Right To Preliminary Investigation - Don't Deny Due Process
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  • Right To Preliminary Investigation – Don’t Deny Due Process

Anyone should not be denied due process of law. Right to preliminary investigation, although not a constitutional right, is a statutory grant. Every initiation of criminal case must go through the determination of probable cause that a crime has been committed and that the respondent is probably guilty thereof. This is true whether the respondent has undergone inquest proceeding or a regular preliminary investigation, or in some other instance, preliminary examination.

Consequently, unless validly apprehended without a warrant of arrest, there shall be no criminal information that should be sent to the respondent, without the latter being complained of first before the Office of the Public Prosecutor. Doing so, without the requisite preliminary investigation, is a blatant disregard of the right of the respondent to due process.

However, if the case is not subject to preliminary investigation as the imposable penalty for the offense charged is less than 4 years, 2 months, and 1 day, a full blown preliminary investigation shall not be required. Instead, the public prosecutor, upon the filing of the complaint-affidavit, shall act on it in accordance with Section 8 of Rule 112 of the Rules of Criminal Procedure, as amended by, Administrative Matter No. 05-8-26-SC. Thus:

Section 8 [Administrative Matter No. 05-8-26-SC]1

Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. —2

    1. If filed with the prosecutor. —2

If the complaint is filed directly with the prosecutor involving an offense punishable by an imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing.2

“x x . . “

Preliminary Investigation

At the outset, it is best to have a working knowledge about the nature of a preliminary investigation. This is an executive function, done by the Public Prosecutor under the auspices of the National Prosecution Service that is attached to the Department of Justice.

Thus, a preliminary investigation is an inquiry or hearing designed to assess if there is sufficient basis to support a well-founded suspicion that a crime has been committed and the respondent is likely guilty of it and should be indicted for trial. This is not yet a finding of guilt but an evaluation on the part of the public prosecutor whether or not a criminal information should be filed against the respondent.

The preliminary investigation is the procedure in which the public prosecutor is given considerable authority to evaluate whether probable cause exists for filing a criminal information in court. In finding probable cause, such function of the public prosecutor is an executive determination.

Before filing a complaint or information for an alleged offense committed when the penalty prescribed by law is at least four (4) years, two (2) months, and one (1) day without regard to the fine, a preliminary investigation must be done.

Regardless of what the name implies, preliminary investigation is not to be confused with an initial “investigation” or evidence collecting which is undertaken by law enforcement agencies such as the Philippine National Police or the National Bureau of Investigation or any fact-finding body into an incident. The public prosecutor is in charge of preliminary investigations as part of criminal due process.

Recent guidelines

Under Department Order [DO] No. 279, dated June 30, 2022, the Department of Justice of the Philippines, issued guidelines in connection with the Rules on Preliminary Investigation under the Rule 112 of the Rules of Criminal Procedure. Thus:

In the interest of the service and pursuant to existing laws, rules and regulations, and in order to have a nationwide application of Section 1, paragraph 2 of Rule 112 of the Revised Rules of Criminal Procedure in the entire nation, the Prosecutor General, Regional Prosecutors, City Prosecutors, and Provincial Prosecutors, are hereby directed to strictly observe and implement the following rules in their respective jurisdictions:3

    1. Upon receipt of the complaint-affidavit/s, sworn-statement/s, and/or judicial affidavit/s and their supporting documents, the investigating prosecutor shall evaluate the same, and determine the penalty prescribed by law for the offense/s charged.4


For offense/s where the penalty prescribed by law is less than four (4) years, two (2) months, and one (1) day, the investigating prosecutor must immediately:4

    1. Resolve the case without conducting a preliminary investigation; and4
    2. Forward the resolution to the recommending and/or approving authority.4


For offense/s where the penalty prescribed by law is at least four (4) years, two (2) months, and one (1) day, the investigating prosecutor must immediately conduct the preliminary investigation in accordance with Section 3, Rule 112 of the Rules of Court and the Revised Manual for Prosecutors.4

    1. When two (2) or more offenses are charged in the same complaint-affidavit, sworn statements, and/or judicial affidavit, the investigating prosecutor shall likewise determine the penalties for each offense. If at least one (1) offense requires the conduct of preliminary investigation, the investigating prosecutor shall immediately conduct the preliminary investigation for both/all offenses in accordance with Section 3, Rule 112 of the Rules of Court.4

Who are the authorities empowered to conduct Preliminary Investigations?

