THE Office of the Solicitor General (OSG) assured motorists that the implementation of the no-contact apprehension policy (NCAP) being implemented by several local government units (LGUs) will not violate privacy rights of motorists under Republic Act 10173 or the Data Privacy Act of 2012.
This was stressed by Solicitor General Menardo Guevarra during Tuesday’s oral arguments held by the Supreme Court on the petitions filed by several transport groups and lawyer Juman Paa assailing the constitutionality of NCAP.
While NCAP cameras capture vehicle images that violate traffic rules and regulations, Guevarra noted that these cameras are neither designed nor capable of obtaining facial recognition of the drivers.
“This fact attenuates and weakens petitioners’ claim of violation of their right to privacy,” the government chief counsel explained.
Furthermore, Guevarra pointed out that in assessing any claim of violation of privacy rights by the State, the Court has always looked into whether the person claiming violation of such right has shown reasonable expectation of privacy and, if so, whether the expectation has been violated by unreasonable government intrusion.
In this case, Guevarra said the petitioners failed to establish an expectation of privacy while exercising the privilege of openly using vehicles in public roads.
In their petition, the petitioners argued that NCAP violates the provisions of Data Privacy Act of 2021 as it can be used to conduct unlawful surveillance and monitoring of people’s movements by private individuals.
They added that the sharing of registration database of LTO with the local government unit without the consent of data subjects, violates Sections 12 (Criteria for Lawful Processing of Personal Information) and 13 (Sensitive Personal Information and Privileged Information) of the Data Privacy Act of 2012.
However, Guevarra argued that the sharing by the LTO of vehicle registration data with the LGUs involves information “necessary to carry out the functions of public authorities.”
“It is therefore a sharing of personal information which is expressly excluded from the coverage of the Data Privacy Act ,” Guevarra said.
Guevarra also pointed out the failure of the petitioners to elevate their concern of data privacy violation before the National Privacy Commission (NPC) should be a ground to deny the petitioners’ claim of violation of their right to privacy.
The solicitor general also downplayed petitioners’ argument that Republic Act 4136 which created the Land Transportation Office (LTO0, allows only face-to-face apprehension of traffic violators and that traffic violations are liability of the erring drivers and not the registered owners.
He explained that NCAP ordinances precisely require notification of the registered owner as a means of identifying and discovering the violator of the law.
“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,” Guevarra noted.
“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.
Guevarra also noted that the SC has held in several cases that “registered owner is considered the employer, and the negligent driver, his agent, for purposes of ascribing liability.”
The OSG also argued 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,” Guevarra explained.
Last August 30, the SC decided to indefinitely enjoin the implementation of NCAP as sought by the petitioners –Kilusan sa Pagbabago ng Industriya ng Transportasyon Inc. (KAPIT), Pangkalahatang Sangguniang 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) and Lawyer Juman B. Paa.
Paa, in his separate petition, questioned the constitutionality of the NCAP being implemented by the Manila City government after he was forced to pay huge fines and penalties for four traffic violations (obstruction of the pedestrian lane) before he could register his vehicle.
The transport groups are questioning the legality of the implementation of NCAP considering that it has no basis either in the Republic Act 7924 that serves as the enabling charter of the MMDA and the RA 4136.
They added that the ordinances of the LGUs allowing NCAP are invalid since there are no existing laws passed by the Congress that allows the implementation of such regulation.
The petitioners are also complaining against the unreasonable provisions of the NCAP that include non-renewal of the vehicle registration until such time that the fines are settled and for including innocent third persons liable for traffic violations.
They argued that NCAP should be declared unconstitutional for being violative of the motorists’ constitutional right to due process; for being oppressive and confiscatory; and for violation of privacy rights.
Lawyer Greg Pua, Jr, who argued for the petitioners, insisted that the ordinances on NCAP were issued with grave abuse of discretion as these contravenes the Constitution and existing laws.
He said NCAP 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.
Pua belittled the claim of the OSG that that 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.”
“The excessive of the fines and penalties imposed under NCAP warrants the declaration of its invalidity 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 added.
Pua said the fact that a larger percentage of the fines and penalties collected under NCAP goes to a private contractor only shows that the fines and penalties exceed the cost of regulation.
The oral argument on the petitions will continue on January 24, 2023.
