Australian Journal of Asian Law, 2018, Vol 19 No 1, Article 4: 1-18
The Right to Privacy in Philippine Jurisprudence
Emmanuel Q Fernando
This article explores the right to privacy in Philippines jurisprudence, surveying relevant laws and judicial decisions. It pays
particular attention to three decisions of the Philippine Supreme Court. The first is the case of White Light v City of Manila,
where the Court erroneously considered the right to the pursuit of happiness as a right to privacy. The next is People v Cogaed,
a search and seizure case, where the Court mischaracterised the nature of the privacy violated as a right to autonomy. Finally,
there is Morfe v Mutuc, in which no mistake was committed by the Court but a superficial reading of the case might lead one to
conclude that one had been committed with respect to the standard of review applicable to cases involving the right to privacy.
The right to privacy has long been recognised in Philippine law. It is found in several provisions of
the Bill of Rights of the Philippine Constitution. It exists also in some statutes and in judicial
precedent. The case in which it was first explicitly recognised was Morfe v Mutuc,1 which dealt with
the disclosure of statements of assets and liabilities of government officials. This article will discuss
the current state of the right to privacy in Philippine jurisprudence.
In general, Philippine jurisprudence protects the right to privacy. Oscar Franklin Tan has stated,
however, that ‘the Philippine right to privacy taken as a whole is marred by inconsistencies, gaps
and self-contradictions’ (Tan, 2008: 79-80). In this paper I hope to show that the right to privacy in
the Philippines is not nearly as incoherent and inconsistent as Tan argues.
In the first part of this article, the meaning of privacy will be investigated and its two aspects,
informational and decisional, will be introduced and explained. This will be followed by an
exploration of the ways in which the right may be violated, that is, improper intrusion and
unwarranted disclosure. This part will end with a brief discussion of how the right to privacy was
first recognised jurisprudentially.
In the second part of this article, the jurisprudential basis for distinguishing the two types or
aspects of privacy will be shown. The third part then introduces the concept of strict scrutiny, which
is the standard of review applicable to determine the constitutionality of a law that that possibly
violates the right to privacy.
The fourth part deals with informational privacy and cases, giving examples of improper
intrusion and unwarranted disclosure. Finally, the article will end with a discussion of decisional
privacy.
Privacy: Its Meaning and Aspects
The right to privacy gained recognition and prominent attention in 1890 when law partners Samuel
D Warren and (later) Justice Louis D Brandeis wrote their seminal article, ‘The Right to Privacy’,
which they described it as the ‘right to be let alone’, ‘a part of the more general right to the immunity
of a person -- the right to one's personality’ (Warren and Brandeis, 1890: 207). Following this
definition, I also define privacy as the right to be let alone. This has found jurisprudential recognition.
Justice Douglas held: ‘Liberty in the constitutional sense must mean more than freedom from
unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom.
The right to be let alone is indeed the beginning of all freedom’. 2 Justice Brandeis stated that this

1
2
Emmanuel Fernando (D Phil., Oxon.) is a full professor of the Department of Philosophy, College of Social Sciences and
Philosophy, University of the Philippines, as well as Professorial Lecturer, UP College of Law and San Beda Graduate
School of Law. He is also a Professorial Lecturer of the Philippine Judicial Academy, the institution tasked by the
Supreme Court with the continuing education of judges.
GR No L-20387, 31 January 1968; 22 SCRA 424.
Public Utilities Commission v Pollak, 343 US 451, 467 (1952).
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right to be let alone is ‘the most comprehensive of rights and the right most valued by civilized men
[sic]’.3
The two most important aspects of the right to privacy are its informational and decisional
aspects. This is found in Solove's characterisation, which quotes from DeCew (1997: 75).
According to DeCew, there are three overlapping ‘clusters of privacy claims’: informational privacy,
accessibility privacy, and expressive privacy. Informational privacy involves ‘control over information about
oneself’. Accessibility privacy is the limited-access conception: ‘accessibility privacy focuses not merely on
information or knowledge but more centrally on observations and physical proximity. Expressive privacy
‘protects a realm for expressing one's self-identity or personhood through speech or activity. Thus, DeCew
combines three theories of privacy: (1) control over information; (2) limited access; and (3) personhood.
(Solove, 2002: 1125)
The first of these clusters corresponds to the informational aspect of privacy and the third, expressive
privacy, to the decisional aspect. I categorise the second cluster (accessibility privacy) as simply the
‘manner in which privacy may be accessed and thus violated’ and so I do not treat it as constituting
a distinct theory or aspect of privacy.
Informational aspect
The informational aspect of the right to privacy has been variously defined. Alan Westin (2003: 3)
defined it ‘as the claim of an individual to determine what information about himself or herself should
be known to others’. Ruebhausen and Brin opined that ‘(t)he right to privacy gives a person the right
to determine what, how much, to whom and when information about himself shall be disclosed’ (in
Cortez: 1970: 7). Fried (1968: 483) characterised it as ‘control over knowledge about oneself’. Thomson
(1975: 304) insisted that ‘it is the right not to be looked at and the right not to be listened to’. Posner
(1977: 393) ‘simply not(ed) that one aspect of privacy is the withholding or concealment of
information’. Emerson stated:
The right of privacy is clearly a vital element in any system of individual rights. Essentially it is designed
to support the individual, to protect the core of individuality, in the relations of the individual to the
collective society. As such it is designed to mark out a sphere or zone in which the collective may not intrude
upon the individual will. (Emerson, 1979: 337).
Gavison (1989: 423) commented that the interest in privacy is related to our concern over our
accessibility by others which includes the extent to which we are known to them, the extent to which
they have physical access to us, and the extent to which we are the subject of their attention. She
added, ‘In its most suggestive sense, privacy is a limitation of others' access to an individual. [...] [It]
is a complex of these three independent and irreducible elements: secrecy, anonymity, and solitude’
(Gavison, 1989: 423). Allen (1998: 15) characterised ‘personal privacy’ as ‘a condition of inaccessibility
of the person, his or her mental states, or information about the person to the senses or surveillance
devices of others’. Moore reiterated the control aspect of privacy that Fried stressed: ‘A right to
privacy is a right to control access to and uses of—places, bodies, and personal information’ (Moore,
2008: 421).
In summary, the informational aspect of privacy is concerned with what and how much an agent
is willing to disclose, or let others know, about his or her personal life.
Decisional aspect
The decisional aspect of privacy stems from respect for a person as an autonomous being with the
right to decide for him or herself how to live life and conduct activities. This respect acknowledges
that another may be engaged in a kind of creative enterprise that can be disrupted, distorted, or
frustrated by intrusion. (Benn, 1971: 26). The value of privacy lies in our respect for persons as
autonomous beings with capacity to love, care and the like (Inness, 1993: 95; Solove, 2002: 1145).
Hence, decisional privacy is the right to express one's personality and to decide how to live one's
3
Olmstead v United States, 277 US 438, 478 (1928).
