DOJ's discretion to prosecute state witness; mandamus

In the case of Ampatuan v. De Lima,[1] the admission of accused Dalandag into the Witness Protection Program of the DOJ in accordance with Republic Act No. 6981 (The Witness Protection, Security and Benefit Act) as a state witness since August 13, 2010 was declared by the Supreme Court justified and warranted by the absolute necessity of his testimony to the successful prosecution of the criminal charges. Apparently, all the conditions prescribed by Republic Act No. 6981 were met in his case.The Supreme Court also said that his admission of his participation in the commission of the Maguindanao massacre was no hindrance to his admission into the Witness Protection Program as a state witness, for all that was necessary was for him to appear not the most guilty. Accordingly, he could not anymore be charged for his participation in the Maguindanao massacre, as to which his admission (into the Program) operated as an acquittal, unless he later on refuses or fails to testify in accordance with the sworn statement that became the basis for his discharge against those now charged for the crimes.

On October 14, 2010, petitioner, through counsel, wrote to respondent Secretary of Justice Leila De Lima and Assistant Chief State Prosecutor Richard Fadullon to request the inclusion of Dalandag in the informations for murder considering that Dalandag had already confessed his participation in the massacre through his two sworn declarations. Petitioner reiterated the request twice more on October 22, 2010 and November 2, 2010. By her letter dated November 2, 2010, however, Secretary De Lima denied petitioner’s request.[2]

In the Supreme Court, public respondents Secretary of Justice De Lima, et al. are asked to be compelled by the Court via mandamus to charge Dalandag as an accused for multiple murder in relation to the Maguindanao massacre despite his admission to the Witness Protection Program of the DOJ. Will the petition for mandamus succeed?

The answer is yes, but only to the extent of compelling the public respondents to exercise discretion but not to act in a certain way, i.e., to grant or deny such letter-request.

Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. In matters involving the exercise of judgment and discretion, 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,[3] or to compel the retraction or reversal of an action already taken in the exercise of judgment or discretion.[4]

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 a certain way, i.e., to grant or deny such letter-request or motion.[5]


[1] https://www.projectjurisprudence.com/2021/08/gr-no-197291-april-03-2013.html.

[2] Id.

[3] See Quarto v. Marcelo, G.R. No. 169042, October 5, 2011, 658 SCRA 580, 594; Angchangco, Jr. v. Ombudsman, 335 Phil. 766 (1997).

[4] Angchangco , Sr. v. Ombudsman, supra, 771-772.

[5] Supra note 1.

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