Prerogative writ

Before seeking judicial intervention particularly by means of a petition for certiorari, prohibition and mandamus, a party must clearly show that there is no other remedy available to him. This is illustrated in this case of Zorayda.

Zorayda was the duly elected Mayor of a Municipality in Lanao Del Norte.

Barely two months in office, an admi-nistrative complaint was filed against her by the Municipal Treasurer before the Sang-guniang Panlalawigan charging her with Dishonesty, Oppression, Grave Misconduct, Abuse of Authority and Usurpation of Authority.

After hearing, a decision was rendered by the Sanggunian finding Zorayda guilty of misconduct in office and grave abuse of authority and suspending her for six months. The decision ordered the immediate suspension of Zorayda even if she appealed and while it was still pending.

Zorayda questioned the decision by filing a petition for certiorari, prohibition and mandamus before the Court of Appeals (CA) with an application for the issuance of a temporary restraining order (TRO) to maintain the status quo. The CA issued the TRO and subsequently granted the writ of preliminary prohibitory injunction enjoining the Sanggunian from executing and implementing the suspension order pending termination of the litigation, unless sooner lifted.

More than a year later, the CA rendered its decision denying due course and dismissing Zorayda’s petition. The CA said that before going to Court Zorayda should have appealed the decision of the Sanggunian to the Office of the President pursuant to Sections 61(b) and 67(b) of the Local Government Code which provide that the decision of the Sanggunian Panlalawigan in administrative cases against elective official may be appealed to the Office of the President within thirty days from receipt thereof. Was the CA correct?

Yes. It is apparent from Sections 61(b) and 67(b) of the Local Government Code that the remedy of appeal to the Office of the President was available to Zorayda. Since appeal was available, resort to filing a petition for certiorari, prohibition and mandamus with the CA was inapt.

The existence and availability of the right of appeal proscribes a resort to certiorari, because one of the requirements for the availment of the latter remedy is precisely that there should be no appeal. The writ of certiorari under Rule 65 of the Rules of Court is a prerogative writ, never demandable as a matter of right, never issued except in the exercise of judicial discretion. Certiorari will lie only when a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction. As a condition for filing a petition for certiorari, Section1 of Rule 65 of the Rules of Court additionally requires that "no appeal, or any plain, speedy and adequate remedy in the ordinary course of law" must be available. The availability of the right of appeal in this case precludes recourse to the special civil action of certiorari (Balindong vs. Dacalos et. Al. G.R. 158874, November 10, 2004).

* * *

E-mail: [email protected]