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personal life without undue interference from others. It contemplates decisions that are of an
intimate or significant nature, expressive of one's lifestyle. The Philippine case of Imbong v Ochoa4
involving reproductive rights, discussed below, is an excellent example of decisional privacy.
Violating the Right
There are two ways in which the right to privacy may be violated, by improper intrusions or by
unwarranted exposure or disclosure. Heyman claims:
Invasion of privacy takes two main forms: improper intrusion into an individual's private life (e.g., through
obscene or harassing telephone calls), and unwarranted exposure of that private life to the world (through
publication of highly personal information). Of course, both forms of invasion of privacy can be committed
through speech. (Heyman, 2002: 784; emphasis in original)
Improper intrusion
Improper intrusion, as previously mentioned, occurs when there is an unwanted access by others to
a person’s life. An individual has the right to: control what information about him or herself will be
made known to others; and to live his or her life without unwanted intrusion by others (Benn, 1971:
2). An example of the right to intrusion privacy is art 26 of the New Civil Code.5 It provides:
Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbours
and other persons. The following and similar acts, though they may not constitute a criminal offense, shall
produce a cause of action for 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.
Other examples of offensive intrusions include nude beaches, which spoil the view of a
condominium overlooking the ocean, or the unsolicited mailing of sexual material to a person's
residence. Many United States cases concern this.6 Further examples of intrusion are unreasonable
searches and seizures, also discussed below.
Unwarranted disclosure
Unwarranted exposure or disclosure occurs when aspects of a person's life is revealed to the public.
This may result not only in discomfort or embarrassment experienced by the intrudee due to this
exposure but also in decisions that would not normally made were it not for the unwarranted
disclosure.
Privacy thus prevents interference, pressures to conform, ridicule, punishment, unfavorable decisions, and
other forms of hostile reaction. To the extent that privacy does this, it functions to promote liberty of action,
removing the unpleasant consequences of certain actions and thus increasing the liberty to perform them.
(Gavison, 1989: 448)
As an example of this, s 2 of Philippines Republic Act No 1405 (otherwise known as the Bank
Secrecy Act) considers bank deposits to be of absolutely confidential nature. They may not be
examined, inquired about or investigated. This is intended to protect the deposit owners’ secrecy or
privacy and prevent unwarranted disclosure of their bank assets. Of course, there are exceptions, as
revealed below. The right against self-incrimination is another example. It also protects against
violations of intrusion and disclosure. It prevents questions being asked about a person's life that she
4
5
6
GR No 204819, 08 April 2014; 721 SCRA 146.
An Act to Ordain and Institute the Civil Code of the Philippines or Republic Act No. 386; approved on 18 June 1949.
See, for example: Rosen v United States, 161 US 29 (1896); Roth v United States, 354 US 476 (1957); and Ginzburg v
United States, 383 US 463 (1966), among others.
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or he may not want to reveal lest it provide evidence of a crime she or he may have committed. A selfincrimination case will also be discussed below.
Privacy as a constitutional right came to the forefront in United States jurisprudence with the
case of Griswold v Connecticut (381 US 479 (1965)), in which the United States Supreme Court
affirmed the right of married couples to use contraceptives. This case concerned decisional privacy.
A married couple may not be prevented or disallowed from using contraception. It is completely up
to them to decide whether to use contraception or not. This decision thus protected their decision
privacy.
In the Philippines, the seminal case was Morfe v Mutuc,7 in which public officials challenged a
statute that required them to file their statements of assets and liabilities, claiming a violation of
their right to privacy. This concerned informational privacy.
The jurisprudential basis for seeing the right to privacy as divided into two aspects is found in
Whalen v Roe:8
The cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds
of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the
interest in independence in making certain kinds of important decisions.9
The former corresponds to the informational aspect and the latter to the decisional.
The Standard of Strict Scrutiny
Just as in United States law, privacy is a value highly treasured in Philippine law, such that it is
also considered to be a ‘preferred freedom’. That being the case, a standard of strict scrutiny, and not
rationality, is to be applied to determine whether the right to privacy has been violated or not. The
rationality standard only requires that the means used to achieve the purpose of the legislation be a
reasonable method to achieve it. It need not guarantee the realisation of the purpose; it only requires
that it is reasonable to expect that the purpose will be achieved. In strict scrutiny, a higher standard
is required: the purpose must be compelling and the means used be the least restrictive. In other
words, there may be no other means available that could achieve the result with a lesser burden
imposed on the individual.
The doctrine of preferred freedoms originated in footnote 4 to the 1938 Carolene Products case,10
which explicitly proposed and articulated a two-tiered or double standard approach to resolving
rights cases. This ‘bifurcated review’ (White, 1996: 327) comprised of the deferential standard of
rational basis review for economic legislation and the interventionist stance of heightened scrutiny
for legislation curtailing fundamental rights.11 Under the former, the validity of legislation was
almost invariably upheld. After all, as just explained, rationality review is a deferential standard.
On the other hand, the opposite was the case for the strict scrutiny. Indeed, strict scrutiny has been
characterised as ‘strict in theory and fatal in fact’ (Gunther, 1972: 8).
Preferred freedoms encompassed intellectual liberty as found in the First Amendment to the
United States Constitution, which included religious freedom. As noted in the United States case of
Braunfield v Brown, ‘For religious freedom—the freedom to believe and to practice strange and, it
may be, foreign, creeds—has classically been one of the highest values of our society’.12 Further,
Justice O’Connor has pointed out that ‘religious liberty is an independent liberty, that it occupies a
preferred position ...’13 That priority, the court held in Thomas v Collins ‘gives these liberties a
7
8
9
10
11
12
13
Morfe, at 424.
429 US 589 (1977).
Whalen v Roe, at 599-600.
United States v Carolene Products Co, 304 US 144 (1938). Footnote 4 to the judgment states:
‘There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face
to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed
equally specific when held to be embraced within the Fourteenth. See Stromberg v California, 283 US 359, 369-70; Lovell
v Griffin, 303 US 444, 452.’
There is another kind of legislation subject to heightened scrutiny, which involves suspect classifications under the equal
protection clause. Here, I deal only with legislation affecting fundamental liberties.
Braunfield v Brown, 366 US 599, 612 (1961).
Employment Division v Smith, 494 US 872, 895 (1990).
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sanctity and a sanction not permitting dubious intrusions’.14 The same status has been accorded to
the right to privacy. This was made clear in the case of Ople v Torres, which determined the
constitutionality of a computerised, national computerised identification reference system, when the
court held that:
. . . [the right to privacy] merely requires that the law be narrowly focused and a compelling interest justify
such intrusions. 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.15
In the next section, I consider how these principles have been applied by courts in the Philippines.
