REMEDIAL LAW Provisional Remedies and Special Civil Actions Dean Jess Zachael B. Espejo, LL.M. RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS PROHIBITION Section 2. Petition for prohibition. ~ When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. DEFINITION A petition for prohibition is a special civil action that seeks a judgment ordering the respondent to desist from continuing with the commission of an act perceived to be illegal (LAND BANK OF THE PHILIPPINES versus ATLANTA INDUSTRIES, INC., G.R. No. 193796, July 02, 2014). Prohibition is defined as an extraordinary remedy available to compel any tribunal, corporation, board, or person exercising judicial or ministerial functions, to desist from further proceeding in an action or matter when the proceedings in such tribunal, corporation, board or person are without or in excess of jurisdiction or with grave abuse of discretion and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. (DELFIN versus COURT OF APPEALS, G.R. No. L-21022, February 27, 1965). CHARACTERISTICS OF PROHIBITION 1, It is an extraordinary remedy that can only be availed of under extraordinary and exigent circumstances. If there is no exigency which would justify a disregard for the time-honored rule that prohibition is granted only where no other remedy is available which is sufficient to afford redress (III MORAN, Comments on the Rules of Court, p. 174), the writ will not be issued (see SOLIDUM, ET AL. versus HERNANDEZ, G.R. No. L-16570, February 28, 1963) Provisional Remedies and Special Civil Actions (JZE) Rule 65 - Prohibition and Mandamus - Page 1 of 202. Prohibition, like certiorari and mandamus, is a prerogative writ of equity and its granting is ordinarily within the sound discretion of the Courts to be exercised on equitable principles and said writ should only be issued when the right to the relief is clear (SPOUSES CAVILES versus COURT OF APPEALS, G.R. No. 126857, September 18, 2002). 3. Prohibition is a preventative remedy issuing to restrain future action, and is directed to the court itself (ROY III versus HERBOSA, G.R. No. 207246, November 22, 2016). Prohibition, being a preventive or injunctive remedy, will not lie for acts already accomplished (see DYNAMIC BUILDERS & CONSTRUCTION CO. versus PRESBITERO, G.R. No. 174202, April 7, 2015). 4, Prohibition is a remedy against proceedings that are without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy adequate remedy in the ordinary course of law. Where the petition does not even impute lack of jurisdiction or grave abuse of discretion, resort to prohibition would not prosper (see MARTELINO versus NATIONAL HOME MORTGAGE FINANCE CORPORATION, G.R. No. 160208, June 30, 2008). 5. Similar to certiorari, it is not a mode of appeal. It is also an original and independent action and not a part or a continuation of the trial which resulted in the rendition of the judgment complained of. Prohibition is an exercise of the supervisory jurisdiction of a superior court over an inferior court, its function being limited to keeping the inferior court within the bounds of its jurisdiction. FUNCTIONS OF PROHIBITION In SOUTHERN LUZON DRUG CORPORATION versus DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT, G.R. No. 199669, April 25, 2017, the Supreme Court had the occasion to elaborate on the various functions of prohibition. The Supreme Court stated in this case that, generally, the office of prohibition is to prevent the unlawful and oppressive exercise of authority and is directed against proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy, and adequate remedy in the ordinary course of law. It is the remedy to prevent inferior courts, corporations, boards, or persons from usurping or exercising a jurisdiction or power with which they have not heen vested by law. ‘The Supreme Court noted that this is, however, not the lone office of an aetion for prohibition. In DIAZ, ET AL. versus SECRETARY OF FINANCE, ET AL., G.R. No. 193007, July 19, 2011, prohibition was also recognized as a proper remedy to prohibit or nullify acts of executive officials that amount to usurpation of legislative authority. In a number of jurisprudence, prohibition was allowed as a proper action to assail the constitutionality of a law or prohibit its implementation, InSOCIAL WEATHER STATIONS, INC. versus COMMISSION ON ELECTIONS, G.R. No. 147571, May 5, 2001, therein petitioner filed a petition for prohibition to assail the constitutionality of Section 5.4 of R.A. No. 9006, or the "Fair Elections Act,” which prohibited the publication of surveys within 15 days before an election Provisional Remedies and Special Civil Actions (JZE) Rule 65 - Prohibition and Mandamus - Page 2 of 20for national candidates, and seven days for local candidates. Included in the petition is a prayer to prohibit the Commission on Elections from enforcing the said provision. The Supreme Court granted the Petition and struck down the assailed provision for being unconstitutional. The Supreme Court further noted that prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations (see MUTUC versus COMMISSION ON ELECTIONS, G.R. No. L-32717 November 26, 1970 and GONZALEZ versus COMMISSION ON ELECTIONS, G.R. No. L-27833, April 18, 1969). In SOCIAL JUSTICE SOCIETY (SJS) versus DANGEROUS DRUGS BOARD, ET AL.,G.R. No. 157870, November 3, 2008, therein petitioner assailed the constitutionality of paragraphs (c ), (4), (f) and (g) of Section 36 of R.A. No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," on the ground that they constitute undue delegation of legislative power for granting unbridled discretion to schools and private employers in determining the manner of drug ‘testing of their employees, and that the law constitutes a violation of the right against unreasonable searches and seizures. It also sought to enjoin the Dangerous Drugs Board and the Philippine Drug Enforcement Agency from enforcing the challenged provision. The Court partially granted the petition by declaring Section 36(f) and (g) of R.A. No. 9165 unconstitutional, and permanently enjoined the concerned agencies from implementing them. In BELGICA, ET AL. versus EXECUTIVE SECRETARY, G.R. No. 208566, November 19, 2013, consolidated petitions for prohibition questioning the constitutionality of the Priority Development Assistance Fund were deliberated upon by the Supreme Court which ultimately granted the same. DECLARATORY RELIEF AND