HON. AMADO M. CALDERON IN HIS CAPACITY AS ACTING PRESIDING JUDGE, RTC, BRANCH 11, MALOLOS, BULACAN, PETITIONER, VS. THE SOLICITOR GENERAL AND MAURO DIONISIO, RESPONDENTS.

This is a joint petition for certiorari (G.R. No. 103753)
and mandamus (G.R. No. 103752).

In G.R. No. 103753, petitioner seeks the review of the decision
dated December 17, 1991 and the resolution dated January 28, 1992 of the Court
of Appeals declaring null and void petitioner’s orders dated April 29, 1991 and
August 23, 1991 which motu proprio increased the bail bonds
posted by private respondent who was accused of violating Batas Pambansa Blg.
22 (CA – G.R. SP No. 25801) without citing any justifiable reason therefor.

On the other hand, in G.R. No. 103752, petitioner prays for
judgment commanding respondent Solicitor General to forthwith represent him by
filing a petition before this Court by way
of appeal from the decision of the Appellate Court in CA – G.R. SP No. 25801.

The undisputed facts are as follows:

On January 29, 1990, the Office of the Provincial Prosecutor filed
three separate informations for violation of Batas Pambansa Bilang 22 with the
Regional Trial Court of Bulacan (Malolos) against accused-private respondent
involving the following amounts: P114,902.00 (Criminal Case 240-M-90), P141,710.00 (Criminal Case
241-M-90) and P110,923.00 (Criminal Case 242-M­-90). These three informations were assigned to different salas.

Subsequently, the Provincial Prosecutor recommended bail of
P1,000.00 for each case, and conformably with the recommendation, private
respondent filed three separate bail bonds of P1,000.00 for his provisional
liberty.

On petition of private respondent, the aforementioned cases were
consolidated in the sala of petitioner.

On April 29, 1991, “after noting from the records that the
bonds posted by the private respondent was only P1,000,00 for each of the three
cases,” petitioner issued an order increasing the bail bond to P25,000.00
(Criminal Case No. 240-M-90); P35,000.00 (Criminal Case No. 241-M-90) and
P25,000.00 (Criminal Case No. 242-M-90).^[1]

On May 9, 1991, private respondent filed an Urgent Motion for
Reconsideration of said order contending that the recommended bail in the
amount of P1,000.00 was in accordance with the Bail Bond Guide for the National
Prosecution Service pursuant to Ministry of Justice Circular No. 36 dated
September 1, 1981.^[2]
But on August 23, 1991, petitioner denied the motion and directed the issuance
of a warrant of arrest against private respondent.^[3]

On August 27, 1991, private respondent filed with the Court of
Appeals a petition for certiorari and prohibition with an urgent prayer
for preliminary injunction to nullify and set aside the orders dated April 29,
1991 and August 23, 1991 issued by petitioner, reiterating that the recommended
bail bonds were in accordance with the guidelines on bail bonds issued by the
then Ministry of Justice and that the increase of the bail bond was violative
of his constitutional right against excessive bail.^[4]

On September 4, 1991, the Court of Appeals required the Solicitor
General representing the People of the Philippines to comment on the petition
and show cause why a preliminary injunction should not be issued within ten
days from receipt.^[5]

On December 17, 1991, the Appellate Court nullified the
questioned orders issued by petitioner for failure to show the reasons for the
increase of the bail bonds as required by Section 17 of Rule 114 of the 1985
Rules on Criminal Procedure as amended. Moreover, the Court of Appeals added that the unwarranted increase of
amount violated private respondent’s constitutional right against excessive
bail.^[6]

On January 13, 1992, petitioner filed a motion for
reconsideration after he was refused representation by the Office of the
Solicitor General.^[7]
On January 28, 1992, the Court of Appeals denied petitioner’s motion for
reconsideration.^[8]

Hence, this joint special civil action for certiorari and mandamus.

The two issues to be resolved in this case are whether or not
petitioner has standing to file this instant petition for certiorari and
whether or not a writ of mandamus may issue commanding the Solicitor
General to appear in behalf of petitioner.

This joint petition for certiorari and mandamus
must fail. We see no necessity in
discussing the merits of petitioner’s order dated April 29, 1991 which motu
proprio increased the bail bond of private respondent because this joint
petition for certiorari and mandamus suffers from a procedural
infirmity.

To recall, this case originally started as “People of the
Philippines v. Mauro Dionisio,” in three separate informations for
violation of Batas Pambansa Blg. 22. After petitioner raised the bail bonds of accused, the latter elevated
his case before the Appellate Court entitled; “Mauro Dionisio v. Hon.
Amado Calderon, Presiding Judge, RTC, Malolos, Bulacan Branch II.”
Subsequently, petitioner believing that he was a real party in interest filed
this instant petition for certiorari and mandamus against the
Solicitor General and the accused Mauro Dionisio.

Petitioner, with his years of experience in the judiciary, should
have known that he has no standing to file this instant petition because he is
merely a nominal party as gleaned from Section 5 of Rule 65 of the Revised
Rules of Court which states that:

“Defendants and costs in certain
cases. – When the petition filed
relates to the acts or omissions of a court or judge, the petitioner shall
join, as parties defendant with such court or judge, the person or persons
interested in sustaining the proceedings in the court; and it shall be the duty
of such person or persons to appear and defend, both in his or their own behalf
and in behalf of
the court or judge affected by the
proceedings, and costs awarded in such proceedings in favor of the petitioner shall
be against the
person or persons
in interest only and not against
the court or judge.” (Underscoring supplied).

