SC: DOJ HAS RULEMAKING POWER IN PRELIMINARY INVESTIGATION - 24 PJP 21 (2024)

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    Recently, there have been doubts regarding the legality of the 2024 Department of Justice - National Prosecution Service Rules on Preliminary Investigation (2024 DOJ-NPS Rules), especially the part thereof that modifies the minimum penalty requirement for the conduct of such investigation from "at least four years two months and one day" to "at least six years." These doubts are grounded on the argument that the rule on preliminary investigation is incorporated in the Rules of Court and only the Supreme Court has the power to promulgate changes to the same.

    All doubts must, however, be dispelled as the Supreme Court has already recognized the authority of the DOJ to promulgate the 2024 DOJ-NPS Rules. Per Associate Justice Zalameda, in A.M. No. 24-02-09-SC dated May 28, 2024, the Supreme Court said:

    FOR THESE REASONS, the Court hereby RECOGNIZES the AUTHORITY of the Department of Justice to promulgate its 2024 DOJ- National Prosecution Service Rules on Preliminary Investigations and Inquest Proceedings (2024 DOJ-NPS Rules).

    Thereafter, and once the 2024 DOJ-NPS Rules are promulgated by the DOJ, the pertinent provisions of Rule 112 of the 2000 Revised Rules on Criminal Procedure, as amended, inconsistent therewith are deemed REPEALED. This shall be without prejudice to the Court's promulgation of its own rules of procedure, of a new rule touching upon preliminary investigation, consistent with the 2024 DOJ- NPS Rules.

    Let a copy of the 2024 DOJ-NPS Rules be endorsed to the Sub- Committee on the Revision of the Rules of Criminal Procedure for its guidance and appropriate action.

    SO ORDERED.

    In said issuance, the High Court gave a brief history of the rule on preliminary investigation. In a nutshell, it was explained that, under the 1940 Rules of Court, judges had a hand in such investigations. Later, under the 1964 version of the Rules of Court, the term “preliminary examination” was used. Much later, however, the 1985 Rules on Criminal Procedure reverted to the term “preliminary investigation.”

    In recognizing the DOJ’s power to promulgate rules regarding the conduct of preliminary investigation, the Supreme Court considered the nature of the same and emphasized on the Judicial Branch’s policy on non-interference in the conduct thereof. Thus, it resolved to recognize the authority of the DOJ to promulgate its own rules despite the existence of preliminary investigation rules in the Rules of Court. The Court further explained that the DOJ’s prerogative to direct and control the conduct of preliminary investigations is executive in nature and the Court will not and cannot interfere with the same so long as it not tainted with grave abuse of discretion. Further, to give way to the DOJ’s implementation of the 2024 DOJ-NPS Rules, the Supreme Court declared repealed all provisions of Rule 112 of the Rules of Court that are inconsistent with the former.

    It must be stressed, however, that the promulgation of the 2024 DOJ-NPS Rules would not ipso facto repeal Rule 112 of the 2000 Rules. Toward the end of its En Banc Resolution, the Supreme Court also said:

    The repeal, however, is without prejudice to the Court's promulgation of its own procedure, of a new rule touching upon preliminary investigation. In fact, the Sub-Committee for the Revision of the Rules on Criminal Procedure proposes a new version of Rule 112. This version contains: (1) definitions of preliminary investigation and inquest, (2) an acknowledgment that the conduct of preliminary investigation is within the exclusive jurisdiction of the DOJ, the Office of the Ombudsman, the Commission on Elections, and other officers as may be authorized by law, and (3) other provisions not inconsistent with the proposed DOJ-NPS Rules. The same was introduced because the Sub-Committee recognizes that other government agencies also conduct preliminary investigations, which will not be covered by the DOJ-NPS Rules.

    To summarize, only the Supreme Court has the power and authority to promulgate rules regarding pleading, practice, and procedure. Having such exclusive power, only the Court can introduce amendments to the Rules of Court. However, considering the nature of preliminary investigations conducted by the NPS, being essentially executive, the DOJ has the prerogative to control its processes to implement such power.

    Nonetheless, it was not the issuance of the 2024 DOJ-NPS Rules per se that caused an amendment to the Rules of Court. It was A.M. No. 24-02-09-SC issued by the Supreme Court, effecting two things: (a) first, the recognition of the DOJ's preliminary investigation powers; and (b) the automatic repeal of the provisions of Rule 112 of the Rules of Court if inconsistent with the 2024 DOJ-NPS Rules.