CERTIORARI/PROHIBITION DISTINGUISHED With the Supreme Court's similar conclusions in Southern Luzon Drug Corporation and SPARK that certiorari and prohibition are appropriate remedies to challenge the constitutionality of various laws, rules, regulations and ordinances, it can therefore be said that petitions for certiorari and prohibition perform the same function as a petition for declaratory relief under Rule 63. With this commonality established, we now proceed to distinguish between the these special civil actions, as follows: POT IN PAN ELIEF ‘As to which court or ‘The Supreme Court, Court of | A petition for declaratory courts have jurisdiction | Appeals and Regional Trial | relief falls under the exclusive Court have concurrent | original jurisdiction of the original jurisdiction over | Regional Trial Court petitions for certiorari and prohibition. As to relief prayed for |The relief sought in a|The relief prayed for in a petition for certiorari under | petition for declaratory relief Rule 65 is that judgment be | is that the court determines a rendered annulling or | question of construction or modifying the proceedings of | validity arising, and_for_a Provisional Remedies and Special Civil Actions (JZE) Rule 65 - Prohibition and Mandamus - Page 3 of 20the tribunal, board or officer [ declaration of his rights or concerned. duties, under a deed, will, contract or other written ‘The relief prayed for by the | instrument, executive order petitioner in a petition for | or resolution. prohibition is that judgment be rendered ordering the respondent to desist from continuing with —the commission of an act perceived to be illegal. ‘As to purpose ‘The purpose of certiorariis |The purpose of declaratory the correction of errors of | relief is to secure an jurisdiction, not errors of | authoritative statement of judgment. the rights and obligations of the parties under a contract In the main, the purpose of | or a statute for their guidance prohibition is to compel any|in the enforcement or tribunal, corporation, board, | compliance with the same. or person exercising judicial or ministerial functions, to desist from further proceedings. ‘As to allegations ‘The petition must allege in |The petition must show an required both petitions that the | active antagonistic assertion proceedings are without or in | of legal right on one side and excess of jurisdiction, or with | a denial thereof on the other grave abuse of discretion | concerning a real, and not a amounting to lack or excess | mere theoretical question or of jurisdiction, and there is | issue (JUMAMIL versus no appeal or any other plain, | CAFE, G.R. No. 144570, speedy, and —_ adequate | September 21, 2005). remedy in the ordinary | course of law. As to parties In both certiorari and | All persons who have or claim prohibition, the petitioner | any interest which would be shall join, as private | affected by the declaration respondent or respondents | shall be made parties. with the public respondent or respondents, the person or persons interested in sustaining the proceedings. As to conversion into or | A petition for declaratory | Tfbefore the final termination treatment as another _ | relief may be treated as one | of the case, a breach or action for prohibition (DE LA | violation should take place, LLANA versus ALBA, G.R. | the action for declaratory No. 1-57883 March 12,| relief may thereupon be 1982). If filed within the 15- | converted into_an_ordinary Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 4 of 20day period provided under [ action, and the parties shall Rule 45, the court may treat | be allowed to file such ‘a petition for certiorari as | pleadings as may be petition for review under | necessary or proper, Rule 45 in order to accord substantial justice to the parties (NAVA _ versus PALATTAO, G.R. No. 160211, August 28, 2006). ‘As to availability of For both certiorari and|Writ of execution is not writ of execution prohibition, an execution | available as a general rule. may issue for any damages or costs awarded — in accordance with section 1 of Rule 39. REQUISITES OF PROHIBITION MONTES versus COURT OF APPEALS G.R. No. 143797, May 4, 2006 For a party to be entitled to a writ of prohibition, he must establish the following requisites: (@) It must be directed against a tribunal, corporation, board or person exercising functions, judicial or ministerial; (0) The tribunal, corporation, board or person has acted without or in excess of its jurisdiction, or with grave abuse of discretion; and (©) There is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment or rule, order or resolution of the lower court or agency. GRAVE ABUSE OF DISCRETION AS A GROUND FOR PROHIBITION SOLIDUM, ET AL. versus HERNANDEZ G.R. No, L-16570, February 28, 1963 Thus, We have always adhered to the standard that for grave abuse of discretion to prosper as a ground for prohibition, it must be first demonstrated that there was such a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction (Abad Santos versus Province of Tarlac, 67 Phil. 480; Bibby de Padilla versus Horrilleno, 60 Phil. 511; Alafriz versus Nable, 72 Phil. 278). Similarly, We have ruled that there is "excess of jurisdiction” where the court has jurisdiction but has transcended the same or acted without ‘any statutory authority (Leung Ben versus O'Brien, 38 Phil. 182; Salvador Campos y Cia versus Del Rosario, 41 Phil. 45). In other words, prohibition ought be issued only after the reviewing tribunal shall have convinced itself that the lower court has exercised its power "in Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 5 of 20an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion or to a virtual refusal to perform the duty enjoined or to act in contemplation of law (Tavera-Luna, Inc. versus Nable, 67 Phil. 340), PROHIBITION AND INJUNCTION DISTINGUISHED (OCT As to nature of the Prohibition is always the | Injunction may be the main action main action action or just a provisional remedy. As to whom directed It is directed against a It is usually directed against tribunal, board or officer | a party to the action. exercising judicial, quasi- judicial or ministerial functions, ‘As to question involved |The petition involves | The petition does not involve questions of jurisdiction. questions of jurisdiction PROHIBITION AND PRELIMINARY PROHIBITORY INJUNCTION DISTINGUISHED PRELIMINARY Poors uNCOMs PaO ELD INJUNCTION As to nature Prohibition is