Sunday, March 6, 2011

190 - Philippines SC Struck Down Their UID as Unconstitutional by Ruchi Gupta

In Politics and Government on August 31, 2010 at 10:51 PM
By Ruchi Gupta

Proposal: Former President Fidel Ramos issued Administrative Order (“AO”) 308 on Dec 12, 1996 to establish a “National Computerized Identification Reference System”. As per the AO, the biometric ID system would help “efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations”. The ID system was to use the Population Reference Number (PRN) “as the common reference number to establish a linkage among concerned agencies”

Response: On January 24, 1997, a petition was filed in the Supreme Court challenging the A.O. for reasons of, inter alia, “ unconstitutional usurpation of the legislative powers of the Congress” and for laying the “groundwork of a system which will violate the bill of rights [privacy] enshrined in the Constitution”. The Supreme Court issued a “temporary restraining order enjoining its [ID system] implementation”

Resolution: Supreme Court declared Administrative Order No. 308  “null and void for being unconstitutional.” In its order, the SC agreed with the petition on both counts stating, “as said administrative order redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law” and “the threat [to right to privacy] comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens”

Parallels with India: UIDAI was set up by a GoI notification on January 28 2009.  UIDAI has been operating without statutory status for the past year and a half, in which it has signed MoUs with all states and UTs, Rural Development and Petroleum ministries, many public sector banks, LIC and others.

A bill to achieve statutory status, Draft National Identification Authority Bill 2010 was circulated in July 2010, which states, “On and from the establishment of the Authority — (1) all the assets and liabilities of the Unique Identification Authority of India, established vide notification of the Government of India in the Planning Commission number A-43011/02/2009-Admin.I, dated the 28th January, 2009, shall stand transferred to, and vested in, the Authority” (Clause 22) essentially subverting the power of the Parliament to prescribe limits on the Authority’s operations. Further, the UID project suffers from all the inherent privacy and civil liberties risks of a biometric based national ID system (covered in greater detail in the Issue Overview document)