Who sets preliminary investigation rules?
The DoJ circular was therefore upheld because it governs the conduct of prosecutors during preliminary investigation.
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The DoJ circular was therefore upheld because it governs the conduct of prosecutors during preliminary investigation.
A recent decision of the Supreme Court offers an important clarification on a matter that lies at the intersection of constitutional law and criminal procedure: who has the authority to regulate preliminary investigations?
In Atty. Hazel L. Meking v. Secretary Jesus Crispin C. Remulla (G.R. 280455, 11 November 2025), the Court addressed a challenge to Department of Justice Circular 015, which introduced the 2024 DoJ–National Prosecution Service Rules on Preliminary Investigations and Inquest Proceedings.
At the center of the controversy was a provision that appeared to raise the quantum of evidence required in a preliminary investigation. Traditionally, Rule 112 of the Rules of Criminal Procedure provides that a preliminary investigation seeks to determine probable cause — that is, whether there exists a well‑founded belief that a crime has been committed and that the respondent is probably guilty thereof.
The DoJ circular, however, used language suggesting a higher threshold: prima facie evidence with reasonable certainty of conviction. This formulation understandably raised eyebrows among members of the bar. The petitioner argued that by effectively altering the evidentiary standard in preliminary investigations, the DoJ had encroached upon the Supreme Court’s exclusive constitutional power to promulgate rules on pleading, practice, and procedure under Article VIII, Section 5(5) of the Constitution.
The Supreme Court was not persuaded.
In dismissing the petition, the Court underscored a doctrinal point that is sometimes overlooked: a preliminary investigation is not a judicial function. Rather, it is an executive function undertaken by prosecutors as part of their role of determining whether criminal charges should be filed in court.
This distinction proved decisive.
The Court revisited the jurisprudential foundations of a preliminary investigation, citing earlier rulings which consistently describe the process as an administrative determination conducted by prosecutors within the executive branch. Its purpose is practical and protective — to shield individuals from unwarranted prosecution and to spare courts from the burden of unnecessary trials.
Because a preliminary investigation belongs to the executive domain, the Court recognized that the Department of Justice (DoJ) has the authority to promulgate rules governing how prosecutors conduct such investigations.
Equally significant is that the issue had already been addressed in an earlier administrative resolution involving the draft DoJ–NPS rules. In that resolution, the Court acknowledged the DoJ’s authority to issue the rules and declared that portions of Rule 112 of the Rules of Criminal Procedure inconsistent with the new DoJ rules would be deemed repealed upon their promulgation.
In effect, the Court harmonized two constitutional principles.
On the one hand, the Supreme Court retains exclusive authority over rules governing pleading, practice, and procedure in courts. On the other, the executive branch — through the Department of Justice — may regulate prosecutorial processes that occur before cases ever reach the courtroom.
The DoJ circular was therefore upheld because it governs the conduct of prosecutors during preliminary investigation rather than procedures observed by courts in the adjudication of criminal cases.
The decision serves as a reminder that constitutional powers are often complementary rather than competing. The judiciary safeguards procedural rules within the courts, while the executive manages prosecutorial functions within its sphere of responsibility.
Ultimately, the ruling reinforces a fundamental insight in criminal justice administration: the determination of whether a criminal case should reach the courtroom is itself an executive judgment. And like many executive processes, it may be shaped by rules issued by the agencies tasked with enforcing the law.
For lawyers and prosecutors alike, the lesson is clear. Preliminary investigation remains an executive function — and the Department of Justice, within constitutional bounds, may determine how that function is carried out.
For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cad@divinalaw.com.