Informational Privacy
Improper Intrusion
The First Privacy Case: Morfe v Mutuc
In this case, the Philippines Anti-Graft and Corrupt Practices Act16 was alleged to have violated the
constitutional right to privacy. Section 7 of the Act required every public officer to file a true, detailed,
and sworn statement of assets and liabilities every year. This was intended to deter public officials
and employees from committing acts of dishonesty and improve the tone of morality in public service.
The Supreme Court held that the provisions were valid and did not violate the public officials' rights
to privacy. Privacy as a constitutional right was explicitly recognised in this case.
[…] in view of the fact that there is an express recognition of privacy, specifically that of communication
and correspondence which ‘shall be inviolable except upon lawful order of Court or when public safety and
order’ may otherwise require, and implicitly in the search and seizure clause, and the liberty of abode, the
alleged repugnancy of such statutory requirement of further periodical submission of a sworn statement of
assets and liabilities deserves to be further looked into.17
The Court established that the right to privacy was not violated in the following manner.
. . . it cannot be said that the challenged statutory provision calls for disclosure of information which
infringes on the right of a person to privacy. It cannot be denied that the rational relationship such a
requirement possesses with the objective of a valid statute goes very far in precluding assent to an objection
of such character. This is not to say that a public officer, by virtue of a position he holds, is bereft of
constitutional protection; it is only to emphasize that in subjecting him to such a further compulsory
revelation of his assets and liabilities, including the statement of the amounts and sources of income, the
amounts of personal and family expenses, and the amount of income taxes paid for the next preceding
calendar year, there is no unconstitutional intrusion into what otherwise would be a private sphere.18
The rationality test was used to determine whether the Act violated the right to privacy. This appears
to be a mistake. Privacy being a fundamental or preferred freedom, the correct standard to apply is,
as explained, strict scrutiny and not rationality.
Clearly, the Act satisfies the rationality test but, if strict scrutiny is the standard to be applied,
was the ponente (the judge who wrote the judgment) mistaken? He was not, because the public official
enjoys no privacy with respect to the amounts and sources of her income. Thus, a private matter
became a public matter by virtue of her or him becoming a public official and the rationality test
became applicable. The argument, in brief, is this. A public official's assets and liabilities leave the
realm of privacy and become a matter of legitimate public concern the moment he or she becomes a
public servant. The public has a right to know the amounts and sources of his or her income in order
14
15
16
17
18
Thomas v Collins, 323 US 516, 530 (1945).
GR No 127685, 23 July 1998; 293 SCRA 141, 169.
Republic Act No 3019 (1960).
Morfe, at 443.
Morfe, at 447-48.
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to be ensured of his or her honesty, integrity, and lack of corruption. This distinguishes her or him
from a private citizen.
This has support in judicial scholarship. Irene Cortez, then Dean of the University of the
Philippines College of Law and later a Justice of the Philippine Supreme Court, opined that the court
showed that there was nothing unreasonable in the requirement that an inquiry made of a person
holding public office as to her assets and liabilities, including a statement of the amounts and sources
of income, be made a matter of public concern. It is part of a wider policy to stamp out dishonest
practices by public officials. Since a public official, unlike the ordinary citizen, is a public figure,
information of this sort would not constitute a violation of her privacy. But a similar statute applied
to private individuals would infringe on their privacy (Cortez, 1970, 27-28).
The Bank Secrecy Law
Section 2 of the Bank Secrecy Law provides:
All deposits of whatever nature with banks or banking institutions in the Philippines including investments
in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities,
are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked
into by any person, government official, bureau or office, except upon written permission of the depositor,
or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of
public officials, or in cases where the money deposited or invested is the subject matter of the litigation.
This Law allows four exceptions to the confidentiality of bank deposits. Presidential Decree No 1792
(1981) later amended the Law by providing for two additional exceptions. In Marquez v Desierto,19
the Supreme Court recognised and enumerated these six exceptions, as follows:
(i) in an examination made in the course of a special or general examination of a bank that is specifically
authorised by the Monetary Board after being satisfied that there is reasonable ground to believe that
a bank fraud or serious irregularity has been or is being committed and it is necessary to look into the
deposit to establish such fraud or irregularity;
(ii) in an examination made by an independent auditor hired by the bank to conduct its regular audit,
provided that the examination is for audit purposes only and the results thereof should be for the
exclusive use of the bank;
(iii) upon written permission of the depositor;
(iv) in cases of impeachment;
(v) upon order of the court in cases of bribery or dereliction of duty by public officials; or
(vi) in cases where the amount deposited or invested is the subject matter of the litigation (Singson, 2001,
671-72).
Ejercito v Sandiganbayan20
In this case, two exceptions to the Bank Secrecy Law were applied. Former President Joseph Estrada,
who was being tried for plunder, challenged the validity of two Resolutions denying his Motions to
Quash Subpoenas Duces Tecum/Ad Testificandum, a writ issued by the Sandiganbayan Court (a
court that criminally tries public officials) summoning a witness to testify orally and bring books,
papers or evidence to the court. The Resolutions directed the President of Export and Industry Bank
or his or her authorised representative to produce documents pertaining to a trust account and a
savings account of the former President.
After ruling that a trust account is a deposit for the purposes of the Act, the Supreme Court
nonetheless ruled that the exceptions under the Bank Secrecy Law applied.
These accounts are no longer protected by the Secrecy of Bank Deposits Law, there being two exceptions to
the said law applicable in this case, namely: (1) the examination of bank accounts is upon order of a
competent court in cases of bribery or dereliction of duty of public officials, and (2) the money deposited or
19
20
GR No 135882. 27 June 2001; 359 SCRA 772,
GR No 157294, 30 November 2006; 509 SCRA 190.
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invested is the subject matter of the litigation. Exception (1) applies since the plunder case pending against
former President Estrada is analogous to bribery or dereliction of duty, while exception (2) applies because
the money deposited in petitioner’s bank accounts is said to form part of the subject matter of the same
plunder case. (Ejercito, 225)
National Computerised Identity Reference System: Ople v Torres21
In this case, Senator Blas Ople challenged the validity of Administrative Order No 308 entitled
‘Adoption of a National Computerised Identification Reference System’, in part because it violated
the right to privacy. The Court agreed. It pointed out the ‘potential for misuse of the data to be
gathered under AO No 308’. Every time an individual deals with a government agency to avail of
basic services and security, he or she must present his PRN (Payment Reference Number). His or
her transactions with the government will necessarily be recorded. The individual’s file may include
his or her transactions for items such as loan availments, income tax returns, statement of assets
and liabilities, reimbursements for medication, hospitalisation. 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 (Ople, 161).
The court therefore held a national computerised identity reference system to be
unconstitutional, thereby protecting the right to privacy.
