SolGen defends NCAP; says use of vehicles in public roads a privilege, not a right

Mike Navallo, ABS-CBN News

Posted at Dec 07 2022 03:40 AM | Updated as of Dec 07 2022 09:31 AM


Guevarra asks for lifting of TRO

MANILA — The use of vehicles on public roads is “nothing more than a privilege” that can be subject to regulation, Solicitor General Menardo Guevarra said Tuesday in justifying the “no physical contact apprehension policy” (NCAP) of some Metro Manila local government units (LGUs).

Guevarra defended the ordinances of Valenzuela, Parañaque, Muntinlupa, Quezon City and Manila which allowed traffic enforcers to apprehend traffic violators through the use of closed-circuit television (CCTV) cameras and impose fines based on the captured images.

Three groups of petitioners challenged these measures before the Supreme Court, claiming, among others, violations of their constitutional rights to due process and privacy.


Guevarra questioned whether they could even bring their petition before the high court in the first place in the absence of a right or of a clear actual or threatened injury of that right, a key requirement, according to him, before the SC can entertain petitions filed before it.

Citing the 2015 SC case of MMDA v. Garin, he said there can be no violation of a right that does not exist.

“[M]otor vehicles are instruments of potential danger… The right to operate them in public places is not a natural and unrestrained right, but a privilege subject to reasonable regulation, under the police power, in the interest of the public safety and welfare. The power to license imports further power to withhold or to revoke such license upon noncompliance with prescribed conditions,” Guevarra told SC magistrates.

He pointed out that transport groups KAPIT, PASANG MASDA, ALTODAP, and ACTO, which comprise the first group of petitioners, failed to allege any injury while the claimed injury of the second petitioner, lawyer Juman Paa, came from his own violation of traffic rules.

Paa said he was constrained to pay more than P20,000 in fines, including surcharges and interests, to the Manila Traffic and Parking Bureau after his car was caught four times violating a traffic ordinance.

“As a general rule, a constitutional challenge to a governmental act ‘as applied’ is permissible only upon assertion of a violation of the challenger’s rights,” Guevarra said. “The rule prohibits one from challenging the constitutionality of the statute based solely on the violation of the rights of third persons not before the court.”

Guevarra claimed petitioners failed to exhaust administrative remedies and violated the doctrine on the hierarchy of courts when they filed their petition directly before the Supreme Court — a point SC Associate Justice Japar Dimaampao hammered on in his interpellation of the petitioners.

He pointed out that under the 2019 SC case of GIOS-Samar v. DOTC, the Supreme Court will no longer accept cases directly filed with the high court if there are factual issues involved, such as the alleged violations claimed by petitioners in the case.

Paa invoked the transcendental importance of the issue before the Court, saying public money is involved in the implementation of NCAP.

He also justified going straight to the Supreme Court by saying time is of the essence in the case -- a temporary restraining order (TRO) issued by a regional trial court will last only between 3 to 20 days while a TRO issued by the SC will remain effective until lifted.

The SC issued a TRO on NCAP in August, which has remained in place.

Guevarra asked the high court to reconsider the order but Chief Justice Alexander Gesmundo ordered the parties instead to submit additional documents within 5 days so the court can revisit the issue.


Guevarra defended the validity of the NCAP ordinances, explaining that they can be considered a valid delegation by the State of police power to local governments that is allowed under the general welfare clause of the Local Government Code of 1991.

The Metropolitan Manila Development Authority’s own resolution implementing NCAP, he said, has been upheld by the high court.

A key issue raised by petitioners is the alleged violation of their right to due process.

Transport groups claimed the ordinances would allow traffic enforcers to apprehend motorists without citing which specific provision of the Land Transportation and Traffic Code (RA 4136) they allegedly violated.

They added they would also be prejudiced because the fines are imposed on registered vehicle owners, not the drivers themselves, with the ordinances supposedly creating a presumption of liability on the part of the registered owners that could affect their livelihood.

