SolGen Guevarra: NCAP does not violate privacy rights of motorists

Published December 6, 2022, 7:45 PM

by Rey Panaligan 

Solicitor General Menardo I. Guevarra

Government lawyers told the Supreme Court (SC) on Tuesday, Dec. 6, that the enforcement of the no-contact apprehension policy (NCAP) does not violate the privacy rights of motorists.

Solicitor General Menardo I. Guevarra said that “while NCAP cameras capture vehicle images that violate traffic rules and regulations, they are neither designed to capture, nor are these cameras capable of obtaining, facial recognition images of the drivers.”

“This fact attenuates and weakens petitioners’ claim of violation of their right to privacy,” Guevarra told the SC justices, representatives of transport groups, and a lawyer who all challenged the constitutionality of NCAP during the oral arguments conducted by the High Court.

At the same time, Guevarra said that “more importantly, the sharing by the LTO (Land Transportation Office) of vehicle registration data with the local governments involves information necessary to carry out functions of public authorities.”

“It is therefore a sharing of personal information which is expressly excluded from the coverage of the Data Privacy Act under Republic Act No. 10173,” he stressed.

The first petition against NCAP was filed by the Kilusan sa Pagbabago ng Industriya ng Transportasyon, Inc. (KAPIT), Pangkalahatang Saggunian Manila and Suburbs Drivers Association Nationwide (Pasang-Masda), Alliance of Transport Operators and Drivers Association of the Philippines (ALTODAP), and Alliance of Concerned Transport Organization (ACTO).

They told the SC the implementation of NCAP is unconstitutional and thus invalid.

At the time the first petition was filed, the NCAP was being implemented in Metro Manila by the local governments of Quezon City, Manila, Valenzuela City, Muntinlupa City, and Parañaque City through their ordinances based on the 2016 resolution of the Metropolitan Manila Development Authority (MMDA) which ordered the re-implementation of NCAP.

In their petition, the transport groups told the SC that the ordinances of the LGUs are violation of the existing statutes, which do not establish, authorize and even mention any no-contact apprehension; that the wordings of the Republic Act No. 4136 (LTO law) is clear, any inclusion that include NCAP, is void; that the NCAP implementation violates due process; that the NCAP provisions imposes unreasonable conditions that include non-renewal of the vehicle registration until such time that the fines are settled; and that the NCAP implementation makes innocent third persons liable for traffic violations.

Acting on the petition last Aug. 16, the SC directed to LTO and the five cities to comment both on the petition and the plea for TRO.

The second petition was filed by lawyer Juman B. Paa who also pleaded for the issuance of a TRO against the NCAP being implemented in the City of Manila.

In his petition, Paa asked the SC to declare unconstitutional Manila City Ordinance No. 8676, series of 2020, on NCAP.

He said the Manila Traffic and Parking Bureau (MTPB) has access to the database of the LTO relative to the details of the vehicle, including the name of the owner and address.

At the same time, he said most NCAPs in the National Capital Region (NCR) are also operated by a private firm through a profit-sharing agreement.

Paa said that “if a private company is performing the function of the MTPB, their access to the close circuit television (CCTV) footage might be used for other purposes like surveillance of a particular person thus exposing citizens to risks against safety and privacy.”

Thus, he pointed out that there is a violation of the right to data privacy because the consent of the owners of the registered vehicles was not obtained before the operation of the website which contains sensitive personal information.

Last Aug. 30, the SC stopped the LTO and several cities in Metro Manila from enforcing the NCAP for traffic violations. It decided to conduct oral arguments.

Guevarra said the failure of the petitioners in the cases to raise the issue on data privacy violation before the National Privacy Commission (NPC) should be a ground to deny their petitions.

He said there was no basis on the claim that the LTO law, Republic Act No. 4136, allows only face-to-face apprehension of traffic violators and that traffic violations are liability of the erring drivers and not the registered owners.

NCAP ordinances issued by LGUs precisely require notification of the registered owner as a means of identifying and discovering the violator of the law, he stressed.

“These ordinances mandate the notification of the registered vehicle owner so that he may contest his presumed liability and, where applicable, adduce evidence identifying the actual driver of the vehicle who committed the traffic violation,” he explained.

“This mechanism not only affords the notified party of his due process rights. It also implements the very purpose for which the registered owner rule was established,” he added.

At the same time, Guevarra pointed out that the power of local government units to promulgate ordinances to address traffic concerns “is beyond dispute” and “subject only to the requirement that it does not violate any national law and policy.”

“The NCAP ordinances – which establish a system for the capture of the traffic violations and the subsequent identification of the owners of the vehicles involved in such violation for the purpose of ultimately identifying the offending driver – do not in any way contravene any national law or policy,” he said.

The petitioners in the cases, represented by lawyer Greg Pua Jr., told the SC the NCAP ordinances were issued by the LGUs with grave abuse of discretion as these contravenes the Constitution and existing laws.

Pua said that NCAP ordinances are “oppressive, unreasonable and disadvantageous to motorists” since the livelihood of petitioners are threatened as the registration of the vehicles are affected by the assailed ordinances.

He downplayed by Guevarra’s arguments that the NCAP is a valid exercise of police power as this would promote culture of discipline among motorist, improve driving behavior, ensure road safety and reduce traffic violations and accidents.

“While the assailed ordinances were purportedly issued pursuant to the police power of the respondents, the same are invalid exercise of police power since this violates the Constitution, the Land Transportation Office- Traffic Code, the Data Privacy Act, for being oppressive, disadvantageous and unreasonable,” he asserted.

“The excessive imposition of fines and penalties under NCAP warrants the declaration of its invalidity since, as ruled by the this Court, a regulatory fee must not produce revenue in exceeds of the cost of regulation because such fee will be construed as an illegal tax when the revenue generated by the regulation exceeds the cost of regulation,” he said.

The SC decided to resume the oral arguments on the cases on Jan. 24, 2023.