Right against unreasonable searches and seizures
Villanueva v Querubin22
The rationale for the right to privacy was elegantly expressed in Villanueva, where the amount of
P10,350.00 and a wooden container was seized by the police by virtue of a search warrant issued by
respondent Judge Querubin on the residence of the petitioner, Oscar Villanueva: It is deference to
one's personality that lies at the core of this right, a recognition of a constitutionally protected area,
primarily one’s home. What is sought to be guarded is a person's prerogative to choose who is allowed
entry to his or her residence. In that haven of refuge, his or her individuality can assert itself not
only in the choice of who shall be welcome but likewise what kind of objects he or she wants in that
place. The state, however powerful, should not have access, for in the traditional formulation, his
house, however humble, is his castle. Thus, any unwarranted intrusion by government is outlawed,
and the state is called on to refrain from any invasion of a person’s dwelling and to respect the
privacies of his or her life (Villanueva, 350). This decision clearly constitutes protection against
government intrusion.
People v Cogaed23
Unfortunately, search and seizure was misclassified as an autonomy right in the search and seizure
case of Cogaed. The Court considered the privacy violated to be that of autonomy, and not simply
that of intrusion. There was nothing wrong in the application of the law or the decision of the case.
In fact, it was an excellent decision. Nonetheless, the Court misconstrued the type of privacy violated.
The defendant was convicted of the crime of illegal possession of marijuana. The defendant’s bag
was searched without a warrant and three bricks of marijuana were found. He had not acted
suspiciously. A jeepney (jeep taxi) driver had, however, had texted the police and informed them of a
possible crime. The defendant was ordered to open his bag and it was searched without his being
fully apprised of his rights. This was not a reasonable search within the meaning of the Constitution.
Unfortunately, the ponente began his decision with this ill-advised observation. ‘The mantle of
protection upon one's person and one's effects conferred by Article III, Section 2 of the Constitution
is essential to allow citizens to evolve their autonomy and, hence, to avail themselves of their right
to privacy’ (Cogaed, 432). There are two inaccuracies in this quotation. First, search and seizure is
21
22
23
Ople, supra n. 14.
GR No L-26177, 27 December 1972; 48 SCRA 345.
GR No 200334, 30 July 2014; 731 SCRA 427.
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not essentially connected to autonomy, although it is intimately related to privacy. An individual’s
decision-making process is only marginally and indirectly affected by searches and seizures. The case
therefore had nothing to do with autonomy. It dealt with privacy. It involved an intrusion on privacy,
not autonomy privacy. There was no threat to the defendant’s autonomy, only a physical (and illegal)
intrusion into his possessions. There was no indication that he was committing a crime to warrant
the search of his personal effects.
Second, it misconstrued the relation between autonomy and privacy, when it held that the search
and seizure clause ‘is essential to allow citizens to evolve their autonomy and, hence, to avail
themselves of their right to privacy’ (Cogaed, 432). The ponente misinterpreted the relationship.
Privacy serves autonomy but autonomy does not serve privacy. Autonomy is only an aspect of privacy.
To make use of the right to privacy, an individual must have the autonomy to make his or her own
decisions, unencumbered by the demands of the state.
As Emerson (1973: 340) stated, ‘[…] the right of privacy consists of protection for the three
elements which are at the core of individuality. The first is autonomy, which is necessary in order to
retain control over one's destiny as an individual’. Autonomy is personal sovereignty combined with
self-determination. According to Mill (1990: 135), the ‘only part of the conduct of any one, for which
he is amenable to society, is that which concerns others. In the part which merely concerns himself,
his independence is, of right, absolute. Over himself, over his own body and mind, the individual is
sovereign’. Feinberg, a century later, developed this concept: ‘Personal autonomy […] involves the
idea of having a domain or authority in which the self is sovereign’. He adds: ‘to say that I am
sovereign over my bodily territory is to say that I, and I alone, decide (so long as I am capable of
deciding) what goes on there. My authority is a discretionary competence; an authority to choose and
make decisions’ (Feinberg, 1986: 52-53). Raz (1986: 369) also explains autonomy as selfdetermination: ‘The ruling idea behind the ideal of personal autonomy is that people should make
their own lives. The autonomous person is a (part) author of his own life. The ideal of personal
autonomy is the vision of people controlling to some degree, their own destiny, fashioning it through
successive decisions throughout their lives’. In the Roe v Wade case, it was commented that the right
to autonomy includes ‘a specific right of personal choice in matters of marriage and family life’.24 The
right to privacy protects the individual from interference in the making of personal decisions or life
choices. This decisional privacy is a right to autonomy.
It is true that privacy and autonomy are intimately related. One must enjoy privacy to act
autonomously. Autonomy concerns privacy of decision-making, wherein an individual is allowed
complete freedom, without interference from the state, to make up his or her own mind to do as he
or she wills. In short, autonomy is an aspect of privacy and privacy serves the value of autonomy.
The dilemma experienced by the defendant in this case was not that of a violation of his
autonomy. It was a violation of his privacy, an invasion of his physical space. Decision-making was
not involved. The court in the Eisenstadt v Baird case25 commented:
If the right of privacy means anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child (Eisenstadt, 453)
In summary, the intrusion was not in the decision-making process but in physical space, that is, in
the searching of the bag’s contents. Hence, it was his privacy, and not his autonomy that was violated.
Unwarranted Disclosure
Income tax returns: Ty v CA (Ty, 836)
This is case a case involving the disclosure of information regarding a person's income. A father-inlaw sought to recover certain properties claimed to be part of the estate of his deceased son, which
his daughter-in-law intended to sell to raise money to pay the estate taxes. To prove his son's non-
24
25
Roe v Wade, 410 US 113, 168 (1973).
405 US 438 (1972)
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ownership, he attached a number of his son’s income tax returns to his reply to his daughter-in-law's
amended answer. The daughter-in-law sought to have these returns struck from the record for
violating the rule on confidentiality and the constitutional right to privacy of communication and
correspondence.
The Court denied the daughter-in-law's motion on the grounds of prematurity. The time for
objection was during trial, when these records would be presented for evidence. Hence, the issue of
whether the income tax returns were private or not was not settled.
Physician-Patient Confidentiality: Krohn v CA26
In proceedings for the declaration of nullity of marriage on the grounds of psychological incapacity,
a husband sought to introduce as evidence a psychiatric report about his wife taken early in their
marriage. The wife sought have the report struck off the records on the grounds of privilege or
physician-patient confidentiality.
The Court ruled that the confidentiality provision applies only to the physician, and not to a third
party who may have secured a copy of the report. However, the husband’s testimony on the matter
was hearsay and his testimony, as well as the report itself, would be inadmissible as evidence for
that reason. Unfortunately, the wife did not object to his testimony on this ground and waived her
right to object, rendering the report and the husband's testimony admissible.
Right against self-incrimination
As previously mentioned, the right against self-incrimination both involves improper intrusion and
unwarranted disclosure.
