privacy decisions and some of the most passionate prose in our jurisprudence, a short but eloquent line of cases from Morfe v. Mutuc6 to Ople v. Torres7 that clothe this upstart right with its ancient peers’ majesty. However, despite tracing its pedigree through judicial deities from Justice and Dean Irene Cortes to Chief Justice Reynato Puno, the Philippine right to privacy taken as a whole is marred by 2 The Right to Privacy, 4 HARV. L. REV. 193 (1890). 3 In Re Pacific Ry. Comm’n, 32 F. 241, 250 (Cir.Ct. N.D.Cal. 1887), quoted in Robert Palsley, Privacy Rights v. Anti-Money Laundering Enforcement, 6 N.C. BANKING INST. 147, 149 (2002). Justice Field was appointed to the United States Supreme Court in 1863 by President Abraham Lincoln, where he served for thirty-four years and six months, the longest in that Court’s history. 4 Sec. of Dep’t of Interior and Local Gov’t Angelo Reyes, quoted in Gil Cabacungan, Jr. & Christine Avendano, Palace sees no stumbling block to nat’l ID system, PHIL. DAILY INQUIRER, Feb. 19, 2005, at A21. 5 Oscar Franklin Tan, Foreword, Sisyphus’ Lament, Part IV: Style and the Seduction of the Supreme Court, 79 PHIL. L.J. 876, 876 (2004). 6 G.R. No. 20387, 22 SCRA 424, Jan. 31, 1968. 7 G.R. No. 127685, 293 SCRA 141, Jul. 23, 1998. 80 PHILIPPINE LAW JOURNAL [VOL 82 inconsistencies, gaps and self-contradictions. The right to privacy’s significance has been underscored in countless seemingly unrelated issues in the past years, and most recently by the Human Security Act of 2007.8 Given the stakes, libertarians should fear not merely being ensorcelled by rhetoric, but being left to stave off the barbarians at the gates with but a confused constitutional right that currently has a loud bark but a feeble bite. This excerpt from the 2006 ruling In re Habeas Corpus of Camilo L. Sabio9 may be an example of self-contradiction in an immediate sense: This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest. In Morfe v. Mutuc, the Court, in line with Whalen v. Roe, employed the rational basis relationship test when it held that there was no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose…. (emphasis in the original and internal citations omitted)10 Note that “compelling state interest” and “rational basis” pertain to two different and mutually exclusive levels of scrutiny. Another 2006 ruling, Ejercito v. Sandiganbayan,11 featured a dissent that discussed Katz v. United States12 and the right to privacy arising from the right against unreasonable search. The same dissent went on to invoke the right to privacy arising from substantive due process, citing the Roe v. Wade13 line. The latter are rulings on what is called decisional privacy, which deals with personal autonomy and is irrelevant to the disclosure of financial information addressed by Ejercito. There are more fundamental inconsistencies. Returning to the very beginning, consider that Morfe cites Griswold v. Connecticut,14 a case that decided whether a married couple could be prohibited from using contraceptives. Morfe, however, decided whether a public officer may be required to disclose his assets and liabilities under oath. Griswold did not deal with information’s disclosure, and it is a mere shift in rhetoric but not logic to highlight the choice quote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”15 Turning this inconsistency on its head, however, the right to privacy appeared in the 2003 decision Estrada v. Escritor,16 which dealt with choosing to cohabit with someone other than one’s spouse under a religious sect’s 8 Rep. Act No. 9372 (2007). 9 G.R. No. 174340, 504 SCRA 704, Oct. 17, 2006. 10 Id. at 738. 11 G.R. No. 157294, 509 SCRA 191, Nov. 30, 2006. 12 389 U.S. 347 (1967). 13 410 U.S. 113 (1973). 14 381 U.S. 479 (1965). 15 Id. at 485. 16 A.M. No. P-02-1651, 408 SCRA 1, Aug. 4, 2003. 2008] COMPLETE PHILIPPINE RIGHT TO PRIVACY 81 sanction, and the 2000 decision Ilusorio v. Bildner,17 which dealt with an old man’s right to choose not to be visited by certain relatives. Neither case involved disclosure of information. Other inconsistencies are observed in the foundational texts. In the Bill of Rights, the word “privacy” appears only in the narrow right to privacy of communication and Justice Cortes’s own landmark essay The Constitutional Foundations of Privacy18 used this provision as a starting point. However, it is clearly not the textual anchor to Philippine privacy jurisprudence that has developed furthest under the right against unreasonable search. The right to privacy is the only Constitutional right with a birthday, the 1890 publication of Samuel Warren and Louis Brandeis’s The Right to Privacy in the Harvard Law Review.19 This initial article, however, dealt with torts, and was in fact inspired not by an Orwellian state but by irritation with paparazzi at the debut of Samuel Warren’s daughter and their increasingly portable cameras. If one searches for a parallel, the Philippine foundational text would be Justice Antonio Carpio’s 1972 student article as Philippine Law Journal chair, International Torts in Philippine Law.20 Indeed, then Dean Cortes, writing only two years before the young Carpio, specifically highlighted the word “Constitutional” in her treatise’s title, in contrast to Dean William Prosser, whose landmark 1960 privacy torts article was simply entitled Privacy.21 Dean Cortes discussed torts far less than she did sociology, anthropology, psychology, and a datu bathing in a river.22 A unified privacy framework is imperative. At present, our jurisprudence is grounded in Morfe, Ople and the right against unreasonable search. Combined with the Philippine hypertextualist mindset,23 the constitutional framework stands to be reduced to a chore of itemizing zones of privacy and textual hooks to whatever constitutional or statutory provision presents a plausible fit.