a special civil | Preliminary prohibitory action. injunction is a provisional remedy. As to how commenced | Prohibition is commenced by |As a mere provisional the filing of a petition remedy, it is commenced as a prayer for interim relief by the filing of the complaint or other initiatory pleading or petition. As to what is restrained | Prohibition restrains | It restrains a party from usurpation of jurisdiction. | performing a particular act or | acts. As to whom directed Prohibition is directed | Preliminary prohibitory against a tribunal, board or | injunction is usually directed officer exercising judicial, | against a party to the main quasi-judicial or ministerial | action. functions. As to ultimate purpose | Ultimate purpose is to| Ultimate purpose is the prevent or _restrain| preservation of the status proceedings. quo. RELIEF SOUGHT IN A PETITION FOR PROHIBITION Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 6 of 20Ultimately, the relief sought in a petition for prohibition under Rule 65 is that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. Precisely because the tribunal, board or officer acted without, or beyond its or his, jurisdiction, further proceedings must be restrained. MANDAMUS Section 3. Petition for mandamus. - When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. DEFINITION Mandamus, which is Latin for “we command,” is defined as a writ commanding a tribunal, corporation, board or person to do the act required to be done when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and enjoyment of a right or office or which such other is entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law (CITY OF DAVAO versus OLANOLAN, G.R. No. 181149, April 17, 2017). CHARACTERISTICS OF MANDAMUS 1. It isa peremptory writ. As such, the writ, when issued, is a legally binding command to demand that a person or entity act in a particular manner. With particular reference to Section 3, the writ of mandamus commands “a tribunal, corporation, board or person to do the act required to be done.” 2, It is an extraordinary remedy that is issued only in extreme necessity, and the ordinary course of procedure is powerless to afford an adequate and speedy relief to one who has a clear legal right to the performance of the act to be compelled (SPECIAL PEOPLE, INC. FOUNDATION versus CANDA, ET AL., G.R. No. 160932, January 14, 2013). Corollarily, as an extraordinary remedy, mandamus is resorted to for the purpose of securing judicial action, not for determining in advance what that action shall be (SANSON versus COURT OF FIRST INSTANCE, G.R. No. 45086 July 20, 1936) Provisional Remedies and Special Civil Actions (JZE) Rule 65 - Prohibition and Mandamus - Page 7 of 203. Mandamus, like certiorari and prohibition, is a prerogative writ of equity and its granting is ordinarily within the sound discretion of the Courts to be exercised on equitable principles and said writ should only be issued when the right to the relief is clear (SPOUSES CAVILES versus COURT OF APPEALS, G.R. No. 126857, September 18, 2002). 4, Mandamus does not lie to enforce the performance of a discretionary function (CITY OF DAVAO versus OLANOLAN, G.R. No. 181149, April 17, 2017). 5. Mandamus is ordinarily a remedy for official inaction, and in a large number of decisions it is either held or said that mandamus is not the proper remedy to compel the undoing of acts already done or the correction of wrongs already perpetrated, and that this is so even though the action taken was clearly illegal (38 C. J., 592; GUANIO versus FERNANDEZ, 55 Phil., 814). 6, Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the persons of a public duty most especially when mandated by the Constitution (LAMBINO versus COMMISSION ON ELECTIONS, G.R. No. 174153, October 25, 2006). 7. Although classified as a legal remedy, mandamus is equitable in its nature and its issuance is generally controlled by equitable principles (UY KIAO ENG versus LEE, G.R. No. 176831, January 15, 2010), 8, Mandamus is a compulsory not a revisory writ. It is a rule of general application that mandamus will not be granted for the purpose of review, that the writ is not available as a substitute for an appeal or writ of error, or certiorari. Mandamus is not a writ to correct errors, but that its province is rather to prevent a failure of justice from delay or refusal to act (SANSON versus COURT OF FIRST INSTANCE, G.R. No. 45086 July 20, 1936). FUNCTION OF MANDAMUS ‘The principal function of the writ of mandamus is to command and to expedite, not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to secure a legal right but to implement that which is already established (BPI FAMILY SAVINGS BANK, INC. versus MANIKAN, G.R. No. 148789, January 16, 2003). ‘The main objective of mandamus is to compel the performance, when refused, of a ministerial duty (HENARES, JR. versus LAND TRANSPORTATION FRANCHISING AND REGULATORY BOARD, G.R. NO. 158290, October 23, 2006). Generally, it does not lie to enforce the performance of a discretionary function (CITY OF DAVAO versus OLANOLAN, G.R. No. 181149, April 17, 2017). MINISTERIAL AND DISCRETIONARY DUTIES Provisional Remedies and Special Civil Actions (JZE) Rule 65 Prohibition and Mandamus - Page 8 of 20A purely ministerial act or duty is one that an officer or tribunal performs in a given state of facts, in a proscribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of its own judgment upon the propriety or impropriety of the aet done. The duty is ministerial only when its discharge requires neither the exercise of official discretion or judgment (PHILIPPINE COCONUT AUTHORITY versus PRIMEX COCO PRODUCTS, INC., G.R. No. 163088, July 20, 2006). On the other hand, a discretionary duty is one that allows a person to exercise judgment and choose to perform or not to perform (METROPOLITAN MANILA DEVELOPMENT AUTHORITY versus CONCERNED RESIDENTS OF MANILA BAY, G.R. Nos. 171947-48, December 18, 2008). The duty is discretionary if the law imposes a duty upon a public officer and gives him the right to decide when the duty shall be performed (KALIPUNAN NG DAMAY ANG MAHIHIRAP, INC. versus ROBREDO, G.R. No. 200903, July 22, 2014). Thus, what primarily differentiates these two types of duties is the exercise of judgment on the part of the tribunal or officer tasked. Another point of distinction between a ministerial duty and a diseretionary duty is whether the same can be delegated. The Supreme Court