Same; Same; Same; Rational Relationship Test; Strict Scrutiny Test; To

successfully invoke the exercise of police power as the rationale for the enactment of an
ordinance and to free it from the imputation of constitutional infirmity, two tests have
been used by the Court―the rational relationship test and the strict scrutiny test.—To
successfully invoke the exercise of police power as the rationale for the enactment of
an ordinance and to free it from the imputation of constitutional infirmity, two tests
have been used by the Court―the rational relationship test and the strict scrutiny
test: We ourselves
G.R. No. 161107. March 12, 2013.*

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of 143

Marikina City, JOSEPHINE C. EVANGELISTA, in her capacity as Chief,
Permit Division, Office of the City Engineer, and ALFONSO ESPIRITU, in
his capacity as City Engineer of Marikina City, petitioners,  vs.  ST. VOL. 693, MARCH 12, 2013 143
SCHOLASTICA’S COLLEGE and ST. SCHOLASTICA’S ACADEMY-
MARIKINA, INC., respondents. Fernando vs. St. Scholastica's College

Constitutional Law; Police Power; Police power is the plenary power vested in the have often applied the rational basis test mainly in analysis of equal protection
legislature to make statutes and ordinances to promote the health, morals, peace, challenges. Using the rational basis examination, laws or ordinances are upheld if
education, good order or safety and general welfare of the people.—“Police power is they rationally further a legitimate governmental interest. Under intermediate
the plenary power vested in the legislature to make statutes and ordinances to review, governmental interest is extensively examined and the availability of less
restrictive measures is considered. Applying strict scrutiny, the focus is on the
_______________ presence of compelling, rather than substantial, governmental interest and on the
* EN BANC. absence of less restrictive means for achieving that interest.
Same; Same; Same; The State may not, under the guise of police power,
142
permanently divest owners of the beneficial use of their property solely to preserve or
enhance the aesthetic appearance of the community.—Regarding the beautification
purpose of the setback requirement, it has long been settled that the State may not,
under the guise of police power, permanently divest owners of the beneficial use of
142 SUPREME COURT REPORTS their property solely to preserve or enhance the aesthetic appearance of the
ANNOTATED community. The Court, thus, finds Section 5 to be unreasonable and oppressive as it
will substantially divest the respondents of the beneficial use of their property solely
Fernando vs. St. Scholastica's College for aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is invalid.
Remedial Law; Civil Procedure; Appeals; Points of law, theories, issues, and
arguments not adequately brought to the attention of the lower court will not be
promote the health, morals, peace, education, good order or safety and general ordinarily considered by a reviewing court, inasmuch as they cannot be raised for the
welfare of the people.” The State, through the legislature, has delegated the exercise first time on appeal.—The petitioners, however, argue that the invalidity of Section 5
of police power to local government units, as agencies of the State. This delegation of was properly cured by Zoning Ordinance No. 303, Series of 2000, which classified the
police power is embodied in Section 16 of the Local Government Code of 1991 (R.A. respondents’ property to be within an institutional zone, under which a five-meter
No. 7160), known as the General Welfare Clause, which has two branches. “The first, setback has been required. The petitioners are mistaken. Ordinance No. 303, Series
known as the general legislative power, authorizes the municipal council to enact of 2000, has no bearing to the case at hand. The Court notes with displeasure that
ordinances and make regulations not repugnant to law, as may be necessary to carry this argument was only raised for the first time on appeal in this Court in the
into effect and discharge the powers and duties conferred upon the municipal council petitioners’ Reply. Considering that Ordinance No. 303 was enacted on December 20,
by law. The second, known as the police power proper, authorizes the municipality to 2000, the petitioners could very well have raised it in their defense before the RTC in
enact ordinances as may be necessary and proper for the health and safety, 2002. The settled rule in this jurisdiction is that a party cannot change the legal
prosperity, morals, peace, good order, comfort, and convenience of the municipality theory of this case under which the controversy was heard and decided in the trial
and its inhabitants, and for the protection of their property.” court. It should be the same theory under which the review on appeal is conducted.
Same; Same; Ordinances; For an ordinance to be valid, it must not only be within Points of law, theories, issues, and arguments not adequately brought to the
the corporate powers of the local government unit to enact and pass according to the attention of the lower court