Pascual v Board of Examiners27
The connection between the right against self-incrimination and the right to privacy was eloquently
expressed by then Justice, later Chief Justice, Fernando, in Pascual. The Board filed a case for
alleged immorality against Arsenio Pascual Jr, where it would present as its first witness Pascual
himself, who objected on the ground of his constitutional right to be exempt from being a witness
against himself. The court held that the constitutional guarantee stands for a belief that, while crime
should not go unpunished and that the truth must be revealed, such desirable objectives should not
be accomplished according to means or methods offensive to the high sense of respect accorded the
human personality. While earlier decisions stressed the principle of humanity on which this right is
predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current
judicial opinion places equal emphasis on its identification with the right to privacy. A zone of privacy
which government may not force to surrender to his detriment is created. It comprises a right to a
private enclave where he may lead a private life (Pascual, 349-50).
Invitations to dialogue or intimidatory interrogations: Babst v National Intelligence Board28
In Babst, journalists critical of martial law were requested to appear before a Special Committee at
Philippine Army Officer's Clubhouse, Fort Bonifacio, Metro Manila to shed light on confidential
matters. These matters, of course, concerned adverse reporting on military activities during martial
law. A dissenting opinion described the invitations:
(The journalists) complain that ‘some of them have received summonses, subpoenas or directives from
military authorities who have subjected them to sustained interrogation, touching the most delicate aspects
of their work, feelings, sentiments, beliefs, associations and even aspects of their private lives’. From August
to December of 1982, several such subpoenas were received by some of the petitioners, most of which came
in the wake of the mass arrest, indictment and prosecution of the editor and staff of the publication We
Forum, which could be read as a threat that petitioners might also be subjected to similar treatment and
26
27
28
GR No 108854, 14 June 1994; 233 SCRA 146.
GR No L-25018, 26 May 1969; 28 SCRA 344.
GR No L-62992, 28 September 1984; 132 SCRA 316.
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that those ‘who have been subjected to the aforesaid sustained interrogation found it an ordeal creating a
“chilling effect” on their work’. (Babst, 333)
Clearly, this involved a violation of disclosure privacy of the most egregious kind, as the dissent
intimated. The majority decision did not make such a definitive pronouncement, since it decided the
case based on mootness (that is, that the action complained of had ceased), since the military chose
to discontinue such interrogations. In other words, there no longer remained any controversy since
what was objected to had been stopped. Nonetheless strong grounds exist to proclaim such
interrogations as anathema and in violation of the Constitution, particularly when done during the
period of martial law, which was the situation obtaining at the time of the case.
Decisional Privacy
Intrusion
Marital privacy: Ilusorio v Bildner29
This case involved a wife who filed for a writ of habeas corpus so that she could have custody of her
husband. The Court denied the writ on the ground that there was no illegal restraint of liberty. ‘The
evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano
Ilusorio's liberty that would justify the issuance of the writ’ (Ilusorio, 2000: 175). Moreover, to subject
him to unwanted visitation rights would be a violation of his right to privacy:
With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of
visitation rights against his free choice. Otherwise, we will deprive him of his right to privacy. Needless to
say, this will run against his fundamental constitutional right. (Ilusorio, 2000: 176)
Ilusorio v Bildner30
A Motion for Reconsideration was filed after this decision, in which the wife, Erlinda, asked the Court
to enforce consortium between her and her husband. In resolving the case, the court chose not to
intrude into the privacy of the spouses in terms of the decision of whether to live together or not.
They had been living apart and she was fearful that her two children were using their sick and frail
father, whom she claimed to be mentally incapacitated, to sign away conjugal property to companies
controlled by the children.
. . . Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family Code
support her position that as spouses, they (Potenciano and Erlinda) are duty bound to live together and
care for each other. We agree.
The law provides that the husband and the wife are obliged to live together, observe mutual love, respect
and fidelity. The sanction therefore is the ‘spontaneous, mutual affection between husband and wife and
not any legal mandate or court order’ to enforce consortium. (Ilusorio, 2001: 432)
Duncan Association v Glaxo-Wellcome31
The Employee Code of Conduct of Glaxo stipulated that if management perceives a conflict of interest
or a potential conflict between, on the one hand, a (present or future) relationship between the
employee and co-employees or employees of competing drug companies and, on the other, the
employee’s employment with the company, the management and the employee would explore the
possibility of a ‘transfer to another department in a non-counterchecking position’ or preparation for
employment outside the company after six months. Tecson was aware of such a stipulation and
agreed to it as a condition of his employment. Thereafter, he fell in love with Bettsy, an employee of
a competing company, and eventually married her. This presented a conflict. After numerous
29
30
31
GR No 139789, 12 May 2000; 332 SCRA 169.
GR No 139789, 19 July 2001; 361 SCRA 427.
GR No 162994, 17 September 2004; 438 SCRA 343.
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attempts to resolve it, the company decided to assign him to a different province where no such
conflict would exist. Tecson claimed that his transfer constituted constructive dismissal and sought
to have it nullified. The Court agreed with Glaxo that the transfer a valid exercise of management
prerogative.
‘Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and
other confidential programs and information from competitors’ (Duncan, 352). The Court added,
‘Glaxo does not impose an absolute prohibition against relationships between its employees and those
of competitor companies. Its employees are free to cultivate relationships with and marry persons of
their own choosing. What the company merely seeks to avoid is a conflict of interest between the
employee and the company that may arise out of such relationships’ (Duncan, 355). It concluded:
. . . the record shows that Glaxo gave Tecson several chances to eliminate the conflict of interest brought
about by his relationship with Bettsy. Tecson’s supervisors at Glaxo constantly reminded him about the
effects of his relationship on his employment with the company and on the company’s interests. After Tecson
married Bettsy, Glaxo gave him time to resolve the conflict by either resigning from the company or asking
his wife to resign from Astra. Glaxo likewise acceded to his repeated requests for more time to resolve the
conflict of interest. When the problem could not be resolved after several years of waiting, Glaxo was
constrained to reassign Tecson to a sales area different from that handled by his wife for Astra. Notably,
the Court did not terminate Tecson from employment but only reassigned him to another area. Clearly, the
foregoing dispels any suspicion of unfairness and bad faith on the part of Glaxo. (Duncan, 355)
This appears to be a case where the right to privacy was not protected, as its value was outweighed
by management prerogative or business interests. However, as the Court explained, there was
actually no prohibition of relationships. Tecson was still free to marry whomever he wanted.
However, something had to be done to ensure that the conflict that arose because of the relationship
would be negated, and this was accomplished by Tecson's reassignment.
Religious or marital privacy: Estrada v Escritor (Escritor, 1)32
Estrada v Escritor was not decided on the basis of the right to privacy but on religious conscientious
objection grounds. Nonetheless, it could have been converted into a privacy case, as indeed one
separate opinion did.
In the case, the Office of the Court Administrator (OCA) recommended the suspension of a court
employee, a member of Jehovah’s Witnesses, from the Civil Service for disgraceful and immoral
conduct for six months. The employee who was married under the eyes of the law, but validly divorced
from the point of view of her religion, cohabited with another upon remarriage under her religion.