Prior to the amendment of the Rule 112 of the Rules of Criminal Procedure on October 3, 2005, the Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts are also empowered to conduct the requisite Preliminary Investigation. With the amendment, however, Section 2 of Rule 112 of the Rules of Criminal Procedure now provides:

Section 2[Administrative Matter No. 05-8-26-SC]1

Officers authorized to conduct preliminary investigations. —5

The following may conduct preliminary investigations:2

    1. Provincial or City Prosecutors and their assistants;2
    2. National and Regional State Prosecutors; and2
    3. Other officers as may be authorized by law.2

Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions.2

Preliminary Investigation – Merely Inquisitorial

In accordance with settled jurisprudence, the prosecutor does not emphatically adjudged whether the respondent is guilty or innocent. Preliminary investigation, as the initial step in criminal justice process, is inquisitorial in nature, and it is sometimes the only way for the prosecutor to evaluate who may be fairly charged with a crime, thereby, allowing the fiscal to indict the respondent, through a criminal complaint or information in the name of the People of the Philippines.

Preliminary investigation is merely inquisitorial, and it is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information.6

The finding is opinion-based, anchored on reasonable belief, logic, and common sense. A preliminary investigation, under the Rules of Criminal Procedure, is necessary before filing a complaint or information in court for a crime when the imposable penalty is at least four years, two months, and one day without respect to the fine, except in circumstances of warrantless arrest, as mentioned earlier.

What are the steps in Preliminary Investigation? | How is it conducted?

When the investigating prosecutor determines that there is sufficient basis to hold the respondent for trial, he must draft and prepare the resolution and information, charging the former of a certain crime.

Then, the Prosecutor shall certify under oath in the information that he, or, as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is cause or well-founded assumption to suspect that a crime has been committed. and that the accused is most likely guilty of it; and that the accused was informed of the complaint and the evidence presented against him; and that he was given an opportunity to present controverting evidence.

If the investigating prosecutor recommends dismissing the complaint but his recommendation is rejected by the provincial or city prosecutor, chief state prosecutor, Ombudsman or his deputy on the grounds that a probable cause exists, the latter may file the information against the respondent himself or direct any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

The procedure begins with the filing of a complaint-affidavit by a complainant, who might be a private individual who was a victim of the violation, or by a law enforcement officer, such as the operatives of the Philippines National Police or the agents of the National Bureau of Investigation. Thus:

“Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:5

“(a) The complaint shall state the address of the respondent and shall be accompanied by affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.2

“x x . .”

Complaint must be in an Affidavit Form – Period to Act on it

The complaint must be in the form of an affidavit, which must be subscribed to and sworn to before the public prosecutor or other government official authorized to administer oath, or, in their absence or inability to appear, before a notary public. If the investigating officer sees no reason to continue the inquiry within 10 days of receiving the complaint, he may dismiss it.

“(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and document.2

“x x . .”

Service of the Subpoena to the Respondent – Accompanied by the copy of the Complaint-Affidavit and supporting proofs thereof

If not, the respondent will be served with a subpoena including a copy of the complaint and its supporting affidavits and documents. The latter must appear before the investigating officer on a certain day and time to present his counter-affidavit, as well as the affidavits of his witnesses and other supporting papers. Counter-affidavits must be subscribed, sworn to, and certified in the same manner as the complaint. A move to dismiss in place of a counter-affidavit is not permitted.

“(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.2

When respondent cannot be served with the subpoena – Duty of the Investigating Prosecutor

It must not be presumed that because a respondent does not respond, the complaint will be dismissed. The Revised Rules of Criminal Procedure, on the other hand, provide that if the respondent cannot be subpoenaed or, if subpoenaed, does not file counter-affidavits within the 10-day timeframe, the investigating officer must settle the complaint based on the evidence offered by the complainant.