procedure prescribed by law, it must also conform to the substantive requirements.—
White Light Corporation v. City of Manila, 576 SCRA 416 (2009), discusses the test 144
of a valid ordinance: The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local government unit to enact and 144 SUPREME COURT REPORTS
pass according to the procedure prescribed by law, it must also conform to the ANNOTATED
following substantive requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and Fernando vs. St. Scholastica's College
consistent with public policy; and (6) must not be unreasonable.
 will not be ordinarily considered by a reviewing court, inasmuch as they cannot MENDOZA, J.:
be raised for the first time on appeal. This will be offensive to the basic rules of fair Before this Court is a petition for review on  certiorari  under Rule 45 of
play, justice, and due process. the Rules of Court, which seeks to set aside the December 1, 2003
Constitutional Law; Ordinances; Right to Property; Right to Privacy; Compelling Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 75691.
the respondents to construct their fence in accordance with the assailed ordinance is, The Facts
thus, a clear encroachment on their right to property, which necessarily includes their Respondents St. Scholastica’s College (SSC) and St. Scholastica’s
right to decide how best to protect their property; It also appears that requiring the Academy-Marikina, Inc. (SSA-Marikina) are educational institutions
exposure of their property via a see-thru fence is violative of their right to privacy.— organized under the laws of the Republic of
Compelling the respondents to construct their fence in accordance with the assailed
ordinance is, thus, a clear encroachment on their right to property, which necessarily
_______________
includes their right to decide how best to protect their property. It also appears that
1  Rollo, pp. 37-52. Penned by Associate Justice Jose L. Sabio, Jr., and concurred in by
requiring the exposure of their property via a see-thru fence is violative of their right
Associate Justice Delilah Vidallon-Magtolis and Associate Justice Hakim S. Abdulwahid.
to privacy, considering that the residence of the Benedictine nuns is also located
within the property. The right to privacy has long been considered a fundamental 146
right guaranteed by the Constitution that must be protected from intrusion or
constraint. The right to privacy is essentially the right to be let alone, as
governmental powers should stop short of certain intrusions into the personal life of 146 SUPREME COURT REPORTS ANNOTATED
its citizens. It is inherent in the concept of liberty, enshrined in the Bill of Rights
(Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution. Fernando vs. St. Scholastica's College
The enforcement of Section 3.1 would, therefore, result in an undue interference with
the respondents’ rights to property and privacy. Section 3.1 of Ordinance No. 192 is,
thus, also invalid and cannot be enforced against the respondents. the Philippines, with principal offices and business addresses at Leon
Guinto Street, Malate, Manila, and at West Drive, Marikina Heights,
Statutes; Retroactivity of Laws; Curative statutes are enacted to cure defects in a Marikina City, respectively.2
prior law or to validate legal proceedings which would otherwise be void for want of
Respondent SSC is the owner of four (4) parcels of land measuring a total
conformity with certain legal requirements; Curative statutes, by their very essence,
are retroactive.—“Curative statutes are enacted to cure defects in a prior law or to of 56,306.80 square meters, located in Marikina Heights and covered by
validate legal proceedings which would otherwise be void for want of conformity with Transfer Certificate Title (TCT) No. 91537. Located within the property are
certain legal requirements. They are intended to supply defects, abridge superfluities SSA-Marikina, the residence of the sisters of the Benedictine Order, the
and curb certain evils. They are intended to enable persons to carry into effect that formation house of the novices, and the retirement house for the elderly
which they have designed or intended, but has failed of expected legal consequence sisters. The property is enclosed by a tall concrete perimeter fence built
by reason of some statutory disability or irregularity in their own action. They make some thirty (30) years ago. Abutting the fence along the West Drive are
valid that which, before the enactment of the stat- buildings, facilities, and other improvements.3
The petitioners are the officials of the City Government of Marikina. On
145
September 30, 1994, the Sangguniang Panlungsod of Marikina City enacted
Ordinance No. 192,4entitled “Regulating the Construction of Fences and
VOL. 693, MARCH 12, 2013 145 Walls in the Municipality of Marikina.” In 1995 and 1998, Ordinance Nos.
2175  and 2006  were enacted to amend Sections 7 and 5, respectively.
Ordinance No. 192, as amended, is reproduced hereunder, as follows:
Fernando vs. St. Scholastica's College
ORDINANCE No. 192
Series of 1994
ute was invalid. Their purpose is to give validity to acts done that would have ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND WALLS IN THE