From her own perspective and that of her religion, there was nothing immoral about her
cohabitation. However, since her acts constituted the crime of concubinage under Philippine law, her
conduct was considered grossly immoral under Civil Service Law.
The Court treated the case as one of conscientious objection and remanded the case to the OCA
to determine whether the defence of religious conscientious objection applied. It could also have been
considered a case of privacy. According to the Court, ‘More than religious freedom, I look with
partiality to the rights of due process and privacy’ (Escritor, 207, per Davide, CJ, italics in original).
If treated in this way, the employee could have argued that the determination of whether she was
validly divorced or not, and therefore able to remarry and cohabit with another, was a private or
internal matter to be decided in accordance with her own conscience or that of her religion. From
that perspective, it could be argued that the choice imposed upon her by the law between family or
marriage and her job was an unconstitutional one.
Justice Bellosillo, who wrote a separate opinion, was painfully aware of the woman’s situation.
He proclaimed:
32
A.M. No P-02-1651, 4 August 2003; 408 SCRA 1.
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Indeed, in light of these facts, what better institution is there to judge her morality than her own church;
what business does the government have to judge her conduct that is not criminal in nature nor destructive
of her efficiency in the service? (Escritor, 193)
He added the observations of Judge Maceda, who was directed by the OCA to investigate the
complaint.
Judge Maceda formulated the issue in terms of ‘whether the moral standards of the Catholic faith, to which
a great majority of us belongs, must be exacted of [the] respondent to determine her administrative
responsibility when she is a member of the Jehovah’s Witnesses’ (Escritor, 198)
Thereafter, he (Judge Maceda) ‘rendered his Report and Recommendation absolving the respondent
of the charge of immorality on the ground that her relationship has been well-accepted by the
religious sect to which she and her partner adhered’ (Escritor, 196). Justice Bellosillo further
concluded: ‘To be sure, there are matters that are best left to the conscience and the moral beliefs of
an individual, and matters of which public law may take cognizance’ (Escritor, 199). Clearly, the
judge believed that this was a matter of private concern.
Gender privacy: Silverio v Republic33
Silverio had a sex change from male to female and then sought to have her birth certificate amended
to reflect her new gender (that of a female), and to change the name on the birth certificate from
Rommel to Mela. The Court ruled that neither a person’s first name nor gender on a birth certificate
can be changed on the ground of gender reassignment.
The change of gender or a change of name in the birth certificate is not a private matter that a
person may undertake. It has a public function and importance, and only the legislature can
determine as to what comprises allowable or justifiable grounds for such change.
In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines
should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for correction or change
of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex,
it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege
(Silverio, 394-95).
Privacy right to abortion: Imbong v Ochoa or the Reproductive Health Law Case34
The issue of a privacy right to abortion did not arise in the Imbong case. This is because the
Constitution itself, by means of art II, s12, mandates that ‘the State shall equally protect the life of
the mother and the life of the unborn from conception’. However, there were certain observations
made by the Supreme Court relevant to the issue. The majority opinion noted that the framers of the
1987 Constitution had the clear and unequivocal intent to protect the life of the unborn from
conception. Thus it intended to prevent the legislature from enacting a measure legalising abortion.
Clearly, there is no privacy right to abortion under Philippine law. If a statute is enacted creating
one, it would almost certainly be declared invalid and unconstitutional. It would require a
constitutional amendment for a such a right to be created.
Privacy right to the use of contraceptives: Imbong v Ochoa or The Reproductive Health Law Case
On the other hand, a privacy right to the use of contraceptives is not outrightly unconstitutional. No
provision in the 1987 Philippine Constitution renders it so. Consequently, RA No 10354, the Act
Providing for a National Policy on Responsible Parenthood and Reproductive Health of 2012,
33
34
GR No 174689, 19 October 2007; 537 SCRA 373.
GR No 204819, 08 April 2014; 721 SCRA 146.
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sought to grant women a reproductive right to the use of contraceptives. The relevant provision on
marital consent or spousal privacy in ss 23(a)(2)(i) of this Law states.
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of
legal age on the ground of lack of consent or authorization of the following persons in the
following instances:
(i) Spousal consent in case of married persons: provided, that in case of disagreement, the
decision of the one undergoing the procedures shall prevail.
The Court found this provision unconstitutional for transgressing against ‘family solidarity’,
protected by Art XV of the 1987 Constitution:
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the demands
of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from
all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family associations to participate in the planning and implementation of
policies and programs that affect them.
The Court concluded that the Responsible Parenthood and Reproductive Health Law cannot be
allowed to infringe upon this mutual decision-making. Non-participation in the decision whether to
use contraceptives would drive a wedge between the husband and wife, possibly result in bitter
animosity, and endanger the marriage and the family. This would be a marked departure from the
policy of the State to protect marriage as an inviolable social institution. Decision-making involving
a reproductive health procedure is a private matter that belongs to the couple, not just one of them.
Any decision they reach will affect their future as a family because the size of the family or the
number of their children matters significantly. The decision whether or not to undergo the procedure
belongs exclusively to, and is shared by, both spouses as a cohesive unit. It is a constitutionally
guaranteed private right (Imbong, 349-50).
A concurring opinion added:
Clearly, on its face, Section 23 (a)(2)(i) contradicts the unity of direction of the spouses, conflicts with the
solidarity or the family, and collides with the fundamental equality before the law of men and women. In
particular, it goes against the constitutional right of the spouses to found a family and to jointly decide on
the number and spacing of their children. Rather than fostering unity between the spouses, it tends to
foment discord and sow division between them. (Imbong, 470)
Another opinion, which concurred in part and dissented in part, objected to the solution of the
majority opinion as it conferred absolute authority on one spouse, the non-consenting spouse, which
is again contrary to family solidarity.
... When the ponencia states that the aforesaid decision–making process must be settled through the
spouses' mutual consent and that the State cannot intrude in such, process because of the right to marital
privacy, the implicit result is that the other spouse, who refuses to give his or her consent, is given the
absolute and final authority to decide this matter. In other words, the result reached by the ponencia is
merely the opposite of that under the RH Law. That is, the non–consenting spouse is effectively given the
absolute and final authority in the decision–making process.
I find this result equally repugnant to the afore–discussed constitutional provisions (Imbong, 616).
