Court asked to declare: ‘eSalvar’ unconstitutional

Eight private individuals have filed on Monday, Oct. 5 before the Regional Trial Court (RTC) a special civil case seeking to declare as unconstitutional the Naga city government’s “eSalvar” ordinance for violation of the due process and equal protection clauses, including the rights to liberty, privacy, freedom of movement as guaranteed by the 1987 Constitution.

The special civil case for certiorari and prohibition under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or preliminary injunction over the implementation of the “eSalvar” ordinance, was filed by petitioners: lawyers Agapito B. Rosales and Alex A. Arejola; Edgardo M. Castro, a retired government employee; Edizza Lynn D. Quides, Dianne M. Durante, Roy Angelo R. Belleza, Francis Patray P. Bolaños, and Paulo Gabriel D. Jamer, all law students.

They are represented by their counsel, Atty. Luis Ruben M. General of the Free Legal Assistance Group (FLAG), Bikol Chapter.

Cited as respondent in the case is the local government unit (LGU) of Naga City represented by Mayor Nelson S. Legacion and Vice-Mayor Cecilia B. Veluz-De Asis.

The petitioners asked the court to declare Sections 3,5,6,7,8,9,10, 13(a, b and c), 14 and 20 of Ordinance No. 2020-086 otherwise known as the Digital Contact Tracing System Ordinance of Naga City or “eSalvar” Ordinance, as null and void for violation of the due process and equal protection clauses including the rights to liberty, privacy, freedom of movement as guaranteed by the 1987 Constitution. They sought from the court the following reliefs:

a). immediate issuance of a temporary restraining order (TRO) by “orderingMayor Nelson S. Legacion and all other persons acting for or on his behalf, to desist from taking any action to implement Ordinance No. 2020-086, particularly the assailed provisions thereof, for a period of twenty (20) days;”

b). issuance of a writ of preliminary injunction after due hearing and before the expiry of the TRO;

c). issuance of a writ of certiorari annulling the pertinent provisions of the ordinance and declaring them as unconstitutional; and

d). issuance of a writ of prohibition ordering the respondents and their representatives or agents to refrain and desist from implementing the invalid provisions of the ordinance.

To recall, Legacion approved on Sept. 14, 2020 the “eSalvar’ Ordinance to facilitate the city government’s contract tracing efforts amidst the rising cases of coronavirus (Covid-19) in the city.

On Sept.25, LGU Naga posted on its Facebook page an announcement that starting Oct. 18, “the use of manual log-in (pen and paper) for contact tracing shall be prohibited. eSalvar shall be required for all employees, clients, suppliers and service providers entering the following indoor or enclosed establishments in Naga City.”

These establishments include: malls; grocery/convenience/department stores; boutiques; markets; restaurants/eateries/cafes/bars/fastfood chains;barbershops/salons/spa;banks;car dealerships/repair shops; laundry/computer shops; hotels/inns;gyms; public and private offices;hospitals/clinics;places of worships; institutions; and funeral homes.

As of 3:00 PM on Oct. 6, 2020, some 422,115 individuals have already registered with “eSalvar,” according to Allen Reondanga, chief of the Naga City Events, Protocol and Public Information Office.

The petitioners claimed that Legacion has already implemented the ordinance even if it is not yet in effect since “it was not or has not yet been posted for a minimum period of three (3) weeks as required under the Local Government Code (RA 7160).”

Legacion, it will be recalled, already implemented the “no QR code, no entry”policy in the premises of the Naga City Hall.

Violations of the Constitution

In the 28-page petition filed with the court, the petitioners alleged that the ordinance: grossly violated Constitutionally guaranteed freedoms; and the Data Privacy Law.

While conceding that purpose of the ordinance is well-intentioned, the petitioners claimed that the “means employed for its attainment, even under the pretext of public health and welfare, are unreasonable and or arbitrary as they restrain Constitutionally guaranteed freedoms, particularly the right to due process, equal protection and privacy and freedom of movement.”

They said that Section 3 of the ordinance which states that it “shall cover all residents, business establishments and public and private offices within the territorial jurisdiction of the City of Naga” is unfair and oppressive as it violates the guarantee of due process.

They said that by treating business establishments and public and private offices alike without distinction, the ordinance violates the equal protection clause as they are governed by different laws and subject to different regulations.

Private establishments have the complete autonomy, subject to reasonable regulations, as to who may gain entry to their premises, unlike public offices where the public may enter at any time during regular office hours, the petitioners said.

In addition to this, Sections 5,6,7 and 9 of the ordinance will also be a tool to restrict the liberty of individuals to enter any or all government offices and private establishments in Naga City if they do not have a QR code or QR ID card, they said.

Section 9 provides that “ If an individual has no QR ID card, the office or establishment through the designated personnel shall not allow entry of such individual.

In short, petitioners said every Nagueño or transient is “effectively coerced” to register with “eSalvar” for survival. Also the establishments covered by the ordinance are compelled to register with the contact tracing application, otherwise, they will be punished with a fine or imprisonment, or both for non-registration.

The ‘eSalvar’ ordinance imposed fines and penalties ranging from P1,000 to P5,000 and imprisonment of not more than six months or both fine and imprisonment for individual who uses the QR ID card of another, impersonates another or cause the printing of QR ID for profit.

The same fine and penalties are imposed on any public or private establishment for failure to register to “eSalvar” and follow the appropriate provisions of the ordinance.

Violation of Data Privacy Law

The petitioners also believed that the ordinance violated Republic Act No. 10173 or the Data Privacy Act of 2012 as far as the retention of the 30-day check-in/out history of registrants is concerned.

They argued that while Section 10 (c) of the ordinance states that “all recorded information of an individual’s date and time of visit or entry in an office/establishment shall be automatically deleted from the server,” the privacy statement of the “eSalvar” website says otherwise.

The “eSalvar” privacy policy states that “We retain your personal data for as long as eSalvar remains an active program of the City Government of Naga in addressing the CoVID-19 pandemic. Only the past thirty (30) days your check-in/out records are retained in the system. Your check-in/out records beyond 30 days are automatically deleted in the system.”

The petitioners claimed that even if “eSalvar” is authorized to retain the registrants data or information for 30 days, the retention of the same for 30 days is arbitrary and unreasonable as it would no longer serve its purpose.

They said that under Department Memorandum No. 2020-0189 of the Department of Health (DOH), the relevant information in the contact tracing process is the “daily travel history, places visited, and events attended” by the suspected Covid-19 case for the past 14 days prior to the onset of illness.

“Hence, data retention of the check-in/out history of a registered individual beyond 14 days serves no more legitimate interest insofar as contact tracing is concerned. To say otherwise would permit unwarranted intrusion into the privacy of every individual registered with ‘eSalvar’, the petitioners argued.

As of Wednesday, Oct. 7, the case against ‘eSalvar’ was reportedly assigned to RTC Branch 62 under Judge Laurencio A. Puto. No formal statement was issued by the Naga City government regarding the case.