A legal mistake only a few lawyers know?

A legal mistake only a few lawyers know?


By BERTENI "TOTO" CATALUÑA CAUSINGAuthor of the book entitled "Simplified Libel Law in the Philippines"


 
THIS IS FOR ALL LAW STUDENTS, BAR REVIEWEES, FELLOW LAWYERS.

I am compelled to write this to stop an elementary mistake from creeping into the minds of the laymen, the law students, bar reviewees and fellow lawyers.

Also, I am appalled although I came from a not-so-well regarded law school, the Pamantasan ng Lungsod ng Maynila College of Law.

I am just appalled to see professors of supposed to be the best school of law in the Philippines who are well-known as public-interest advocates commit a mistake on a simple matter about a petition involving special civil actions.

In my petition seeking to shoot down "Cyber Libel," "unsolicited advertisement" and the provision of Section 6 of RA 10175 that upgrades by one degree the imprisonment for any crime under the Revised Penal Code and special penal laws if committed with the use of the Internet, I EMPLOYED THE SPECIAL CIVIL ACTION OF PROHIBITION UNDER RULE 65 of the Rules of Court.  So that the petition I filed with the Supreme Court was "PETITION FOR PROHIBITION."

I was the first to file the petition among the five (5) who have already filed thus far. I filed it on September 24, 2012 at 3:39 p.m.

Biraogo filed "Petition for Certiorari and Prohibition" as well as Atty. JJ Disini of the UP Law and Sen. TG Guingona. Biraogo filed his on Sept. 25, Disini on Sept. 26, and Guingona on Sept. 28.

I don't know yet what action was filed by Atty. Harry Roque, who became the fifth to do so (Sept. 28) joining my lead to fight this Cyber Libel. I heard they were to choose a declaratory relief upon the contention that the law is not yet effective.

Now, certiorari is a wrong remedy because it is used only to shoot grave abuse of JUDICIAL or QUASI-JUDICIAL DISCRETION.  It cannot be used to question a grave abuse of legislative or quasi-legislative discretion.

The only other kind of petition under Rule 65 is Petition for Mandamus, used to address unlawful refusal to perform a lawful act that is a duty or mandatory and the person or body that is the target had no choice on what to do except to follow and apply the duty.

In both certiorari and prohibition, it must be shown there is no other remedy available under the ordinary course of law, or that there is no other PLAIN, SPEEDY OR ADEQUATE REMEDY available under the Rules of Court or somewhere else.  In other words, even if there are other remedies available, if the available remedies cannot catch up with the damaging effect of the exercised discretion or omission of a mandatory duty, then certiorari or prohibition or mandamus can be had.

In mandamus, it is enough to show that the duty required to be done is lawful and the refusal to perform the act is therefore unlawful.

Now, what makes "prohibition" also different from "certiorari," prohibition can be used to address a grave exercise of judicial or quasi-judicial discretion or a ministerial function. But certiorari cannot be used to address legislative and quasi-legislative discretion and ministerial duty violation.

NOW, WHY I FILED MY PETITION IN THE SUPREME COURT?
(Read my petition at this link: http://totocausing.blogspot.com/2012/09/read-to-learn-petition-to-declare-cyber.html)

I chose to file before the Supreme Court my prohibition vs cyber libel because the principle of hierarchy of courts told me that what is involved is an exercise of a legislative discretion of co-equal bodies such as the Senate and the House of Representatives and the Office of the President blending with the lawmakers' fiat.

Moreover, it is a NEW LAW THAT HAS NOT YET BEEN TESTED, NOT YET BEEN APPLIED and NOT YET BEEN INTERPRETED.  And it is only the Supreme Court that has the power of "the final say" as to how to interpret the law.  So that reasons dictate that it should be the High Court that shall take cognizance of the challenge.

HOWEVER, with the circumstances that what is involved is an action that has transcendental effect, there is no problem for resorting to "certiorari."  It is very sure that the Supreme Court would accept "certiorari" as a matter of equity that is enough to set aside the rules. Additionally, this is a case of first impression, or what is termed also as a "seminal case."


I welcome contrary opinions and arguments, they enrich the knowledge.
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