Fernando v. St.

Scholastica’s College (March 12 2013) sought to justify as a valid police

power measure a city ordinance which required, among others, all fences to be eighty percent “see
thru” and prohibited walls and fences to 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.”

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 have ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges. Using the rational basis examination, laws or ordinances are upheld if they
rationally further a legitimate governmental interest. Under intermediate 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 absence of less restrictive means for achieving that interest.

Under the rational relationship test, an ordinance must pass the following requisites as
discussed in 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 and (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.

White Light Corporation v. City of Manila (January 20, 2009). In terms of judicial review of
statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the
amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict
scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or
race as well as other fundamental rights as expansion from its earlier applications to equal protection.
The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental
rights such as suffrage, judicial access and interstate travel.
Rational basis standard for its review of economic legislation; and heightened or
immediate scrutiny for evaluating classifications based on gender and legitimacy.
The so-called overbreadth doctrine has likewise been applied when a statute needlessly
restrains even constitutionally guaranteed rights. Under the overbreadth doctrine, a proper
governmental purpose, constitutionally subject to state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.

Void-for-vagueness doctrine, which would be applicable when a penal statute “encroaches

upon the freedom of speech.” In Disini v. Executive Secretary (February 11, 2014), the Supreme Court
explained:

When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his dissent
in Romualdez v. COMELEC, “we must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate
only insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not
involving free speech.”
 In an “as applied” challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground-absence of due process, lack of fair notice, lack
of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one
from assailing the constitutionality of the statute based solely on the violation of the rights
of third persons not before the court. This rule is also known as the prohibition against
third-party standing.

But this rule admits of exception. A petitioner may for instance mount a “facial”
challenge to the constitutionality of a statute even if he claims no violation of his own rights
under the assailed statute where it involves free speech on grounds of overbreadth or
vagueness of the statute. The rationale for this exception is to counter the “chilling effect”
on protected speech. A person who does not know whether his speech constitutes a crime
under an overbroad or vague law may simply restrain himself from speaking in order to
avoid being charged of a crime. The overbroad or vague law thus chills into silence.

Imbong v. Ochoa (April 08, 2014). On the nature of a “facial challenge” against the validity
of a law, the Supreme Court has explained-
In the United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes concerning not only
protected speech, but also all other rights in the First Amendment. These include religious freedom,
freedom of the press, and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances. After all, the fundamental right to religious freedom, freedom
of the press and peaceful assembly are but component rights of the right to one’s freedom of
expression, as they are modes which one’s thoughts are externalized.