been invalid under existing laws, as if existing laws have been complied with. MUNICIPALITY OF MARIKINA
Curative statutes, therefore, by their very essence, are retroactive.” WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known as the Local
Same; Where part of a statute is void as repugnant to the Constitution, while Government Code of 1991 empowers the Sangguniang Bayan as the local legislative body of
another part is valid, the valid portion, if susceptible to being separated from the the municipality to
invalid, may stand and be enforced.―Sections 3.1 and 5 of Ordinance No. 192, as
amended, are, thus, invalid and cannot be enforced against the respondents. _______________
Nonetheless, “the general rule is that where part of a statute is void as repugnant to 2 Id., at pp. 37-38.
the Constitution, while another part is valid, the valid portion, if susceptible to being 3 Id., at p. 38.
separated from the invalid, may stand and be enforced.” Thus, the other sections of 4 Id., at pp. 74-77.
the assailed ordinance remain valid and enforceable. 5 Id., at pp. 78-79.
6 Id., at p. 80.
PETITION for review on certiorari of a decision of the Court of Appeals. 147
   The facts are stated in the decision of the Court.
  Jason A. Amante for petitioners.
VOL. 693, MARCH 12, 2013 147
  Domingo Fregillana, Jr. for respondents.
Fernando vs. St. Scholastica's College
 VOL. 693, MARCH 12, 2013 149
“x  x  x Prescribe reasonable limits and restraints on the use of property
within the jurisdiction of the municipality, x x x”; Fernando vs. St. Scholastica's College
WHEREAS the effort of the municipality to accelerate its economic and physical development,
coupled with urbanization and modernization, makes imperative the adoption of an ordinance
(2) Fences on the side and back yard – shall be in accordance with the provisions of P.D.
which shall embody up-to-date and modern technical design in the construction of fences of
1096 otherwise known as the National Building Code.
residential, commercial and industrial buildings;
Section 4. No fence of any kind shall be allowed in areas specifically reserved or classified as
WHEREAS, Presidential Decree No. 1096, otherwise known as the National Building Code of
parks.
the Philippines, does not adequately provide technical guidelines for the construction of
Section 5. In no case shall walls and fences be built within the five (5) meter
fences, in terms of design, construction, and criteria;
parking area allowance located between the front monument line and the building
WHEREAS, the adoption of such technical standards shall provide more efficient and effective
line of commercial and industrial establishments and educational and religious
enforcement of laws on public safety and security;
institutions.7
WHEREAS, it has occurred in not just a few occasions that high fences or walls did not
Section 6. Exemption.
actually discourage but, in fact, even protected burglars, robbers, and other lawless elements
(1) The Ordinance does not cover perimeter walls of residential subdivisions.
from the view of outsiders once they have gained ingress into these walls, hence, fences not
(2) When public safety or public welfare requires, the Sangguniang Bayan may allow the
necessarily providing security, but becomes itself a “security problem”;
construction and/or maintenance of walls higher than as prescribed herein and shall
WHEREAS, to discourage, suppress or prevent the concealment of prohibited or unlawful acts
issue a special permit or exemption.
earlier enumerated, and as guardian of the people of Marikina, the municipal government
Section 7. Transitory Provision.—Real property owners whose existing fences and walls do
seeks to enact and implement rules and ordinances to protect and promote the health, safety
not conform to the specifications herein are allowed adequate period of time from the passage
and morals of its constituents;
of this Ordinance within which to conform, as follows:
WHEREAS, consistent too, with the “Clean and Green Program” of the government, lowering
(1) Residential houses – eight (8) years
of fences and walls shall encourage people to plant more trees and ornamental plants in their
(2) Commercial establishments – five (5) years
yards, and when visible, such trees and ornamental plants are expected to create an aura of a
(3) Industrial establishments – three (3) years
clean, green and beautiful environment for Marikeños;
(4) Educational institutions – five (5) years8
WHEREAS, high fences are unsightly that, in the past, people planted on sidewalks to
(public and privately owned)
“beautify” the façade of their residences but, however, become hazards and obstructions to
Section 8. Penalty.—Walls found not conforming to the provisions of this Ordinance shall be
pedestrians;
demolished by the municipal government at the expense of the owner of the lot or structure.
WHEREAS, high and solid walls as fences are considered “unneighborly” preventing
Section 9. The Municipal Engineering Office is tasked to strictly implement this ordinance,
community members to easily communicate
including the issuance of the necessary
148