For lawyer Lorman Arugay, arguing for the Philippine National Taxi Operators, the third group of petitioners, what essentially happens is that the burden to prove innocence is shifted to the registered owner of the vehicle, rather than the accuser proving the registered owner’s liability for a traffic violation.

He questioned why the failure to submit an objection to a citation is treated as an admission.

Paa, for his part, said he was not given an opportunity to contest the traffic citations within a reasonable time for him to recall if he was the one in fact driving his car, because the notices of violations were sent to the wrong address.

He said he was made aware of the traffic citations only a year later, after incurring surcharges and interests for non-payment.

The lack of a recourse to address the absence of notices, he said, is another violation of his right to due process.

But Guevarra said the application of the rule attributing liability to the registered vehicle owner is well-established not just in cases involving accidents and recovery of damages.

“The NCAP ordinances precisely require notification of the registered vehicle 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,” 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.


Guevarra also rejected the petitioners’ claims of violation of their right to privacy.

Paa had questioned the Land Transportation Office’s arrangement with LGUs in sharing the personal information of motorists in order to implement NCAP.

That arrangement, he said, should not extend to private service contractors hired by LGUs to run their NCAP program.

Paa claimed that by simply entering the plate number of a vehicle on the Manila LGU website, his sensitive personal information was shown to the public without his consent.

But for Guevarra, there is no violation of privacy rights.

“[T]he sharing by the LTO of vehicle registration data with the local governments involves information necessary to carry out functions of public authorities,” he said. “It is therefore a sharing of personal information which is expressly excluded from the coverage of the Data Privacy Act,” he said.

He added that NCAP cameras capture images of vehicles that violate traffic rules, not images of drivers.

“Moreover, petitioners have not established an expectation of privacy while exercising the privilege of openly using vehicles on public roads,” he said.

In violation of privacy cases, the courts check whether a person exhibited a reasonable expectation of privacy and if that expectation has been violated by government intrusion.

Another point petitioners raised that the government has yet to address is the supposed exorbitant fees imposed under NCAP compared to ordinances employing physical apprehensions.

Meanwhile, Guevarra accused Malcolm Law, the counsel of the transport groups, of not disclosing a pending petition before a Makati court also questioning NCAP.

Lawyer Greg Pua, Jr. of Malcolm Law said there was no violation of the rule requiring disclosure in the certification against forum shopping because there were no similar parties between the two cases. It is his law firm MALCOLM Law that has a pending petition before the RTC, not his clients, he said.


In his bid to save NCAP, Guevarra cited the worsening traffic conditions in Metro Manila and NCAP as a supposedly “innovative” way to address it.

Average travel speed in Metro Manila, he said, has dropped from 32.86 kilometers per hour in 2013 to 23.38 kilometers per hour in 2019, while the volume of vehicles has risen from 1.37 million in 2002 to 3.12 million as of October 2022.

Traffic apprehensions also rose from 162,364 in 2002 to 250,767 prior to the pandemic in 2019.

But with the implementation of NCAP, LGUs supposedly saw the number of daily traffic violations decline by as much as 95 percent in Manila, 82 percent in Valenzuela, 84 percent in Parañaque, and 75 percent in Quezon City, according to an audiovisual presentation shown by Guevarra.

The NCAP also supposedly teaches discipline because 79 percent of violators in Manila are non-repeat offenders.

But these gains, according to Guevarra, were reversed when the TRO was issued.

“We, therefore, pray that this Most Honorable Court greenlight the NCAP’s re-implementation, especially at this point when government has embarked on the difficult task of reinvigorating our economy devastated by the pandemic,” he said.

But for petitioners, who remained firm on the alleged violations of their rights, the end doesn’t justify the means.

“No doubt the respondents would be presenting facts, statistics and data in order to convince this Honorable Court that no physical contact apprehension or NCAP is an effective traffic regulation and that it has lessened traffic, among other beneficial effects,” Pua said.

“However, petitioners emphasize that any benefit of the NCAP does not and should not justify the patent violation of the Constitution and existing statutes,” he added.

The NCAP oral arguments will continue on Jan. 24, 2023, with Dimaampao expected to interpellate the Solicitor General.


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