This opinion suggested state intervention in marital rights and obligations only when there are
genuine and serious disagreements between the spouses. This view is consistent with the provisions
of the Family Code on dispute resolution between spouses which preserves and adheres to the
constitutional precept on the solidarity of the family and the right, belonging to both spouses, to
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found the family. State intervention, which provides the solution to the problem, involves calling
upon the courts to ultimately settle the dispute in case of disagreement between the spouses (Imbong,
616-17). This view is contrary to United States jurisprudence. In Eisenstadt,35 it was asserted:
[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of
two individuals each with a separate intellectual and emotional makeup. If the right of privacy means
anything, it is the right of the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
(Eisenstadt, 453, italics in original)
There were dissenting opinions in the Imbong case, which argued for the constitutionality of the
provision. The Chief Justice stated:
By means of placing importance to the primary decision of the spouse undergoing the reproductive health
procedure, the RH Law stresses only the fundamental right of each person to decide for his or herself what
to do with one's body.36
Justice Perlas-Bernabe added:
In the final analysis, the constitutional right to found a family should not be shallowly premised on the
mere decision on the number of children; the right to found a family, more importantly, looks towards the
well–being of its members, such as the reproductive health of the spouse undergoing the disputed
procedure. To this end, the decision of said family member should be respected and not be overruled by
either his/her spouse or by the courts. Respect for individual autonomy, especially in cases involving the
individual ’s physical well–being, is a reasonable limitation and, even, a corollary to the spouses' collective
right to found a family. (Imbong, 729)
The only dissenter agreed:
The general rule encourages married persons to discuss and make a conjugal decision on the matter. They
are caught in a problem when they disagree. This agreement may fester and cause problems within their
family. The disagreement will not be created by the RH Law. It will exist factually regardless of the law.
Section 23(a)(2)(i) of the law becomes available to break this deadlock and privilege the decision of the
spouse undergoing the procedure.
This is logical since the reproductive health procedures involve the body, health and well being of the one
undergoing the procedure. (Imbong, 831).
The dissenter added:
By declaring Section 23(a)(2)(i) as unconstitutional, the majority interprets the privacy and autonomy of
the family as also providing insulation of patriarchal or sexist practices from state scrutiny.This is not what
the Constitution intends. (Imbong, 834)
This was a clear case where privacy rights lost out. This was ultimately due to the pervasive influence
of the Catholic Church, which considered the use of contraception to be a sin.
Privacy in cybersex: Disini v Secretary of Justice 37
The Cybercrime Prevention Act of 2012, or Republic Act No 10175, punishes cybersex, which is the
‘willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration,’ with imprisonment of prison mayor (a prison term of 6-12 years) or a fine, or both.
This definition allows for innocent trysts between husbands and wives to be criminally punishable.
Take, for example, a husband who misses his wife and sends a message to his wife to undress before
35
36
37
Eisenstadt v Baird, mentioned above.
‘Sa pamamagitan ng pagpapahalagasapangunahingpasiya ng asawangsasailalimsa reproductive health procedure,
pinaiigtinglamang
ng
RH
Law
ang
pangangalagasapangunahingkarapatan
ng
bawattaonamagpasiyaukolsakanyangsarilingkatawan.’ per Sereno, CJ, Concurring and Dissenting. Imbong at 472.
GR No 203335, 11 February 2014; 716 SCRA 237.
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him on the Internet with the promise that he will buy her a new refrigerator if she does this. She
willingly agrees and does so. This would satisfy the definition of cybersex in the law since the wife
engaged in a lascivious exhibition of her sexual organs for favour or consideration – the refrigerator.
Innocent trysts are not the only situations punishable by this law. Works of art and medical
journals satisfy these elements too. The Petitioners in their Brief informed the Court of this
possibility.
Petitioners claim that the above violates the freedom of expression clause of the Constitution. They express
fear that private communications of sexual character between husband and wife or consenting adults,
which are not regarded as crimes under the penal code, would now be regarded as crimes when done ‘for
favour’ in cyberspace. In common usage, the term ‘favour’ includes ‘gracious kindness, ’‘a special privilege
or right granted or conceded,’ or ‘a token of love (as a ribbon) usually worn conspicuously’. This meaning
given to the term ‘favour’ embraces socially tolerated trysts. The law as written would invite law
enforcement agencies into the bedrooms of married couples or consenting individuals. (Disini, 309)
This is how the Court responded to the matter.
But the deliberations of the Bicameral Committee of Congress on the section of the Cybercrime Prevention
Act give a proper perspective on these issues. These deliberations show a lack of intent to penalize a ‘private
showing . . . between and among two private persons . . . although that may be a form of obscenity to
some’. The understanding of those who drew up the cybercrime law is that the element of ‘engaging in a
business’ is necessary to constitute the illegal cybersex. The Act actually seeks to punish cyber prostitution,
white slave trade, and pornography for favor and consideration. This includes interactive prostitution and
pornography, i.e., by webcam. (Disini, 310)
The Supreme Court suggests that courts ought to look beyond the words of the statute to the
deliberations of Congress to determine its true intent. But that is contrary to the principles of
statutory construction.
Time and time again, it has been repeatedly declared by this court that where the law speaks in clear and
categorical language, there is no room interpretation, there is only room for application.38
For nothing is better settled than that the first and fundamental duty of courts is to apply the law as they
find it, not as they like it to be. Fidelity to such a task precludes construction or interpretation, unless
application is impossible or inadequate without it.39
Congress failed to express its intent precisely. The Supreme Court failed to reject the act on the
grounds that it was too broad, so Congress was spared from making the necessary amendment to s
4(c)(1). As a result, private, innocent acts between consenting adults have been made criminal by
this ill-formulated law. It might be argued that privacy rights were lost in this case but the Supreme
Court did not think so, arguing that innocent trysts between consenting adults at the Internet would
not be criminally punished. This was because it urged the judges to decide the case not in accordance
with the letter of the law but instead look at the congressional deliberations to determine the true
intent of Congress. This is unlikely to happen, as courts will, in all probability, apply the law as
written, there being no ambiguity in its language.
Privacy in motel rooms: White Light v City of Manila40
I end this paper with the White Light case, which mistakes the right to privacy for the right to the
pursuit of happiness. A Manila city ordinance prohibited motels and inns from offering short-time
admissions, as well as pro-rated or ‘wash up’ rates for such abbreviated stays. Some motel operators,
as a result, filed a case to declare the city ordinance invalid and unconstitutional as it violated, among
others, the right to privacy. The ordinance was enacted with a view of regulating public morals,
including illicit activity in transient lodging establishments. Its apparent goal was to minimise, if not
38
39
40
Cebu Portland Cement vs Municipality of Naga, GR Nos 24116-17, 22 August 1968; 24 SCRA 708, 712 (1968).
Resins, Inc v Auditor General, GR No L-17888, 29 October 1968; 25 SCRA 754, 757 (1968).
GR No 122846, 20 January 2009; 576 SCRA 416.
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eliminate, the use of the establishments covered by the statute for illicit sex, prostitution, drug use
and the like.
The Supreme Court invalidated the ordinance on the grounds that it violated customers’ right to
privacy. The right, being a fundamental liberty, required that it pass the test of strict scrutiny rather
than the rationality test to be valid. This it failed to do. Strict scrutiny required that the end of the
ordinance be a compelling state interest and the means used be not just rational but the least
restrictive. As the Court held, ‘Indeed, the right to privacy as a constitutional right was recognised
in Morfe v Mutuc, the invasion of which should be justified by a compelling state interest’ (White
Light, 440). It also pointed out that:
There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire
families are known to choose to pass the time in a motel or hotel whilst the power is momentarily out in
their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose
for abbreviated stays in motels or hotels. Indeed, any person or groups of persons in need of comfortable
private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can
legitimately look to staying in a motel or hotel as a convenient alternative. (White Light, 441)
Hence, the least restrictive means was not used.
Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active
police work would be more effective in easing the situation. So would the strict enforcement of existing laws
and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on
the businesses of the petitioners and other legitimate merchants. (White Light, 443)
Moreover, even if the court did not say so, the ordinance was formulated too broadly and was thus
guilty of overbreadth. It included prohibitions which were not intended to be prohibited, such as the
renting of a room for legitimate purposes, would be disallowed. Customers wishing to stay in motels
for purposes other than sex were prohibited from doing so.
The rationality test was satisfied by the regulation. It was reasonable to expect that prostitution
and sexual vice would be minimised in Manila by the ordinance. Of course, vice in general might not
be lessened, as a couple might exercise their prerogative to patronise a motel in a neighbouring city.
However, it did not satisfy strict scrutiny. The state’s interest, morality, was not compelling enough;
the least restrictive means was not used; and the ordinance was not narrowly tailored.
At the onset of the discussion of the case, I intimated that this was not a case of privacy. It is, in
fact, a case of the right to the pursuit of happiness. There was no disclosure of private matters. There
was no intrusion into the private life of customers. Their rooms were not invaded by unwanted police
officers. This was not a case of decisional privacy either, as it did not transgress the free expression
of personality, of how to live one's personal life without undue interference from others. The right
violated was too trivial, the decision to be made not of an intimate or significant nature. Couples
could still pursue sexual activities of their choice, just not within the confines of the motels and inns
of the City of Manila. Rather, they were simply prevented from pursuing a leisurely activity in these
motels and inns.
The Court went overboard in its desire to protect the right to privacy in this case. The Ordinance
was valid because it satisfied the rationality test, which was the applicable standard because the
liberty involved was not a preferred freedom. Customers would be only inconvenienced by such an
ordinance, as they would only be compelled to rent the motel for a longer stay or patronise a motel
outside the confines of Manila.
Conclusion
In this paper, I have explored the meaning of privacy in Philippines law, its aspects, the manner in
which the right to privacy may be violated, and the standard of strict scrutiny. I have also discussed
informational privacy and decisional privacy, analysing numerous cases that illustrate these aspects
of privacy.
I have shown that the right to privacy, on the whole, has been protected by Philippine
jurisprudence. The only cases where it has not are the Duncan, Disini and Imbong cases. However,
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I have pointed out that the decision in Duncan did not amount to a prohibition of relationships, as
Tecson was still free to marry whomever he desired. In Disini, the Court itself was not of the opinion
that innocent trysts between consenting adults would be criminally punished by the law. It was only
in Imbong that privacy was unprotected. This was due to the pervasive influence of the Catholic
Church and its prohibition of the use of contraceptives.
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Posner, Richard A (1977) ‘The Right of Privacy’,12 Georgia Law Review 393.
Raz, Joseph (1986) The Morality of Freedom. Oxford: Clarendon Press.
Singson, Gabriel C (2001) ‘Law and Jurisprudence on Secrecy of Bank Deposits’, 46 Ateneo Law Journal 670.
Solove, Daniel J (2002) ‘Conceptualizing Privacy’,90 California Law Review1087.
Tan, Oscar Franklin (2008) ‘The Complete Philippine Right to Privacy’, 82(4) Philippine Law Journal 78.
Thomson, Judith J (1975) ‘The Right to Privacy’, 4 Philosophy and Public Affairs 295.
Warren, Samuel Dand Brandeis, Louis D (1890) ‘The Right to Privacy’, 4 Harvard Law Review193.
Westin, Alan J (2003) ‘Social and Political Dimensions of Privacy’, 59 Journal of Social Issues 2.
White, G Edward (1996) ‘The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America’,
95 Michigan Law Review 299.
Legislation
Art 26 of the New Civil Code or Republic Act No. 386 (1948).
Republic Act No 1405 (1955), the Bank Secrecy Act
Republic Act No. 3019 (1960) the Anti-Graft and Corrupt Practices Act.
Presidential Decree No 1792 (1981).
Manila City Ordinance No 7774 or An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and WashUp Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of
Manila
Constitution, 1987, art III and art XV
RA No 10354, the Reproductive Health and Responsible Parenthood Act of 2012
Cases
Philippine Cases
Morfe v Mutuc, GR No L-20387, 31 January 1968; 22 SCRA 424
Cebu Portland Cement v Municipality of Naga, GR Nos. 24116-17, 22 August 1968; 24 SCRA 708 (1968)
Resins Inc v Auditor General, GR No L-17888, 29 October 1968; 25 SCRA 754 (1968)
Pascual v Board of Examiners, GR No L-25018, 26 May 1969; 28 SCRA 344
Villanueva v Querubin, GR No L-26177, 27 December 1972; 48 SCRA 345
Babst v National Intelligence Board, GR No L-62992, 28 September 1984; 132 SCRA 316
Krohn v CA, GR No 108854, 14 June 1994; 233 SCRA 146
Ty v CA, GR No 122656, 5 September 1997; 278 SCRA 836
Ople v Torres, GR No 127685, 23 July 1998; 293 SCRA 141
Ilusoriov Bildner, GR No 139789, 12 May 2000; 332 SCRA 169
Ilusoriov Bildner, GR No 139789, 19 July 2001; 361 SCRA 427
Estrada v Escritor, A.M. No P-02-1651, 4 August 2003; 408 SCRA 1
Duncan Association v Glaxo-Wellcome, GR No 162994, 17 September 2004; 438 SCRA 343
Ejercito v Sandiganbayan, GR No 157294, 30 November 2006; 509 SCRA 190
Silverio v Republic, GR No 174689, 19 October 2007; 537 SCRA 373
White Light v City of Manila, GR No 122846, 20 January 2009; 576 SCRA 416
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Australian Journal of Asian Law
Vol 19 No 1
Disini v Secretary of Justice, GR No 203335, 11 February 2014; 716 SCRA 237
Imbong v Ochoa, GR No 204819, 08 April 2014; 721 SCRA 146
People v Cogaed, GR No 200334, 30 July 2014; 731 SCRA 427
United States Cases
Olmstead v United States, 277 US 438 (1928)
United States v Carolene Products Co, 304 US 144 (1938)
Thomas v Collins,323 US 516, 530 (1945)
Public Utilities Commission v Pollak, 343 US 451 (1952)
Braunfieldv Brown, 366 US 599, 612 (1961)
Griswold v Connecticut, 381 US 479 (1965)
Eisenstadt v Baird, 405 US 438 (1972)
Roe v Wade, 410 US113 (1973)
Whalen v Roe (429 US 589 (1977)
Employment Division v Smith, 494 US 872 (1990)
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