_______________
148 SUPREME COURT REPORTS ANNOTATED 7 Ordinance No. 200, Series of 1998, id.
8 Ordinance No. 217, Series of 1995, id., at p. 78.
Fernando vs. St. Scholastica's College 150

and socialize and deemed to create “boxed-in” mentality among the 150 SUPREME COURT REPORTS ANNOTATED
populace;
WHEREAS, to gather as wide-range of opinions and comments on this proposal, and as a Fernando vs. St. Scholastica's College
requirement of the Local Government Code of 1991 (R.A. 7160), the  Sangguniang Bayan  of
Marikina invited presidents or officers of homeowners associations, and commercial and
industrial establishments in Marikina to two public hearings held on July 28, 1994 and implementing guidelines, issuance of building and fencing permits, and
August 25, 1994; demolition of non-conforming walls at the lapse of the grace period herein
WHEREAS, the rationale and mechanics of the proposed ordinance were fully presented to provided.
the attendees and no vehement objection was presented to the municipal government; Section 10. Repealing Clause.—All existing Ordinances and Resolutions, Rules and
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUNIANG BAYAN OF MARIKINA Regulations inconsistent with the foregoing provisions are hereby repealed, amended or
IN SESSION DULY ASSEMBLED: modified.
Section 1. Coverage: This Ordinance regulates the construction of all fences, walls and gates Section 11. Separability Clause.—If for any reason or reasons, local executive orders, rules
on lots classified or used for residential, commercial, industrial, or special purposes. and regulations or parts thereof in conflict with this Ordinance are hereby repealed and/or
Section 2. Definition of Terms: modified accordingly.
a. Front Yard – refers to the area of the lot fronting a street, alley or public thoroughfare. Section 12. Effectivity.—This ordinance takes effect after publication.
b. Back Yard – the part of the lot at the rear of the structure constructed therein. APPROVED: September 30, 1994
c. Open fence – type of fence which allows a view of “thru-see” of the inner yard and the (Emphases supplied)
improvements therein. (Examples: wrought iron, wooden lattice, cyclone wire)
d. Front gate – refers to the gate which serves as a passage of persons or vehicles fronting
a street, alley, or public thoroughfare.
On April 2, 2000, the City Government of Marikina sent a letter to the
Section 3. The standard height of fences or walls allowed under this ordinance are respondents ordering them to demolish and replace the fence of their
as follows: Marikina property to make it 80% see-thru, and, at the same time, to move
(1) Fences on the front yard – shall be no more than one (1) meter in height. it back about six (6) meters to provide parking space for vehicles to park.9On
Fences in excess of one (1) meter shall be of an open fence type, at least eighty April 26, 2000, the respondents requested for an extension of time to comply
percent (80%) see-thru; and
with the directive.10 In response, the petitioners, through then City Mayor
149 Bayani F. Fernando, insisted on the enforcement of the subject ordinance.
 Not in conformity, the respondents filed a petition for prohibition with an a writ of prohibition commanding the petitioners to permanently desist from
application for a writ of preliminary injunction and temporary restraining enforcing or implementing Ordinance No. 192 on the respondents’ property.
order before the Regional Trial Court, Marikina, Branch 273 (RTC), The RTC agreed with the respondents that the order of the petitioners to
docketed as SCA Case No. 2000-381-MK.11 demolish the fence at the SSC property in Marikina and to move it back six
The respondents argued that the petitioners were acting in excess of (6) meters would amount to an appropriation of property which could only be
jurisdiction in enforcing Ordinance No. 192, assert- done through the exercise of eminent domain. It held that the petitioners
could not take the respondents’ property under the guise of police power to
_______________ evade the payment of just compensation.
9  Id., at p. 39. It did not give weight to the petitioners’ contention that the parking space
10 Id., at p. 85. was for the benefit of the students and patrons of SSA-Marikina,
11 Id., at p. 39. considering that the respondents were already providing for sufficient
151 parking in compliance with the standards under Rule XIX of the National
Building Code.
It further found that the 80% see-thru fence requirement could run
VOL. 693, MARCH 12, 2013 151 counter to the respondents’ right to privacy, considering that the property
also served as a residence of the Benedictine sisters, who were entitled to
Fernando vs. St. Scholastica's College
some sense of privacy in their affairs. It also found that the respondents
were able to prove that the danger to security had no basis in their case.
