MA. LOURDES C. FERNANDO vs. ST.
SCHOLASTICA’S COLLEGE
GR No. 161107 March 12, 2013
Facts:
1. Respondent is the owner of four (4) parcels of land measuring a total
of 56,306.80 square meters, located in Marikina Heights and covered
by Transfer Certificate Title (TCT) No. 91537. Located within the
property are SSA-Marikina, the residence of the sisters of the
Benedictine Order, the formation house of the novices, and the
retirement house for the elderly sisters.
2. The property is enclosed by a tall concrete perimeter fence built some
thirty (30) years ago. Abutting the fence along the West Drive are
buildings, facilities.
3. The petitioners are the officials of the City Government of Marikina.
On September 30, 1994, the Sangguniang Panlungsod of Marikina
City enacted Ordinance No. 192, entitled "Regulating the
Construction of Fences and Walls in the Municipality of Marikina."
4. In 1995 and 1998, Ordinance Nos. 217 and 200 were enacted to
amend Sections 7 and 5, respectively. Ordinance No. 192, as
amended, is reproduced hereunder, as follows:
Section 3. The standard height of fences or walls allowed under this
ordinance are as follows:
(1)
Fences on the front yard shall be no more than one (1) meter in height.
Fences in excess of one (1) meter shall be of an open fence type, at least
eighty percent (80%) see-thru
Section 5. In no case shall walls and fences be built within the five (5)
meter parking area allowance located between the front monument line and
the building line of commercial and industrial establishments and
educational and religious institutions.
Issue:
Whether or not Sections 3.1 and 5 of Ordinance No. 192 are valid
exercises of police power by the City Government of Marikina
Ruling:
1. The test of a valid ordinance... 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 consistent with public policy
(6) must not be unreasonable.
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,
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.
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
without just compensation.
Section 5 to be unreasonable and oppressive as it will substantially divest
the respondents of the beneficial use of their property solely for aesthetic
purposes. Accordingly, Section 5 of Ordinance No. 192 is... invalid.
The principal purpose of Section 3.1 is "to discourage, suppress or prevent
the concealment of prohibited or unlawful acts." The ultimate goal of this
objective is clearly the prevention of crime to ensure public safety and
security. The means employed by the petitioners, however, is not
reasonably necessary for the accomplishment of this purpose and is unduly
oppressive to private rights.
The petitioners have not adequately shown, and it does not appear 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 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
property, and that a see-thru fence would be easier to bypass and breach.
It also appears that the respondents' concrete wall has served as more
than sufficient protection over the last 40 years.
`
As to the beautification purpose of the assailed ordinance, as previously
discussed, 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. Similarly, the Court cannot perceive how a see-thru fence will
foster "neighborliness" between members of a community.
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 requiring the exposure of their property via a see- thru
fence is violative of their right 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 right
guaranteed by the Constitution that must be protected from intrusion or
constraint.
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. 1 92 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.