in LUSPO versus PEOPLE OF THE PHILIPPINES, G.R. No. 188487, February 14, 2011, explained that: Public officers exercise discretionary and/or ministerial duties. A duty is discretionary if the officer is allowed to determine how and when it is to be performed and to decide this matter one way or the other and be right either way. It is not susceptible to delegation because it is imposed by law as such, and the publie officer is expected to discharge it directly and not through the intervening mind of another. On the other hand, a ministerial duty is one that requires neither the exercise of official diseretion nor judgment, It connotes an act wherein nothing is left to the discretion of the person executing it. It is practically a mechanical act; hence, what can be done by the delegate may be sub-delegated by him to others. ‘Thus, a mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is delegated police power hence, discretionary in nature. Section 444(b)(3)(iv) of the Local Government Code of 1991 is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus (RIMANDO versus NAGUILIAN EMISSION TESTING CENTER, INC., G.R. No. 198860, July 23, 2012, citing ROBLE ARRASTRE, INC. versus VILLAFLOR, G.R. No. 128509, August 22, 2006). So also, the privilege of operating a market stall under license is always subject to the police power of the city government and may be refused or granted for reasons of public policy and sound public administration. Being a delegated police power falling under the general welfare clause of Sec. 16 of the Local Government Code, the grant or revocation of the privilege is, therefore, discretionary in nature (LAYGO versus MUNICIPAL MAYOR OF SOLANO, NUEVA VIZCAYA, G.R. No. 188448, January 11, 2017). REQUISITES OF MANDAMUS Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 9 of 20DE CASTRO versus JUDICIAL AND BAR COUNCIL G.R. No. 191002, March 17, 2010 For mandamus to lie, the following requisites must be complied with: (a) The plaintiff has a clear legal right to the act demanded; (b) It must be the duty of the defendant to perform the act, because it is mandated by law; (©) The defendant unlawfully neglects the performance of the duty enjoined by law; (d) The act to be performed is ministerial, not discretionary; and (e) There is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. ‘THE PLAINTIFF HAS A CLEAR LEGAL RIGHT AND DUTY OF THE DEFENDANT TO PERFORM THE ACT It is essential to the issuance of a writ of mandamus that petitioner should have a clear legal right to the thing demanded and it must be the imperative duty of the respondent, to perform the act required. Mandamus never issues in doubtful cases. While it may not be necessary that the ministerial duty be absolutely expressed, it must however, be clear. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed (PADILLA versus CONGRESS OF THE PHILIPPINES, G.R. No. 231671, July 25, 2017). The writ of mandamus can be awarded only when the petitioners’ legal right to the performance of the particular act which is sought to be compelled is clear and complete. Under Rule 65 of the Rules of Court, a clear legal right is a right which is indubitably granted by law or is inferable as a matter of law. If the right is clear and the case is meritorious, objections raising merely technical questions will be disregarded. But where the right sought to be enforced is in substantial doubt or dispute, mandamus cannot issue (LABURADA versus LAND REGISTRATION AUTHORITY, G.R. No. 101387, March 11, 1998) In order that a writ of mandamus may aptly issue, it is essential that, on the one hand, the person petitioning for it has a clear legal right to the claim that is sought and that, on the other hand, the respondent has an imperative duty to perform that which is demanded of him. Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial doubt exists. Unless the right to the relief sought is unclouded, mandamus will not issue (established (BPI FAMILY SAVINGS BANK, INC. versus MANIKAN, G.R. No. 148789, January 16, 2003) A party's lack of clear legal right to the performance of the legal act to be compelled justifies the dismissal of his mandamus petition (CITY OF DAVAO versus OLANOLAN, G.R. No. 181149, April 17, 2017). The petitioner bears the burden to show that there is such a clear legal right to the performance of the act, and a corresponding compelling duty on the part of the respondent to Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 10 of 20perform the act (SPECIAL PEOPLE, INC. FOUNDATION versus CANDA, G.R. No. 160932, January 14, 2013). DEFENDANT UNLAWFULLY NEGLECTS ‘THE PERFORMANCE OF THE DUTY. In order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty. Thus in DE CASTRO versus JUDICIAL AND BAR COUNCIL, G.R. No. 191002, March 17, 2010, the Supreme Court declared that for mandamus to lie against the JBC, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President, Concerning unwarranted delays in the conduct of the arraignment, the Supreme Court also held that, the accused has indeed the right to demand, through a writ of mandamus, expeditious action from all officials tasked with the administration of justice. Thus, he may not only demand that his arraignment be held but, ultimately, that the information against him be dismissed on the ground of the violation of his right to speedy trial (LUMANLAW versus PERALTA JR., G.R. No. 164953, February 13, 2006). BAR QUESTION 2007 Roldan was charged with illegal possession of shabu before the RTC. Although bail was allowable under his indictment, he could not afford to post bail, and so he remained in detention at the City Jail. For various reasons, the arraignment of Roldan was postponed 19 times over a period of 2 years. Twice during that period, Roldan’s counsel filed motions to dismiss, invoking the right of the accused to a speedy trial. Both motions were denied by the RTC. Can Roldan file a petition for mandamus? Reason briefly. SUGGESTED ANSWER: Yes. Roldan can file a petition for mandamus, invoking the right to a speedy trial. Mandamus is a proper recourse for citizens who seek to enforce a public right and to compel, the performance of a public duty, most especially when the public right involved is mandated by the Constitution. Besides, it has long been established in this jurisdiction that the writ of mandamus is available to the accused to compel a dismissal of the case. Here, the arraignment of Roldan was postponed 19 times