ing that such contravenes Section 1, Article III of the 1987 Constitution. Moreover, it held that the purpose of beautification could not be used to
That demolishing their fence and constructing it six (6) meters back would justify the exercise of police power.
result in the loss of at least 1,808.34 square meters, worth about It also observed that Section 7 of Ordinance No. 192, as amended,
P9,041,700.00, along West Drive, and at least 1,954.02 square meters, worth provided for retroactive application. It held, however, that such retroactive
roughly P9,770,100.00, along East Drive. It would also result in the effect should not impair the respondents’ vested substantive rights over the
destruction of the garbage house, covered walk, electric house, storage perimeter walls, the six-meter strips of land along the walls, and the
house, comfort rooms, guards’ room, guards’ post, waiting area for visitors, building, structures, facilities, and improvements, which would be destroyed
waiting area for students, Blessed Virgin Shrine, P.E. area, and the multi- by the demolition of the walls and the seizure of the strips of land.
purpose hall, resulting in the permanent loss of their beneficial use. The The RTC also found untenable the petitioners’ argument that Ordinance
respondents, thus, asserted that the implementation of the ordinance on No. 192 was a remedial or curative statute
their property would be tantamount to an appropriation of property without
due process of law; and that the petitioners could only appropriate a portion _______________
of their property through eminent domain. They also pointed out that the 15 Id., at pp. 54-68. Penned by Judge Olga Palanca-Enriquez.
goal of the provisions to deter lawless elements and criminality did not exist
153
as the solid concrete walls of the school had served as sufficient protection
for many years.12
The petitioners, on the other hand, countered that the ordinance was a VOL. 693, MARCH 12, 2013 153
valid exercise of police power, by virtue of which, they could restrain
property rights for the protection of public safety, health, morals, or the Fernando vs. St. Scholastica's College
promotion of public convenience and general prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary injunction, intended to correct the defects of buildings and structures, which were
enjoining the petitioners from implementing the demolition of the fence at brought about by the absence or insufficiency of laws. It ruled that the
SSC’s Marikina property.14 assailed ordinance was neither remedial nor curative in nature, considering
Ruling of the RTC that at the time the respondents’ perimeter wall was built, the same was
On the merits, the RTC rendered a Decision,15  dated October 2, 2002, valid and legal, and the ordinance did not refer to any previous legislation
granting the petition and ordering the issuance of that it sought to correct.
The RTC noted that the petitioners could still take action to expropriate
_______________ the subject property through eminent domain.
12 Id., at pp. 56-57. The RTC, thus, disposed:
13 Id., at p. 57.
14 Id., at pp. 39-40. WHEREFORE, the petition is  GRANTED. The writ of prohibition is hereby
152
issued commanding the respondents to permanently desist from enforcing or
implementing Ordinance No. 192, Series of 1994, as amended, on petitioners’
property in question located at Marikina Heights, Marikina, Metro Manila.
152 SUPREME COURT REPORTS ANNOTATED No pronouncement as to costs.
SO ORDERED.16
Fernando vs. St. Scholastica's College
Ruling of the CA 155
In its December 1, 2003 Decision, the CA dismissed the petitioners’
appeal and affirmed the RTC decision.
VOL. 693, MARCH 12, 2013 155
The CA reasoned out that the objectives stated in Ordinance No. 192 did
not justify the exercise of police power, as it did not only seek to regulate, Fernando vs. St. Scholastica's College
but also involved the taking of the respondents’ property without due
process of law. The respondents were bound to lose an unquantifiable sense ASSIGNMENT OF ERRORS
of security, the beneficial use of their structures, and a total of 3,762.36 1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
square meters of property. It, thus, ruled that the assailed ordinance could DECLARING THAT CITY ORDINANCE NO. 192, SERIES OF 1994 IS NOT A
not be upheld as valid as it clearly invaded the personal and property rights VALID EXERCISE OF POLICE POWER;
of the respondents and “[f]or being unreasonable, and undue restraint of 2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
RULING THAT THE AFOREMENTIONED ORDINANCE IS AN EXERCISE OF
trade.”17
THE CITY OF THE POWER OF EMINENT DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
_______________ DECLARING THAT THE CITY VIOLATED THE DUE PROCESS CLAUSE IN
16 Id., at p. 68. IMPLEMENTING ORDINANCE NO. 192, SERIES OF 1994; AND
17 Id., at p. 49. 4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
RULING THAT THE ABOVE-MENTIONED ORDINANCE CANNOT BE GIVEN
154 RETROACTIVE APPLICATION.19