Accordingly, a judge whose order is being assailed is
merely a nominal or formal party. In
such capacity, therefore, he should not appear as a party seeking the reversal
of a decision that is unfavorable to the action taken by him. ^[9]

In the case at bar, private complainant being the real party
interested in upholding petitioner’s questioned orders increasing the bail
bonds, had the legal personality to file the instant case. Since he did not even bother to assail the
decision of the Court of Appeals holding petitioner’s actuations as having been
issued with grave abuse of discretion, then much less should petitioner go out
of his way to file this joint petition for certiorari and mandamus.

Judge Calderon should be reminded of the well-known doctrine that
a judge should detach himself from cases where his decision is appealed to a
higher court for review. The raison
d’etre for such doctrine is the fact that a judge is not an active combatant in
such proceeding and must leave the opposing parties to contend their individual
positions and for the appellate court to decide the issues without his active
participation. By filing this case,
petitioner in a way ceased to be judicial and has become adversarial instead.^[10]

Considering that petitioner has no standing to file this certiorari
proceeding, then logically his petition for mandamus also deserves scant
consideration. Nonetheless, we feel
that we would be making a significant contribution to jurisprudence if we definitely settled the question of
whether mandamus will lie to compel
the Solicitor General to represent a judge whose decision has been nullified by the Court of Appeals. It is our considered opinion that petitioner cannot compel the Solicitor General to defend his unwarranted act
of increasing the private respondent’s bail. As a special civil action, mandamus lies only to compel an officer to
perform a ministerial duty but not to
compel the performance of a discretionary duty.^[11]

In the case at bar, petitioner contends that pursuant to paragraph (1) of Section 35, Chapter 12 of Book IV of the Administrative Code of 1987, it
is the specific legal duty of the Solicitor
General “to represent the government and its officers before the Supreme Court, the Court of Appeals and
other courts or tribunals in all civil actions and special proceedings in which the government or any officer
thereof in his official capacity is a
party.” To buttress his contention, he cites our recent case Ramon A. Gonzales
v. Francisco Chavez.^[12]

Petitioner has not read carefully our decision. In the Gonzales case, we held
that the Solicitor General may not just drop a case without any legal and valid reason because his discretion is not unlimited. To quote, “(L)ike the Attorney General
who has absolute discretion in choosing whether to prosecute or not to
prosecute or to abandon a prosecution already started, our own Solicitor
General may even dismiss, abandon, discontinue or compromise suits either with
or without stipulation with the other party.” We added that, “upon
receipt of a case certified to him, the Solicitor General exercises his
discretion in the management of the case. He may start the prosecution of the case by filing the appropriate
action in court or he may opt not to file the case at all. He may do everything within his legal
authority but always conformably with the national interest and the policy of
the government on the matter at hand.”

On the basis of the aforequoted jurisprudence, it is evident that
since the Solicitor General has the right to decide when and how to defend or
prosecute a case, his duty, therefore, is discretionary and not
ministerial. A duty is ministerial when
the discharge of the same requires neither the exercise of official discretion
nor judgment.^[13]

What would be the consequence if the Solicitor General were
compelled to appear and defend petitioner’s act of increasing private
respondent’s bail? Obviously, he would be
acting contrary to the bail bond guidelines of the Executive Department,
specifically the Department of Justice. Taking up the cudgels for the petitioner would place him at cross
purposes with the avowed policies of the Executive Department of which he is
undeniably a part, as expressed in the different circulars issued by said
agency.

Clearly, the pleadings show that petitioner is not entitled to
the mandamus he seeks from this Court, for he has neither shown a clear
legal right to the thing demanded
nor demonstrated that it is the Solicitor General’s imperative duty to defend
him on the sole ground that he is a public officer.

WHEREFORE, the instant petition for certiorari is
hereby DISMISSED and the writ of mandamus applied for is hereby DENIED.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin,
Griño-Aquino, Regalado, Davide, Jr., Nocon, Bellosillo, Melo, and Campos, Jr., JJ., concur.

^[1]
Rollo of G.R. No. 103753, p. 14.

^[2]
Ibid., p. 16.

^[3]
Ibid., p. 15.

^[4]
Ibid., pp. 9-13.

^[5]
Ibid., p. 17.

^[6]
Ibid., pp. 7-10.

^[7]
Rollo of G.R. No. 103752, pp. 32-39.

^[8]
Ibid., p. 40.

^[9]
Maguan v. Court of Appeals, L- 45101, November 28, 1986, 146 SCRA 107;
Lim Se v. Angel, L-42800, April 7, 1975, 70 SCRA 378; Tarona v. Sayo,
L-37296, October 30, 1975, 67 SCRA 524, and Hon. Alcasid v. Samson, 102
Phil. 735-736.

^[10]
Hon. Santiago v. Court of Appeals, G. R. No. 46845, April 27, 1990, 184
SCRA 590, 693.

^[11]
Mateo v. Court of Appeals, G.R. No. 83354, April 25, 1991, 196 SCRA 280;
Cruz v. Major General Montano, G.R. No. 92066, June 5, 1990, En Banc,
Minute Resolution; Marcelo v. Tantuico, Jr., G.R. No. 60074, July 7,
1986, 142 SCRA 439; Caltex Filipino Managers and Supervisors Association v.
Court of Industrial Relations, G.R. No. L-28472, April 30, 1968, 23 SCRA 492;
Llanto v. Dimaporo, G.R. No. L-21905, March 31, 1966, 16 SCRA 599.

^[12]
G.R. No. 97371, February 4, 1992, 205 SCRA 816.

^[13]
Lemi v. Valencia, L-20768, November 29, 1968, 26 SCRA 203.