over a period of 2 years. Hence, the petition for mandamus is proper in this case (LUMANLAW versus PERALTA JR., G.R. No. 164953, February 13, 2006) THE ACT TO BE PERFORMED IS MINISTERIAL As previously stated, the main objective of mandamus is to compel the performance, when refused, of a ministerial duty. It does not ordinarily lie to compel the performance of a discretionary act or duty. The power of the court in mandamus petitions does not extend to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either. No rule of law is better established than the one that provides that mandamus will not issue to control the discretion of an officer or Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 11 of 20a court when honestly exercised and when such power and authority is not abused (DE CASTRO versus SALAS, G.R. No. 12096, August 22, 1916, 034 Phil 818). It is the poliey of the courts not to interfere with the discretionary executive acts of the executive branch unless there is a clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction. Mandamus does not lie against the legislative and executive branches or their members acting in the exercise of their official discretionary functions. This emanates from the respect accorded by the judiciary to said branches as co-equal entities under the principle of separation of powers (KNIGHTS OF RIZAL versus DMCI HOMES, INC., G.R. No. 213948, April 25, 2017). However, in exceptional cases, the Supreme Court has granted a prayer for mandamus to compel action in matters involving judgment and diseretion, only "to act, but not to act one way or the other," and only in cases where (1) there has been a clear showing, of grave abuse of discretion, (2) manifest injustice, or (3) palpable excess of authority (KNIGHTS OF RIZAL versus DMCI HOMES, INC., G.R. No. 213948, April 25, 2017) Whenever a duty is imposed upon a public official and an unnecessary and unreasonable delay in the exercise of such duty occurs, if it is clear duty imposed by law, the courts will intervene by the extraordinary legal remedy of mandamus to compel action. If the duty is ministerial, the courts will require specific action. If the duty is purely discretionary, the courts by mandamus will require action only. For example, if an inferior eourt, publie official, or board should, for an unreasonable length of time, fail to decide a particular question to the great detriment of all the parties concerned, or a court should refuse to take jurisdiction of a cause when the law clearly gave it jurisdiction, mandamus will issue, in the first case to require a decision, and in the second to require that jurisdiction be taken of the cause (LAMB versus PHIPPS, G.R. No. L-7806, July 12, 1912) AMPATUAN, JR. vs. DE LIMA G.R. No, 197291, April 3, 2013 In matters involving the exercise of judgment and discretion, mandamus cannot be used to direct the manner or the particular way the judgment and discretion are to be exercised. Consequently, the Secretary of Justice may be compelled by writ of mandamus to act on a letter-request or a motion to include a person in the information, but may not be compelled by writ of mandamus to act in acertain way, ie., to grant or deny such letter-request or motion. Mandamus may only be resorted to in order to compel respondent tribunal, corporation, board, officer or person to take action, but it cannot be used to direct the manner or the particular way discretion is to be exercised, or to compel the retraction or reversal of an action already taken in the exercise of judgment or discretion. It is established that a writ of mandamus may be issued to control the exercise of discretion when, in the performance of duty, there is undue delay that can be characterized as a grave abuse of diseretion resulting in manifest injustice. Vexatious, oppressive, unjustified and capricious delays in the arraignment violates the constitutional right to speedy trial and speedy case disposition, particularly when the accused is detained. Under Provisional Remedies and Special Civil Actions (JZE) Rule 65 — Prohibition and Mandamus - Page 12 of 20such circumstances, mandamus is a proper remedy for relief from prolonged detention. This Court safeguards liberty and will therefore always uphold the basic constitutional rights of the people, especially the weak and the marginalized (LUMANLAW versus PERALTA JR., G.R. No. 164953, February 13, 2006) NO APPEAL OR ANY OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW ‘There is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment or rule, order or resolution of the lower court or agency. Thus, if an appeal or other remedy such as a motion for reconsideration is available, the writ of mandamus will not be issued PROBATE AS ADEQUATE REMEDY UY KIAO ENG versus LEE G.R. No. 176831, January 15, 2010 FACTS: .g that his father passed away on June 22, 1992 in Manila and left a holographic will, which is now in the custody of Uy Kiao Eng, his mother, Nixon Lee filed a petition for mandamus with damages before the Regional Trial Court to compel Uy Kiao Eng to produce the will so that probate proceedings for the allowance thereof could be instituted. Allegedly, Lee had already requested his mother to settle and liquidate the patriarch's estate and to deliver to the legal heirs their respective inheritance, but she refused to do so without any justifiable reason, In her answer with counterclaim, Uy Kiao Eng denied that she was in custody of the original holographic will and that she knew of its whereabouts. She, moreover, asserted that photocopies of the will were given to respondent and to his siblings. Uy Kiao Eng filed a demurrer to evidence The RTC after hearing the case and resolving a subsequent demurrer to evidence, contending that her son failed to prove that she had in her custody the original holographic will. She asserted that the pieces of documentary evidence presented, aside from being hearsay, were all immaterial and irrelevant to the issue involved in the petition, They did not prove or disprove that she unlawfully neglected the performance of an act which the law specifically enjoined as a duty resulting from an office, trust or station, for the court to issue the writ of mandamus, The RTC, at first, denied the demurrer to evidence, however, it granted the same on Uy Kiao Eng 's motion for reconsideration. Aggrieved, Lee sought review with the Court of Appeals which initially denied the appeal for lack of merit. Lee moved for reconsideration which the appellate court granted, thereby setting aside its earlier ruling, and issued the writ of mandamus, and ordered the production of the will and the payment of attorney's fees. ISSUE: — Whether the issuance of the writ of mandamus is proper. Provisional Remedies and Special Civil Actions (JZE) Rule 65 — Prohibition and Mandamus - Page 13 of 20RULING: NO. Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law. This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance of duties in which the public has no interest. The writ of mandamus, however, will not issue to compel an official to do anything which is not his duty to do or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by law. Nor will mandamus issue to enforce aright which is in substantial dispute or as to which a substantial doubt exists, although objection raising a mere technical question will be disregarded if the right is clear and the case is meritorious. Recognized further in this jurisdiction is the principle that mandamus cannot be used to enforce contractual obligations. Generally, mandamus will not lie to enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is imposed. The writ is not appropriate to enforce a private right against an individual, The writ of mandamus lies to enforce the execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in cases relating to the public and to the government; hence, it is called a prerogative writ. In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved here - the production of the original holographic will - is in the nature of a public or a private duty, rules that the remedy of mandamus cannot be availed of by respondent Lee because there lies another plain, speedy and adequate remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of the will and that he seeks the production of the original for purposes of probate. The Rules of Court, however, does not prevent him from instituting probate proceedings for the allowance of the will whether the same is in his possession or not. GROUNDS FOR MANDAMUS Mandamus will not lie in the absence of any of the following grounds: (a) That the court, officer, board, or person against whom the action is taken unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from office, trust, or station; or (b) That such court, officer, board, or person has unlawfully excluded petitioner/relator from the use and enjoyment of a right or office to which he is entitled; neither will the extraordinary remedy of mandamus lie to compel the performance of duties that are discretionary in nature (LAYGO versus MUNICIPAL MAYOR OF SOLANO, NUEVA VIZCAYA, G.R. No. 188448, January 11, 2017). SPECIAL PEOPLE, INC. FOUNDATION versus CANDA Provisional Remedies and Special Civil Actions (JZE) Rule 65 — Prohibition and Mandamus - Page 14 of 20G.R. No. 160932, January 14, 2013 It is not amiss for us to observe, therefore, that the petitioner grossly misunderstood the nature of the remedy of mandamus. To avoid similar misunderstanding of the remedy hereafter, a short exposition on the nature and office of the remedy is now appropriate. The writ of mandamus is of very ancient and obscure origin. It is believed that the writ was originally part of the class of writs or mandates issued by the English sovereign to direct his subjects to perform a particular act or duty. The earliest writs were in the form of letters missive, and were mere personal commands. The command was a law in itself, from which there was no appeal. The writ of mandamus was not only declaratory of a duty under an existing law, but was a law in itself that imposed the duty, the performance of which it commanded. The King was considered as the fountain and source of justice, and when the law did not afford a remedy by the regular forms of proceedings, the prerogative powers of the sovereign were invoked in aid of the ordinary powers of the courts. A judicial writ of mandamus, issued in the King’s name out of the court of King’s Bench that had a general supervisory power over all inferior jurisdictions and officers, gradually supplanted the old personal command of the sovereign. The court of King's Bench, acting as the general guardian of public rights and in the exercise of its authority to grant the writ, rendered the writ of mandamus the suppletory means of substantial justice in every case where there was no other specific legal remedy for a legal right, and ensured that all official duties were fulfilled whenever the subject-matter was properly within its control. Early on, the writ of mandamus was particularly used to compel public authorities to return the petitioners to public offices from which they had been unlawfully removed. Mandamus was, therefore, originally a purely prerogative writ emanating from the King himself, superintending the police and preserving the peace within the realm. It was allowed only in cases affecting the sovereign, or the interest of the public at large. The writ of mandamus grew out of the necessity to compel the inferior courts to exercise judicial and ministerial powers invested in them by restraining their excesses, preventing their negligence and restraining their denial of justice. Over time, the writ of mandamus has been stripped of its highly prerogative features and has been assimilated to the nature of an ordinary remedy. Nonetheless, the writ has remained to be an extraordinary remedy in the sense that it is only issued in extraordinary cases and where the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to a party aggrieved, and where without its aid there would be a failure of justice. The writ of mandamus has also retained an important feature that sets it apart from the other remedial writs, ie., that it is used merely to compel action and to coerce the performance of a pre-existing duty. In fact, a doctrine well-embedded in our jurisprudence is that mandamus will issue only when the petitioner has a clear legal right to the performance of the act sought to be compelled and the respondent has an imperative duty to perform the same. The petitioner bears the burden to show that there is such a clear legal right to the performance of the act, and a corresponding compelling duty on the part of the respondent to perform the act. Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 15 of 20A key principle to be observed in dealing with petitions for mandamus is that such extraordinary remedy lies to compel the performance of duties that are purely ministerial in nature, not those that are discretionary. A purely ministerial act or duty is one that an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of its own judgment upon the propriety or impropriety of the act done. The duty is ministerial only when its discharge requires neither the exercise of official discretion or judgment. EXAMPLES OF ACTS THAT CAN BE COMPELLED BY MANDAMUS. ‘Asa general rule, the right of a stranger to intervene in an action as an active litigant is dependent upon the discretion of the court, but it is an abuse of judicial discretion to refuse to allow the intervention when the intervenor shows an interest in the subject matter of the litigation of such character that intervention is necessary for the reasonable protection thereof. While mandamus would not ordinarily lie to control or review the exercise of a discretionary power, the abuse of judicial discretion allows the grant of the writ (OTTO GMUR, INC. versus REVILLA, 55 Phil. 627), Once a judgment becomes final, it is basic that the prevailing party is entitled as a matter of right to a writ of execution the issuance of which is the trial court's ministerial duty, compellable by mandamus (GREATER METROPOLITAN MANILA SOLID WASTE MANAGEMENT COMMITTEE versus JANCOM ENVIRONMENTAL CORPORATION, G.R. No. 163663, June 30, 2006). Where all the municipal ordinance requires of the applicant for a building permit is to state in his application the name of the owner, the location of the building, the kind of materials to be used, and the floor area thereof, and said requirement appears to have been complied with by petitioner-applicant, it becomes the ministerial duty of the respondent municipal mayor to issue the necessary building permit to said petitioner-applicant. Since there is nothing in the municipal ordinance which grants the respondent mayor the discretion to refuse the issuance of the building permit after the petitioner-applicant has complied with the requisites mentioned therein, the respondent mayor's failure to issue the building permit, in question entitles the petitioner to the writ of mandamus prayed for (SYMACO versus AQUINO, G.R. No. L-14535, January 30, 1960). In ANGCHANGCO versus OMBUDSMAN, G.R. No. 122728. February 13, 1997, the Supreme Court granted a petition for mandamus to compel the Office of the Ombudsman to resolve the criminal complaints against the respondent after more than six (6) years of inaction and consequently dismissed the criminal complaints (see also CAGANG versus SANDIGANBAYAN, G.R. No. 206438, July 31, 2018). Mandamus is a proper remedy to compel the issuance of a writ of possession. The purpose of mandamus is to compel the performance of a ministerial duty. Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. The purchaser can demand possession at any time following the consolidation of ownership in his name and the Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 16 of 20issuance to him of a new TCT. At that point, the issuance of a writ of possession, upon proper application and proof of title becomes merely a ministerial function. Effectively, the court cannot exercise its discretion (SPOUSES EDRALIN vs. PHILIPPINE VETERANS BANK, G.R. No. 168523, March 9, 2011). Mandamus cannot be used to enforce contractual obligations. Generally, mandamus will not lie to enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is imposed. The writ is not appropriate to enforce a private right against an individual, The writ of mandamus lis to enforce the execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in cases relating to the public and to the government; hence, it is called a prerogative writ. To preserve its prerogative character, mandamus is not used for the redress of private wrongs, but only in matters relating to the publie (STAR SPECIAL WATCHMAN AND DETECTIVE AGENCY, INC. versus HAGEDORN, G.R. No. 181792, April 21, 2014). ‘The rule that mandamus cannot be used to enforce contractual obligations may also be applied in transactions entered into by the government. A case in point is: COMMISSION ON ELECTIONS versus QUIJANO-PADILLA G.R. No, 151992, September 18, 2002 FACTS: On September 9, 1999, the COMELEC issued invitations to pre-qualify and bid for the supply and installations of information technology equipment and ancillary services for its Voter's Registration and Identification System Project, or VRIS Project. Private respondent Photokina Marketing Corporation (PHOTOKINA) pre-qualified and was allowed to participate as one of the bidders. After the public bidding was conducted, PHOTOKINA’s bid in the amount of P6.588 Billion Pesos garnered the highest total weighted score and was declared the winning bidder, Thus, on September 28, 2000, the COMELEC issued Resolution No. 3252 approving the Notice of Award to PHOTOKINA, which, in turn, immediately accepted the same. However, under Republic Act No. 8760, the budget appropriated by Congress for the COMELECs modernization project was only One (1) Billion Pesos and that the actual available funds under the Certificate of Availability of Funds (CAF) issued by the Chief Accountant of the COMELEC was only P1.2 Billion Pesos, PHOTOKINA, as the winning bidder, wrote several letters to the COMELEC requesting the formal execution of the contract, but to no avail. Unsatisfied with the adverse turn of events, PHOTOKINA filed with the Regional Trial Court a petition for mandamus, prohibition and damages to compel COMELEC to act on a contract entered into pursuant to law. ISSUE: — Whether COMELEC can be compelled by mandamus to formalize a contract with PHOTOKINA. Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 17 of 20RULING: NO. No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual obligations. Mandamus is not the proper recourse to enforce the COMELEC’s alleged contractual obligations with PHOTOKINA. It has other adequate remedy in law. Moreover, worth stressing is the judicial caution that mandamus applies as a remedy only where petitioner's right is founded clearly in law and not when it is doubtful. In varying language, the principle echoed and reechoed is that legal rights may be enforeed by mandamus only if those rights are well-defined, clear and certain. Here, the alleged contract, relied upon by PHOTOKINA as source of its rights which it seeks to be protected, is being disputed, not only on the ground that it was not perfected but also because it is illegal and against public policy. However, it must be pointed out that, where government contracts are completely performed on the part of the private party, and there is nothing more to do but to effect payment, mandamus will avail to command the government's proper officials to sign and issue the corresponding warrants (ISADA versus BOCAR, ET AL., G.R. No. L-33535, January 17, 1975). BAR QUESTION 2006 Fotokina filed with the RTC a petition for mandamus to compel the COMELEC to implement a contract it had with the former regarding the automation of the elections. The Office of the Solicitor General (OSG), representing COMELEC Chairman Go, opposed the petition on the ground that mandamus does not lie to enforce contractual obligations. During the proceedings, the majority Commissioners filed a manifestation that Chairman Go was not authorized by the COMELEC En Bane to oppose the petition. Is a petition for mandamus an appropriate remedy to enforce contractual obligations? SUGGESTED ANSWER: No, the COMELEC cannot be compelled by a writ of mandamus to discharge a duty that involves the exercise of judgment and discretion, especially where disbursement of public funds is concerned. Mandamus does not lie to enforce the performance of contractual obligations (COMMISSION ON ELECTIONS versus QUIJANO-PADILLA, G.R. No. 151992, September 18, 2002) MARMETO vs. COMELEC G.R. No, 213953, Sept. 26, 2017 ‘The COMELEC cannot be compelled by mandamus to conduct and supervise the procedure for the conduct of initiative elections. The fact that there is a budget appropriated for such purpose is of no moment. As the Court ruled in SBMA vs. COMELEC, the COMELEC is given the power to review the sufficiency of initiative petitions, particularly the issue of whether the propositions set forth therein are within the power of the concerned Sanggunian to enact. Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 18 of 20EXHAUSTION OF ADMINISTRATIVE REMEDIES Asa general rule, mandamus will not issue when administrative remedies are still available, This was the pronouncement of the Supreme Court in: AQUINO versus MARIANO, ET AL. G.R. No. L-30485, May 31, 1984 Before a writ of mandamus may be issued, it is obligatory upon the petitioner to exhaust all remedies in the ordinary course of law. He must show that the duty sought to be performed must be one which the law specifically enjoins as a duty resulting from an office. (Quintero vs. Martinez, 84 Phil. 496; Perez vs. City Mayor of Cabanatuan, 3 SCRA 431; Alzate us. Aldana, 8 SCRA 219; and, Caltex Filipino Managers and Supervisors Association vs. Court of Industrial Relations, 23 SCRA 492). ‘Thus, if appeal or some other equally adequate remedy is still available in the ordinary course of law, the action for mandamus would be improper. In the case at bar, private respondent Adriano, Jr. did not request Fiscal Aquino to include in the information Commissioner Noblejas as one of the accused. Had he done so and the same was met with a denial, Adriano, ¢Jr. could have appealed to the Secretary of Justice who may reverse petitioner and designate another to act for the purpose. That way, the filing of a simple motion with the Fiscal to include or to amend the information is much more speedy and adequate than a petition for mandamus. XXX Otherwise stated, before filing the present action for mandamus in the court below, private respondent Adriano, -Jr. should have availed of this administrative remedy and his failure to do so is fatal. To place his case beyond the pale of this rule, it must be shown that his case falls - which it did not - within the cases where, in accordance with this Court's decisions, the aggrieved party need not exhaust administrative remedies within his reach in the ordinary course of the law (Tapales vs. the President and the Board of Regents of the U.P., G.R. No. L-17523, March 30, 1963; Mangubat us. Osmena, G.R. No. L-12837, April 30, 1959; Baguio vs. Honorable Jose Rodriguez, G.R. No. L-11078, May 27, 1959; Pascual vs. Provincial Board, G. R. No. L-11959, October 31, 1959; Marinduque Iron Mines, ete. vs. Secretary of Public Works, G.R. No. L-15982, May 31, 1963; Alzate vs. Aldaba, G.R. L-14407, February 29, 1960 and Demaisip vs. Court of Appeals, G. R. No. L-13000, September 25, 1959). However, by way of exception, prior exhaustion of administrative remedies would be excused in the filing of a petition for mandamus if the party is in estoppel (VDA. DE TAN versus VETERANS BACKPAY COMMISSION, G.R. No. L-12944, Mareh 30, 1959, a petition for mandamus to compel payment of backpay rights, privileges, and prerogatives under Republic Act Nos. 304 and 897) and in a case where pure questions of law are raised (MADRIGAL versus LECAROZ, G.R. No. L-46218, October 23, 1990, a petition for mandamus to compel reinstatement to a government office and a claim for back salaries and damages related thereto) Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Prohibition and Mandamus - Page 19 of 20MANDAMUS AND PROHIBITION DISTING! ‘UISHED RUT E We Pano yenC ‘Commands the performance of a ministerial duty Grounds are unlawful neglect of the performance of a ministerial duty or unlawful exclusion of another from the use and enjoyment of a right or office Resta diction ‘ins usurpation of jur Grounds are lack or excess of jurisdiction, or grave abuse of discretion amounting to lack or excess of jurisdiction Covers ministerial duties only, as a general rule ‘Commands the respondent to do the act required to be done and to pay the damages sustained by the petitioner Covers ministerial duties, in addition to judicial and quasi-judicial funetions ‘Commands the respondent to desist from further proc ings MANDAMUS AND MANDATORY INJUNCT! Special civil action filed by petition ION DISTINGUISHED ‘A provisional remedy filed as an ancillary to an ordinary civil action Directed against a tribunal, corporation board, or officer Directed against a litigant ‘Commands a tribunal, corporation, board or officer to perform ministerial and legal duty Commands the defendant to perform not necessarily a legal and_ministerial duty Object is to perform a positive legal duty and not to undo what has been done Object is to command the doing of an act to maintain the status quo between the parties Provisional Remedies and Special Civil Actions (JZE) Rule 65 — Prohibition and Mandamus - Page 20 of 20