In this case, the petitioners admit that Section 5 of the assailed

154 SUPREME COURT REPORTS ANNOTATED ordinance, pertaining to the five-meter setback requirement is, as held by
Fernando vs. St. Scholastica's College the lower courts, invalid.20Nonetheless, the petitioners argue that such
invalidity was subsequently cured by Zoning Ordinance No. 303, series of
2000. They also contend that Section 3, relating to the 80% see-thru fence
It noted that although the petitioners complied with procedural due requirement, must be complied with, as it remains to be valid.
process in enacting Ordinance No. 192, they failed to comply with Ruling of the Court
substantive due process. Hence, the failure of the respondents to attend the The ultimate question before the Court is whether Sections 3.1 and 5 of
public hearings in order to raise objections did not amount to a waiver of Ordinance No. 192 are valid exercises of police power by the City
their right to question the validity of the ordinance. Government of Marikina.
The CA also shot down the argument that the five-meter setback
provision for parking was a legal easement, the use and ownership of which
_______________
would remain with, and inure to, the benefit of the respondents for whom 19 Id., at p. 17.
the easement was primarily intended. It found that the real intent of the 20 Id., at pp. 182-188.
setback provision was to make the parking space free for use by the public,
156
considering that such would cease to be for the exclusive use of the school
and its students as it would be situated outside school premises and beyond
the school administration’s control. 156 SUPREME COURT REPORTS ANNOTATED
In affirming the RTC ruling that the ordinance was not a curative
statute, the CA found that the petitioner failed to point out any irregularity Fernando vs. St. Scholastica's College
or invalidity in the provisions of the National Building Code that required
correction or cure. It noted that any correction in the Code should be “Police power is the plenary power vested in the legislature to make
properly undertaken by the Congress and not by the City Council of statutes and ordinances to promote the health, morals, peace, education,
Marikina through an ordinance. good order or safety and general welfare of the people.”21 The State, through
The CA, thus, disposed: the legislature, has delegated the exercise of police power to local
WHEREFORE, all foregoing premises considered, the instant appeal is DENIED. government units, as agencies of the State. This delegation of police power is
The October 2, 2002 Decision and the January 13, 2003 Order of the Regional Trial embodied in Section 1622  of the Local Government Code of 1991 (R.A. No.
Court (RTC) of Marikina City, Branch 273, granting petitioners-appellees’ petition 7160), known as the General Welfare Clause,23  which has two branches.
for Prohibition in SCA Case No. 2000-381-MK are hereby AFFIRMED. “The first, known as the general legislative power, authorizes the municipal
 SO ORDERED.18 council to enact ordinances and make regulations not repugnant to law, as
may be necessary to carry into effect and discharge the powers and duties
Aggrieved by the decision of the CA, the petitioners are now before this conferred upon the municipal council by law. The second, known as the
Court presenting the following police power proper, authorizes the municipality to enact ordinances as may
be necessary and proper for the health and safety, prosperity, morals, peace,
_______________ good order, comfort, and convenience of the municipality and its inhabitants,
18 Id., at pp. 51-52. and for the protection of their property.”24 
 _______________ 158 SUPREME COURT REPORTS ANNOTATED
21  Social Justice Society (SJS) v. Atienza, Jr., G.R. No. 156052, February 13, 2008, 545
SCRA 92, 136. Fernando vs. St. Scholastica's College
22  Sec. 16. General Welfare.―Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are for not being reasonably necessary to accomplish the City’s purpose. More
essential to the promotion of the general welfare. Within their respective territorial importantly, it is oppressive of private rights.
jurisdictions, local government units shall ensure and support, among other things, the Under the rational relationship test, an ordinance must pass the
preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and self-
following requisites as discussed in Social Justice Society (SJS) v. Atienza,
reliant scientific and technological capabilities, improve public morals, enhance economic Jr.:28
prosperity and social justice, promote full employment among their residents, maintain peace
and order, and preserve the comfort and convenience of their inhabitants. As with the State, local governments may be considered as having properly
23 Acebedo Optical Company, Inc. v. Court of Appeals, 385 Phil. 956, 969; 329 SCRA 314, 325 exercised their police power only if the following requisites are met: (1) the interests
(2000). of the public generally, as distinguished from those of a particular class, require its
24  Rural Bank of Makati v. Municipality of Makati, G.R. No. 150763, July 2, 2004, 433 exercise and (2) the means employed are reasonably necessary for the
SCRA 362, 371-372. accomplishment of the purpose and not unduly oppressive upon individuals. In short,
there must be a concurrence of a lawful subject and lawful method.29
157
Lacking a concurrence of these two requisites, the police power measure
shall be struck down as an arbitrary intrusion into private rights and a
VOL. 693, MARCH 12, 2013 157
violation of the due process clause.30
Fernando vs. St. Scholastica's College Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at
hand, to wit:
White Light Corporation v. City of Manila,25 discusses the test of a valid Section 3. The standard height of fences of walls allowed under this ordinance are as
ordinance: follows:
(1) Fences on the front yard – shall be no more than one (1) meter in height.
The test of a valid ordinance is well established. A long line of decisions Fences in excess of one (1) meter shall be an open fence type, at least eighty
including City of Manila has held that for an ordinance to be valid, it must not only percent (80%) see-thru;
be within the corporate powers of the local government unit to enact and pass x x x x x x x x x
according to the procedure prescribed by law, it must also conform to the following Section 5. In no case shall walls and fences be built within the five (5) meter parking
substantive requirements: (1) must not contravene the Constitution or any statute; area allowance located between the front
(2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4)
must not prohibit but may regulate trade; (5) must be general and consistent with _______________
public policy; and (6) must not be unreasonable.26 28 Supra note 21.
29 Id., at p. 138.
Ordinance No. 192 was passed by the City Council of Marikina in the 30 City of Manila v. Laguio, Jr., 495 Phil. 289, 313; 455 SCRA 308, 332 (2005).
apparent exercise of its police power. To successfully invoke the exercise of
159
police power as the rationale for the enactment of an ordinance and to free it
from the imputation of constitutional infirmity, two tests have been used by
the Court―the rational relationship test and the strict scrutiny test: VOL. 693, MARCH 12, 2013 159

