Fernando vs. St. Scholastica College

G.R. No. 161107              
March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina City, JOSEPHINE C. EVANGELIST A, 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,



St. Scholastica College and St. Scholastica Academy are educational institutions organized under Philippine Law with a principal address at Malate, Manila, and Marikina respectively. St. Scholastica is the owner of 4 parcels of land with an area of 56, 306.80 square meters located in Marikina Heights with TCT No. 91537. Inside was the residence of the Sisters of the Benedictine, the order of formation of the house of Novices and the retirement for the elderly sisters. The property is enclosed by a tall concrete perimeter fence built around 30 years ago.

On September 30, 1994, Sangguniang Panlungsod of City of Marikina enacted Ordinance No. 192, entitled regulating the Construction of fences and walls in the City of Marikina.

On April 2, 2000, City government of Marikina sent a letter to the Respondents, ordering them to demolish and replace the fence of their Marikina property to make it 80% see-thru and at the same time, to move it by 6 meters to provide parking space for vehicles to park. Likewise, it is intended to deter criminality in the area, as well as to reduce the un-neighborlyness of having high walls.

On April 26, 2000, Respondents requested an extension of time to comply with the order, however, Mayor Fernando insisted on the enforcement of the Ordinance. Respondent then filed a Petition for Prohibition with an application for a Writ of Preliminary Injunction and Temporary Restraining Order (TRO) before RTC Marikina.

Respondents argued that the petitioners were acting in excess of jurisdiction in enforcing Ordinance No. 192 Series of 1994, asserting that such contravenes Section 1, Article III of the 1987 Constitution and would result in great losses. However, Petitioners contend that the ordinance was a valid exercise of police power.

RTC issued a WRIT OF PRELIMINARY INJUNCTION enjoining Petitioners from implementing the demolition of the fence at St. Scholastica Marikina. CA dismissed the Petitioner’s appeal and affirmed the RTC decision.

Whether the City Ordinance 192 Series of 1994 is invalid for violating the right to property without due process of law.


Yes. Police Power is the plenary power vested in the legislature to make statutes and ordinances to promote health, morals, peace, education, good order, safety, and general welfare of the people.

The test of a valid ordinance must not only be within the corporate powers of the LGU to enact and pass according to the procedure prescribed by law, but it must also conform to the following substantive requirements:

  • Must not contravene the Constitution or any statute;
  • Must not be unfair or oppressive;
  • Must not be partial or discriminatory;
  • Must not prohibit but may regulate trade;
  • Must be general and consistent with public policy;
  • Must not be unreasonable;

As to the beautification purpose of the assailed ordinance, the state may not under the guise of police power, infringe on private rights solely for the sake of the aesthetic appearance of the community.

Ordinance No. 217 amended Section 7 of Ordinance No. 192 Series of 1994 by including educational institutions which were intentionally omitted, and giving said educational institutions 5 years from the passage of such ordinance 192 and not Ordinance 217 to conform its provisions.

While, petitioners argued that the amendment could be retroactively applied because the assailed Ordinance is a curative statute which is retroactive in nature, they failed to point out any irregular or invalid provisions. As such the assailed ordinance cannot qualify as curative and retroactive in nature. As such, the Petitioners were acting in excess of their jurisdiction in enforcing Ordinance 192 against the Respondents.

Under the rational relationship test, an ordinance must pass the following requisites as discussed in Social Justice Society (SJS) v. Atienza, Jr.:

As with the State, local governments may be considered as having properly exercised their police power only if the following requisites are met:

  1. The interests of the public generally, as distinguished from those of a particular class, require its exercise
  2. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals

In short, there must be a concurrence of a lawful subject and lawful method.

The court is of the view that the implementation of the setback requirement would be tantamount to taking of Respondents private property for public use without just compensation in contravention to the Constitution.

Thus, ordinance 192, in this case, is not reasonably necessary to accomplish the City’s purpose, more importantly, it is oppressive of private rights, arbitrary intrusion, and a violation of due process clause.

Personal note:

Following the rational relationship test, it has been found that it is not rational or reasonable, although there is a valid purpose and means, there is the connection for the intended purpose of the ordinance but it fails under the empirical or statistical basis where it intends to deter criminality with having see-through fences. There is no scientific evidence that lowering the walls and replacing them with see-through fences would prevent crimes, nor there are any logical connection to, and is not reasonably necessary for, the accomplishment of their goals.

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