As far as the Supreme Court (SC) is concerned, there was nothing wrong with the Department of Justice’s (DOJ) move in 2024 to raise the standard of evidence in preliminary investigation.

The SC en banc announced on Wednesday, March 11 that it upheld the validity of DOJ’s Department Circular No. 15, series of 2024, or the 2024 DOJ-National Prosecution Service Rules on Preliminary Investigation and Inquest Proceedings.

This order, issued by then-DOJ Secretary Jesus Crispin “Boying” Remulla, raised the level of evidence in preliminary investigations done by prosecutors from probable cause to prima facie evidence with reasonable certainty of conviction.

In the decision penned by Associate Justice Japar Dimaampao, the en banc dismissed the petition filed by lawyer Hazel Meking, who claimed that the DOJ encroached on the SC’s powers to promulgate rules of pleading, practice, and procedure in courts.

The SC said the DOJ’s circular is a valid exercise of the agency’s authority over prosecutorial processes.

So why is this standard of evidence necessary? How did it change the rules in criminal cases?

Understanding the process

In criminal proceedings, not all legal actions reach the courts because prosecutors are there to decide whether these actions have enough evidence to be brought to a judge or not.

By process, an offended party files a complaint (reklamo) with prosecutors who are working under the Department of Justice’s (DOJ) National Prosecution Service. The filer becomes the complainant (nagrereklamo) and his/her complaint must state the names and addresses of the parties, as well as the date and place where the alleged crime or offense was violated.

A process called preliminary investigation (PI) follows, where the handling prosecutors decide whether the complaint has merits or has enough evidence. PI is “a summary proceeding to determine whether a person should be indicted in court after ascertaining, based on the evidence provided and after case build-up has been conducted.”

The respondent (inirereklamo) will be given due process to answer the allegations against him/her through the filing of necessary affidavits.

After assessing the submissions and evidence, the prosecutors will issue a resolution that will either dismiss the complaint or pursue the legal action against the respondent. If the level of evidence has been met, the prosecutors will indict the respondent or file a case against him/her with a court.

Simply, the threshold or the quantum of evidence is important in preliminary investigations because this dictates whether a charge will reach the courts or not.

Higher level of evidence

In 2024, Remulla issued Department Circular (DC) No. 15 to raise the quantum of evidence needed for preliminary investigation — from probable cause to prima facie evidence with reasonable certainty of conviction. This is to ensure that only cases with enough evidence and can secure conviction will be filed in courts.

The circular also covers inquest proceedings, a special type of preliminary investigation done in warrantless arrests.

Probable cause is defined in Joson vs. Office of the Ombudsman as the “existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.” In other words, there is enough reason to believe that a crime has been committed.

But prima facie evidence with reasonable certainty of conviction is much more stringent.

Wa-acon vs. People defines prima facie evidence as “that is not rebutted or contradicted, making it good and sufficient on its face to establish a fact constituting a party’s claim or defense.”

According to Remulla’s circular, prosecutors can only now pursue cases when a prima facie case is established by evidence – including but not limited to testimonial, documentary, and real – that on its own, can warrant a conviction beyond reasonable doubt.

In addition, the threshold is also met when the handling prosecutor is convinced the pieces of evidence presented are:

• admissible
• credible
• “capable of being preserved and presented to establish all the elements of the crime or offense, as well as the identity of the person or persons responsible therefor”.

Preliminary investigation is prosecutors’ duty

In the same year Remulla signed his circular, the SC also issued a resolution penned by Associate Justice Rodil Zalameda that recognized the DOJ’s power to promulgate DC No. 15. The en banc highlighted this in their latest decision that junked Meking’s petition.

According to the SC, the Zalameda ponencia did not only trace the historical development of probable cause as quantum of evidence in preliminary investigations, but also explained why this process is an executive function and not judicial in character.

Based on the 2005 revisions to the Rule of Criminal Procedure, the power to conduct preliminary investigations “has been vested in the exclusive domain of the public prosecutors,” the en banc said.

The SC added that People vs. Navarro also said that PI is an executive function. It also cited Salta vs. CA, where it was explained that the reason why PI is a prosecutorial job is to shield the accused “from needless trials and conserving judicial resources while applying the now-familiar well-founded belief standard.”

“In our jurisdiction, the power to prosecute crimes through the prosecutor is part of the President’s mandate under the Constitution to ensure the faithful execution of laws. Being a purely Executive function, the prosecutor’s power to prosecute includes, but is not limited to, ‘whether, what, and whom to charge,’ due to the many variables inherent in criminal prosecution,” Senior Associate Justice Marvic Leonen said in his concurring opinion.

“[The DOJ circular] does not dictate practice or procedure in court. This Court’s constitutional rule-making authority remains supreme over judicial proceedings, and its power to correct, on grave abuse of discretion, any prosecutorial rule or action that impairs constitutional rights, is retained,” the High Court explained. – Rappler.com