We ourselves have often applied the rational basis test mainly in analysis of equal Fernando vs. St. Scholastica's College
protection challenges. Using the rational basis examination, laws or ordinances are
upheld if they rationally further a legitimate governmental interest. Under monument line and the building line of commercial and industrial
intermediate review, governmental interest is extensively examined and the
establishments and educational and religious institutions.
availability of less restrictive measures is considered. Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for achieving that interest.27
The respondents, thus, sought to prohibit the petitioners from requiring
them to (1) demolish their existing concrete wall, (2) build a fence (in excess
Even without going to a discussion of the strict scrutiny test, Ordinance of one meter) which must be 80% see-thru, and (3) build the said fence six
No. 192, series of 1994 must be struck down meters back in order to provide a parking area.
Setback Requirement
_______________
The Court first turns its attention to Section 5 which requires the five-
25 G.R. No. 122846, January 20, 2009, 576 SCRA 416. meter setback of the fence to provide for a parking area. The petitioners
26 Id., at p. 433. initially argued that the ownership of the parking area to be created would
27 Id., at p. 437. remain with the respondents as it would primarily be for the use of its
158
students and faculty, and that its use by the public on non-school days
would only be incidental. In their Reply, however, the petitioners admitted
that Section 5 was, in fact, invalid for being repugnant to the Constitution.31
 The Court agrees with the latter position. 161
The Court joins the CA in finding that the real intent of the setback
requirement was to make the parking space free for use by the public,
VOL. 693, MARCH 12, 2013 161
considering that it would no longer be for the exclusive use of the
respondents as it would also be available for use by the general public. Fernando vs. St. Scholastica's College
Section 9 of Article III of the 1987 Constitution, a provision on eminent
domain, provides that private property shall not be taken for public use
petitioners’ Reply. Considering that Ordinance No. 303 was enacted on
without just compensation.
December 20, 2000, the petitioners could very well have raised it in their
The petitioners cannot justify the setback by arguing that the ownership
defense before the RTC in 2002. The settled rule in this jurisdiction is that a
of the property will continue to remain with the respondents. It is a settled
party cannot change the legal theory of this case under which the
rule that neither the acquisition of title nor the total destruction of value is
controversy was heard and decided in the trial court. It should be the same
essential to taking. In fact, it is usually in cases where the title remains
theory under which the review on appeal is conducted. Points of law,
theories, issues, and arguments not adequately brought to the attention of
_______________ the lower court will not be ordinarily considered by a reviewing court,
31 Rollo, p. 184.
inasmuch as they cannot be raised for the first time on appeal. This will be
160 offensive to the basic rules of fair play, justice, and due process.35
Furthermore, the two ordinances have completely different purposes and
subjects. Ordinance No. 192 aims to regulate the construction of fences,
160 SUPREME COURT REPORTS ANNOTATED while Ordinance No. 303 is a zoning ordinance which classifies the city into
Fernando vs. St. Scholastica's College specific land uses. In fact, the five-meter setback required by Ordinance No.
303 does not even appear to be for the purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No. 303, “cure”
with the private owner that inquiry should be made to determine whether Section 5 of Ordinance No. 192.
the impairment of a property is merely regulated or amounts to a In any case, the clear subject of the petition for prohibition filed by the
compensable taking.32 The Court is of the view that the implementation of respondents is Ordinance No. 192 and, as such, the precise issue to be
the setback requirement would be tantamount to a taking of a total of determined is whether the petitioners can be prohibited from enforcing the
3,762.36 square meters of the respondents’ private property for public use said ordinance, and no other, against the respondents.
without just compensation, in contravention to the Constitution. 80% See-Thru Fence Requirement
Anent the objectives of prevention of concealment of unlawful acts and The petitioners argue that while Section 5 of Ordinance No. 192 may be
“un-neighborliness,” it is obvious that providing for a parking area has no invalid, Section 3.1 limiting the height of fences to one meter and requiring
logical connection to, and is not reasonably necessary for, the fences in excess of one meter to be at least 80% see-thru, should remain
accomplishment of these goals. valid and enforceable against the respondents.
Regarding the beautification purpose of the setback requirement, it has
long been settled that the State may not, under the guise of police power,
_______________
permanently divest owners of the beneficial use of their property solely to 35 Peña v. Tolentino, G.R. Nos. 155227-28, February 9, 2011, 642 SCRA 310, 324-325.
preserve or enhance the aesthetic appearance of the community.33  The
Court, thus, finds Section 5 to be unreasonable and oppressive as it will 162
substantially divest the respondents of the beneficial use of their property
solely for aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is
162 SUPREME COURT REPORTS ANNOTATED
invalid.
The petitioners, however, argue that the invalidity of Section 5 was Fernando vs. St. Scholastica's College
properly cured by Zoning Ordinance No. 303,34  Series of 2000, which
classified the respondents’ property to be within an institutional zone, under
The Court cannot accommodate the petitioner.
which a five-meter setback has been required.
For Section 3.1 to pass the rational relationship test, the petitioners must
The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no
show the reasonable relation between the purpose of the police power
bearing to the case at hand.
measure and the means employed for its accomplishment, for even under
The Court notes with displeasure that this argument was only raised for
the guise of protecting the public interest, personal rights and those
the first time on appeal in this Court in the
pertaining to private property will not be permitted to be arbitrarily
invaded.36
_______________ The principal purpose of Section 3.1 is “to discourage, suppress or prevent
32 Office of the Solicitor General v. Ayala Land, Incorporated, G.R. No. 177056, September
18, 2009, 600 SCRA 617, 644-645.
the concealment of prohibited or unlawful acts.” The ultimate goal of this
33 People v. Fajardo, 104 Phil. 443, 447-448 (1958). objective is clearly the prevention of crime to ensure public safety and
34 Rollo, pp. 190-310. security. The means employed by the petitioners, however, is not reasonably
necessary for the accomplishment of this purpose and is unduly oppressive 164
to private rights.
The petitioners have not adequately shown, and it does not appear
164 SUPREME COURT REPORTS ANNOTATED
obvious to this Court, that an 80% see-thru fence would provide better
protection and a higher level of security, or serve as a more satisfactory Fernando vs. St. Scholastica's College
criminal deterrent, than a tall solid concrete wall. It may even be argued
that such exposed premises could entice and tempt would-be criminals to
The enforcement of Section 3.1 would, therefore, result in an undue
the property, and that a see-thru fence would be easier to bypass and
interference with the respondents’ rights to property and privacy. Section
breach. It also appears that the respondents’ concrete wall has served as
3.1 of Ordinance No. 192 is, thus, also invalid and cannot be enforced
more than sufficient protection over the last 40 years.
against the respondents.
As to the beautification purpose of the assailed ordinance, as previously
No Retroactivity
discussed, the State may not, under the guise of police power, infringe on
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including
private rights solely for the sake of the aesthetic appearance of the
the regulation of educational institutions which was unintentionally
community. Similarly, the Court cannot perceive how a see-thru fence will
omitted, and giving said educational institutions five (5) years from the
foster “neighborliness” between members of a community.
passage of Ordinance No. 192 (and not Ordinance No. 217) to conform to its
provisions.40  The petitioners argued that the amendment could be
_______________ retroactively applied because the assailed ordinance is a curative statute
36 City of Manila v. Laguio, Jr., supra note 30, at pp. 312-313; p. 332.
which is retroactive in nature.
163 Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be
enforced against the respondents, it is no longer necessary to rule on the
issue of retroactivity. The Court shall, nevertheless, pass upon the issue for
VOL. 693, MARCH 12, 2013 163 the sake of clarity.
Fernando vs. St. Scholastica's College “Curative statutes are enacted to cure defects in a prior law or to validate
legal proceedings which would otherwise be void