“(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.2

During a preliminary inquiry, a formal hearing is not normally held. However, if the investigating officer believes that facts and concerns need to be clarified from a party or a witness, a clarificatory hearing may be held. The parties may attend the hearing but will not be able to question or cross-examine the witnesses.

“(e) The investigating officer may set a hearing if there are such facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.2

“(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.2

The court has often stated that, while a preliminary investigation is not a trial and is not meant to take the place of the trial court, it is not a light matter.

A preliminary investigation is in effect a realistic judicial appraisal of the merits of the case; sufficient proof of the guilt of the criminal respondent must be adduced so that when the case is tried, the trial court may not be bound, as a matter of law, to order an acquittal. Although a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair; the officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused.7

Its noble objective is to shield the innocent from premature, spiteful, and oppressive prosecution, as well as to protect him from an open and public charge of a crime, as well as the inconvenience, expense, and worry of a public trial. Thus:

After all, the purpose of preliminary investigation is not only to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial; it is just as well for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial. More importantly, in the appraisal of the case presented to him for resolution, the duty of a prosecutor is more to do justice and less to prosecute.8

Is the Right to Preliminary Investigation waivable?

As a rule, rights may be waved. Preliminary investigation is a statutory right given to an individual, who may be a complainant or respondent in the aforesaid investigation. No less than Article 6 of the Civil Code of the Philippines recognized this waiver of rights. Thus:

Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.9

Significantly, the Supreme Court made a pronouncement that the right to Preliminary Investigation may be waived. Hence:

“It is well-settled that the right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. Failure of accused to invoke his right to a preliminary investigation constituted a waiver of such right and any irregularity that attended it. The right may be forfeited by inaction and can no longer be invoked for the first time at the appellate level.6

“Petitioner’s argument that he could not have asked for a new preliminary investigation in the Office of the Ombudsman since he came to know about the charge only after the information was filed in the Sandiganbayan, is not tenable. Under the last paragraph of Section 7, Rule 112 of 1985 Rules on Criminal Procedure, the right to ask for preliminary investigation is recognized even after the case has already been filed, to wit:10

“If the case has been filed in court without a preliminary Investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence to his favor in the manner prescribed in this Rule.”10

“Clearly, the alleged lack of a valid preliminary investigation came only as an afterthought to gain a reversal of the denial of the motion to quash. Sad to say, this last ditch effort came a bit late. His failure to invoke this right below constituted a waiver of such right.10

“x x . .”

Final thoughts

While the right to preliminary investigation is a statutory grant, under the Rules of Court, the right to due process is a fundamental right. Albeit, both rights may be waived, still, in the absence of the latter, the same must be strictly observed. Hence, if not falling under the exception of a requisite preliminary investigation or there is a waiver thereof, a shortcut to court indictment is not permissible and may be deemed as a blatant disregard of such valuable rights.

Consequently, we should not trifle with legal processes in the hope of achieving our own objective and desire to achieve that so-called swift justice, at the expense of disregarding constitutional guarantee or statutory safeguards, which the other party is entitled.

We should be mindful, therefore, that, at the behest of our own proclivities, we may rather become a vehicle of oppression, as we may, in effect, injure other individual’s enshrined rights. These rules of procedures, such as Preliminary Investigation, are designed to promote justice and not to defeat or negate the same.

  1. Criminal Procedure: Rule 112 – Preliminary Investigation[][]
  2. Id.[][][][][][][][][][][][][][]
  3. DO No. 279[]
  4. Id.[][][][][][][][]
  5. Supra., Criminal Procedure: Rule 112 – Preliminary Investigation[][]
  6. Pilapil vs. Sandiganbayan, G. R. No. 101978, April 7, 1993[][]
  7. Ang-Abaya, et al. vs. Ang, G.R. No. 178511, December 4, 2008[]
  8. Ibid. G. R. No. 178511, December 4, 2008[]
  9. Article 6 of the Civil Code of the Philippines[]
  10. Ibid.[][][]

RALB Law | RABR & Associates Law Firm

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