"x x x.
a. Rule 65 is the proper remedy to assail the DOJ’s determination of the presence or absence of probable cause
The respondents claim that a petition for review under Rule 43 is the proper remedy in questioning the assailed DOJ resolutions.
The respondents are mistaken.
By weighing the evidence submitted by the parties in a preliminary investigation and by making an independent assessment thereof, an investigating prosecutor is, to that extent, performing functions of a quasi-judicial nature in the conduct of a preliminary investigation. However, since he does not make a determination of the rights of any party in the proceeding, or pronounce the respondent’s guilt or innocence (thus limiting his action to the determination of probable cause to file an information in court),[102] an investigating prosecutor’s function still lacks the element of adjudication[103] essential to an appeal under Rule 43.
Additionally, there is a “compelling reason” to conclude that the DOJ’s exclusion from the enumeration of quasi-judicial agencies in Rule 43 of the Rules of Court is deliberate. In Orosa v. Roa,[104] we observed:
There is compelling reason to believe, however, that the exclusion of the DOJ from the list is deliberate, being in consonance with the constitutional power of control lodged in the President over executive departments, bureaus and offices. This power of control, which even Congress cannot limit, let alone withdraw, means the power of the Chief Executive to review, alter, modify, nullify, or set aside what a subordinate, e.g., members of the Cabinet and heads of line agencies, had done in the performance of their duties and to substitute the judgment of the former for that of the latter.
Being thus under the control of the President, the Secretary of Justice, or, to be precise, his decision is subject to review of the former. In fine, recourse from the decision of the Secretary of Justice should be to the President, instead of the CA, under the established principle of exhaustion of administrative remedies. x x x. Notably, Section 1 x x x of Rule 43 includes the Office of the President in the agencies named therein, thereby accentuating the fact that appeals from rulings of department heads must first be taken to and resolved by that office before any appellate recourse may be resorted to. [citations omitted, emphasis ours]
However, Memorandum Circular No. 58[105] of the Office of the President bars an appeal from the decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal cases viaa petition for review, except for those involving offenses punishable by reclusion perpetua to death.[106]Therefore, a party aggrieved by the DOJ’s resolution - affirming or reversing the finding of the investigating prosecutor in a preliminary investigation involving an offense not punishable by reclusion perpetua to death - cannot appeal to the Office of the President and is left without any plain, speedy and adequate remedy in the ordinary course of the law. This leaves a certiorari petition as the only remedial avenue left.[107] However, the petitioner must allege and show that the DOJ acted with grave abuse of discretion in granting or denying the petition for review.
We also reject the respondents’ allegation that the present petition suffers from a fatal procedural defect for failure to implead the DOJ (or its appropriate official) as an indispensable party.
Unlike a Rule 45 petition, one filed under Rule 65 petition requires the petitioner to implead as public respondent the official or agency[108] whose exercise of a judicial or quasi-judicial function is allegedly tainted with grave abuse of discretion.[109] Contrary to the respondents’ assertion, the petition for certiorari filed by the petitioners with the Court impleaded Usec. Gutierrez, who, as then Justice Undersecretary, issued the assailed resolutions “for the Secretary of Justice.” While the DOJ did not formally enter its appearance in this case, or file any comment or memoranda, the records show that the Court issued resolutions, addressed to the DOJ as a party, to submit the appropriate responsive pleadings.[110] As an extraordinary remedy, Rule 65 of the Rules of Court does not require that summons be issued to the respondent; the service upon him of an order to file its Comment or Memorandum is sufficient.[111]
x x x."