Compelling the respondents to construct their fence in accordance with

_______________
the assailed ordinance is, thus, a clear encroachment on their right to when public safety or order requires otherwise as prescribed by law.
property, which necessarily includes their right to decide how best to protect x x x x x x x x x
their property. Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law
It also appears that requiring the exposure of their property via a see- shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
thru fence is violative of their right to privacy, considering that the impaired except in the interest of national security, public safety, or public health as may be
provided by law.
residence of the Benedictine nuns is also located within the property. The x x x x x x x x x
right to privacy has long been considered a fundamental right guaranteed Sec. 8. The right of the people, including those employed in the public and private sectors,
by the Constitution that must be protected from intrusion or constraint. The to form unions, associations, or societies for purposes not contrary to law shall not be abridged.
right to privacy is essentially the right to be let alone,37  as governmental x x x x x x x x x
powers should stop short of certain intrusions into the personal life of its Sec. 17. No person shall be compelled to be a witness against himself.
40 Rollo, pp. 78-79.
citizens.38  It is inherent in the concept of liberty, enshrined in the Bill of
Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 165
Constitution.39 

VOL. 693, MARCH 12, 2013 165

_______________
37 Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 396, citing  Morfe v. Fernando vs. St. Scholastica's College
Mutuc, 130 Phil. 415; 22 SCRA 424 (1968).
38 White Light Corporation v. City of Manila, supra note 19, at p. 441, citing City of Manila
v. Laguio, 495 Phil. 289; 455 SCRA 308 (2005). for want of conformity with certain legal requirements. They are intended to
39 Gamboa v. Chan, supra note 37, at pp. 397-398, citing Ople v. Torres, 354 Phil. 948; 293
supply defects, abridge superfluities and curb certain evils. They are
SCRA 141 (1998).
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, intended to enable persons to carry into effect that which they have
nor shall any person be denied the equal protection of the laws. designed or intended, but has failed of expected legal consequence by reason
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects of some statutory disability or irregularity in their own action. They make
against unreasonable searches and seizures of whatever nature and for any purpose shall be valid that which, before the enactment of the statute was invalid. Their
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to purpose is to give validity to acts done that would have been invalid under
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
existing laws, as if existing laws have been complied with. Curative
searched and the persons or things to be seized. statutes, therefore, by their very essence, are retroactive.”41
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except The petitioners argue that Ordinance No. 192 is a curative statute as it
upon lawful order of the court, or aims to correct or cure a defect in the National Building Code, namely, its
 g y
failure to provide for adequate guidelines for the construction of fences. They VOL. 693, MARCH 12, 2013 167
ultimately seek to remedy an insufficiency in the law. In aiming to cure this
insufficiency, the petitioners attempt to add lacking provisions to the Fernando vs. St. Scholastica's College
National Building Code. This is not what is contemplated by curative
statutes, which intend to correct irregularities or invalidity in the law. The     No pronouncement as to costs.
petitioners fail to point out any irregular or invalid provision. As such, the     SO ORDERED.
assailed ordinance cannot qualify as curative and retroactive in nature.
At any rate, there appears to be no insufficiency in the National Building Sereno (C.J.), Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta,
Code with respect to parking provisions in relation to the issue of the Bersamin, Del Castillo, Abad, Villarama, Jr., Reyes, Perlas-
respondents. Paragraph 1.16.1, Rule XIX of the Rules and Regulations of the Bernabe and Leonen, JJ., concur.
said code requires an educational institution to provide one parking slot for Perez, J., On official leave.
every ten classrooms. As found by the lower courts, the respondents provide
a total of 76 parking slots for their 80 classrooms and, thus, had more than Petition denied, judgment affirmed with modification.
sufficiently complied with the law.
Note.―An action for declaratory relief should be filed by a person
interested under a deed, a will, a contract or other written instrument, and
_______________
41 Narzoles v. National Labor Relations Commission, 395 Phil. 758, 764-765; 341 SCRA 533,
whose rights are affected by a statute, an executive order, a regulation or an
538 (2000). ordinance. (Malana vs. Tappa, 600 SCRA 189 [2009])

166 ――o0o――

166 SUPREME COURT REPORTS ANNOTATED

Fernando vs. St. Scholastica's College

Ordinance No. 192, as amended, is, therefore, not a curative statute

© Copyright 2020 Central Book Supply, Inc. All rights reserved.
which may be applied retroactively.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid
and cannot be enforced against the respondents. Nonetheless, “the general
rule is that where part of a statute is void as repugnant to the Constitution,
while another part is valid, the valid portion, if susceptible to being
separated from the invalid, may stand and be enforced.”42  Thus, the other
sections of the assailed ordinance remain valid and enforceable.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear that the
petitioners were acting in excess of their jurisdiction in enforcing Ordinance
No. 192 against the respondents. The CA was correct in affirming the
decision of the RTC in issuing the writ of prohibition. The petitioners must
permanently desist from enforcing Sections 3.1 and 5 of the assailed
ordinance on the respondents’ property in Marikina City.
WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of
the Regional Trial Court in SCA Case No. 2000-381-MK is AFFIRMED but
MODIFIED to read as follows:
WHEREFORE, the petition is GRANTED. The writ of prohibition
is hereby issued commanding the respondents to permanently desist
from enforcing or implementing  Sections 3.1 and 5  of Ordinance No.
192, Series of 1994, as amended, on the petitioners’ property in
question located in Marikina Heights, Marikina, Metro Manila.

_______________
42 PKSMMN v. Executive Secretary, G.R. Nos. 147036-37, April 10, 2012, 669 SCRA 49, 74.

167