Court declares 2 ‘eSalvar’ sections unconstitutional but rest of ordinance legal

By Ed G. Yu

NAGA CITY --- Judge Pablo Cabillan Formaran III of the Regional Trial Court (RTC) Branch 21 here has declared Sections 9 and 6 of the eSalvar ordinance of Naga City pertaining to “No QR Code, No Entry” policy and mandatory registration to the contract tracing app, respectively, as unconstitutional, while Section 5 (b) on the collection of personal information pertaining to birth dates and sex of registrants was also declared invalid.

In a 53-page decision issued Apr. 8, 2021, Formaran finally settled the question of the constitutionality of Naga City Ordinance 2020-086 otherwise known as the Digital Contact Tracing System Ordinance of Naga City or popularly known as eSalvar.

To recall, on Oct. 5, 2020, eight private individuals filed

before the RTC a special civil case seeking to declare as unconstitutional the eSalvar ordinance for violation of the due process and equal protection clauses, including the rights to liberty, privacy, and freedom of movement as guaranteed by the1987 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 were represented by their counsel, Atty. Luis Ruben M. General.

Cited as respondent in the case was 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 eSalvar null and void for violation of the 1987 Constitution.

In his decision, Formaran partially granted the prayers of the petitioners by declaring as unconstitutional Sec. 9(g) of the eSalvar ordinance, which requires the mandatory use of the eSalvar application or the so called “No QR ID, No Entry” policy.

Although the original eSalvar ordinance’s provision on “No QR ID, No Entry” was effectively amended by Ordinance No. 2020-101, which deleted Sec. 9(g), thus making the use of the eSalvar app already optional, Formaran denied respondents’ move to dismiss the case for being moot and academic because the issue on violation of the Data Privacy Act still remains in the original ordinance despite the amendment.

Further, Formaran also declared unconstitutional Sec. 6 of the ordinance, which requires the mandatory registration of all individuals, whether permanent or temporary city residents with the eSalvar app.

Likewise, the judge also declared invalid Sec. 5 (b) paragraphs 2 and 4 of the ordinance, which require the collection and processing of sensitive personal information relative to birthdate and sex of registrants.

Despite Formaran’s declaration of unconstitutionality of two provisions of the ordinance and the invalidity of the collection of sensitive personal information related to birthdate and sex, he upheld as valid and constitutional the rest of the provisions of the eSalvar ordinance as amended.

Claims of victory

Both petitioners and respondent are claiming victory over the court’s decision.

“For me, it is the PEOPLE who WON as our human rights are upheld and our liberties are reaffirmed in the decision,” Edizza Lynn Quides, one of the petitioners said in her Facebook (Fb) post on Apr. 29. She said “There are some important points in the decision the city officials opted not to disseminate to the public just to falsely claim that ‘IT’S A WIN FOR NAGA.”

Zenaida Najera Bragais, a retired MTCC judge, in her comment to an Fb post of Quides said “even before the court rendered its judgment, gana na ang petitioners. That was when the city amended the eSalvar ordinance to make the registration and use of QR merely voluntary. It was a clear admission by the city that, as the petitioners pointed out in the petition, the pertinent provision requiring compulsory registration for almost everyone and virtually withholding even basic government services from those without a QR, was unconstitutional and therefore illegal.”

She added that “The court’s decision, however, is still significant as it is a reminder to those in government that anything done beyond the limits of its authority is illegal and needs to be stricken down no matter how commendable the purpose may be. And whether or not driven by politics, the petitioners deserve a tap on the shoulder for courageously demanding that government toes the constitutional line.”

On the part of the respondent, Naga City Mayor Nelson Legacion in an Fb post on Apr. 29 said “GANA AN NAGA SA E-SALVAR!” (It’s a win for Naga in eSalvar). His statement was accompanied by eight slides where he enumerated and explained why the city government won in the eSalvar case.

Legacion thanked Judge Formaran for appreciating the important role of the eSalvar application in the contract tracing efforts of the city. He said that based on the court’s decision, the city government can continue to use the app.

Based on decision, the mayor said, the “Court agrees eSalvar better and safer way of contract tracing than manual logbooking.”

Indeed, in his decision, as quoted by Legacion, Formaran said “What is notably unique under the eSalvar System is that one need not have a mobile phone as the QR ID generated upon registration, may be printed or laminated. This is so, especially if the person opts not to store his QR ID in a mobile device. On the other hand, registration through manual log booking method or Isulat takes longer and may actually be unhygienic, as correctly pointed out by the respondents.”

The Naga City mayor also highlighted the court’s ruling that the eSalvar ordinance does not violate the equal protection clause of the constitution.

According to Legacion, the decision said “The world is currently in a pandemic which WHO defines as ‘the worldwide spread of a new disease.’ Contrary to the belief of the petitioners, it does not matter whether public or private offices or establishments vary in objective, purpose, functions or governing laws or regulations. All those who run, manager or operate them must implement the same regulation mandated by the ordinance to vest those who work or visit those entities the same protection and treatment, as all are similarly situated in the pandemic. Anyone may be infected by the virus.

Formaran’s decision also affirmed that the city government has sufficient bases to collect and manage data for contact tracing.

These legal bases include Republic Act (RA) No. 11332 or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concerns Act and Department of Health (DOH) Memorandum No. 2020-0258-A dated July 6, 2020.

Lastly, Legacion said the court finds the eSalvar app design substantially compliant with the Data Privacy Act and its implementing rules and regulations.

As this developed, supporters of the respondent or the pro-eSalvar and the petitioners or the anti-eSalvar, as of press time, are still engage in word wars in social media, most of which have already degenerated in insults and personal attacks.

Lawyer Luis Ruben General, counsel of the petitioners, in a Fb post said “ xxx Sa eSalvar na issue, gulpi palan madudunong (with emoticons) useless to engage with these dimwits.” (In the eSalvar issue, there are many who are all knowing. Useless to engage with these dimwits). His post as of May 2 got 104 likes, 10 comments and two shares.

Meanwhile, Joe Osabal, a top-rated radio broadcaster and staunch supporter of Legacion, posted in his Fb page “ Habo sa eSalvar eGadan/eCremate garo an gusto,” (Does not want eSalvar, probably wants eDeath/eCremate). His post as of May 2 generated 1,900 likes, 219 comments and 248 shares.

Amidst the continuing social media war between pro and anti-eSalvar supporters, Covid-19 cases in Naga City continue to rise. As of May 3, Naga City registered a total of 440 active cases, 924 total recoveries and 37 deaths.