Only five days back, Land Transportation chief Teofilo Guadiz issued a memorandum directing the head of the LTO Management Information Division to disconnect the access of local government units and the Metropolitan Manila Development Authority to the alarm tagging system.
The rationale for the issuance of the memo is “pending development of uniform guidelines for the implementation of NCAP” or the No Contact Apprehension Policy being carried out by the private sector through private-public partnerships.
It is not clear which body will craft the uniform guidelines.
But in the House of Representatives, Albay Rep. Joey Salceda has commented that the NCAP, as carried out by the private sector, has put its legality in question, noting the imposition of fines and penalties, for instance, could not be delegated by the government to private companies as in the case of some LGUs implementing the NCAP.
Was this perhaps one of reasons why a few hours after the LTO memo was issued, Guadiz, who holds the rank of Assistant Secretary, told the Management Information Division to re-activate all LGUs’ account deactivated following his previous instruction to recall the memo?
We can easily understand the confusion from the ranks of LTO officials, given that there has been neither confirmation nor denial by Guadiz of the reported issuance and recall.
Salceda was on track when he asked: “Can law enforcement be the subject of a PPP? There appears to be no legal precedent for the exercise of the police power by a private enterprise on behalf of the state.”
The Albay solon has a point there, because it would appear to contradict the established doctrine of the state’s monopoly of force, considering that the apprehension of traffic violators is “the exercise of the police power of the state.”
Salceda is correct in pointing out that the police power of the state is originally a legislative power, delegated to the executive branch for implementation but it cannot be delegated further to private companies.
Since police power involves the power of force, which is the monopoly of the state, law enforcement as a grain in PPP cannot be the subject of a commercial agreement between the state and the private sector.
Salceda also warned that the NCAP must conform with the Data Privacy Act and other supplementary guidelines since it is being implemented using closed-circuit television or CCTVs.
Such guidelines include the National Privacy Commission Advisory 2020-04, or the Guidelines on the Use of CCTVs, especially because private firms operate the CCTVs, and not the government under “lawful surveillance” clauses.
If we must add posthaste there should also have been substantial consultation before the PPPs were set into motion, which is required under PPP Governing Board Resolution 2016-06-02.