Section 5. Who must prosecute criminal actions. — All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor, or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court. (Rule 110, Sec. 5, Rules of Court, as amended by A.M. No. 02-2-07-SC, 10 April 2002, effective 1 May 2002, OCA Circular No. 39-2002, 21 August 2002)

 

Who must prosecute criminal actions? 

All criminal actions, commenced by either complaint or by information, shall be prosecuted under the direction and control of a public prosecutor (Rule 110, Sec. 5, Rules of Court). Even if there is a private prosecutor hired by the offended party, the criminal action is still prosecuted under the direction and control of the public prosecutor. 


What is the rationale for this rule?

● The rationale for this rule is that since a criminal offense is an outrage to the sovereignty of the State, it necessarily follows that a representative of the State shall direct and control the prosecution thereof (Chua v. Padillo, G.R. No. 163797, April 24, 2007).

● This mandate is founded on the theory that a crime is a breach of the security and peace of the people at large, an outrage against the very sovereignty of the State. It follows that a representative of the State shall direct and control the prosecution of the offense (Baviera v. Paglinawan, G.R. No. 168380, February 8, 2007).


Who may prosecute the case in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available?

In Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court (OCA Circular No. 39-2002, 21 August 2002).


When may a private prosecutor prosecute a case even in the absence of the public prosecutor?

If the schedule of the public prosecutor does not permit or in case there are no public prosecutors, a private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute the case, subject to the approval of the court. Once so authorized, the private prosecutor shall continue to prosecute the case until the termination of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn (Rule 110, Sec. 5, Rules of Court, as amended by A.M. No. 02-2-07-SC, 10 April 2002, effective 1 May 2002; Pinote v. Judge Ayco, A.M. No. RTJ-05-1944 December 13, 2005).


Presence of a public prosecutor in the trial of criminal cases is necessary

● Violation of criminal laws is an affront to the People of the Philippines as a whole and not merely to the person directly prejudiced, he being merely the complaining witness. It is on this account that the presence of a public prosecutor in the trial of criminal cases is necessary to protect vital state interests, foremost of which is its interest to vindicate the rule of law, the bedrock of peace of the people.

Respondent’s act of allowing the presentation of the defense witnesses in the absence of complainant public prosecutor or a private prosecutor designated for the purpose is thus a clear transgression of the Rules which could not be rectified by subsequently giving the prosecution a chance to cross-examine the witnesses. 

Respondent’s intention to uphold the right of the accused to a speedy disposition of the case, no matter how noble it may be, cannot justify a breach of the Rules. If the accused is entitled to due process, so is the State (Pinote v. Judge Ayco, A.M. No. RTJ-05-1944 December 13, 2005).


What the power to prosecute includes

1. Having been vested by law with the control of the prosecution of criminal cases, the public prosecutor, in the exercise of his functions, has the power and discretion to: (a) determine whether a prima facie case exists; (b) decide which of the conflicting testimonies should be believed free from the interference or control of the offended party; and (c) subject only to the right against self-incrimination, determine which witnesses to present in court (Chua v. Padillo, G.R. No. 163797, April 24, 2007).

2. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute (Salvanera v. People, G.R. No. 143093, May 21, 2007). Not even the Supreme Court can order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The only possible exception to this rule is where there is an unmistakable showing of grave abuse of discretion on the part of the prosecutor (Chua v. Padillo, G.R. No. 163797, April 24, 2007).

3. Public prosecutors are vested with a wide range of discretion, the discretion of whether, what and whom to charge. As such, the prosecuting attorney cannot be compelled to file a particular criminal information (Tupaz v. Office of the Deputy Ombudsman, G.R. No. 212491-92, March 6, 2019).

4. The power to prosecute includes the initial discretion to determine who should be utilized by the government as a state witness G.R. NO. 173022 - January 23, 2007.

5. The prosecution is entitled to conduct its own case and to decide what witnesses to call to support its charges (Ritualo v. People, G.R. No. 178337, June 25, 2009).

6. Prosecutors control and direct the prosecution of criminal offenses, including the conduct of preliminary investigation, subject to review by the Secretary of Justice. Since it is the DOJ which is the government agency tasked to prosecute criminal cases before the trial court, the DOJ is best suited to attest whether a similar or related case has been filed or is pending in another court of tribunal. Acting DOJ Secretary Merceditas N. Gutierrez, being the head of the DOJ, therefore, had the authority to sign the certificate of non-forum shopping for Criminal Case No. 119830, which was filed on behalf of the People of the Philippines [although the criminal action was instituted by a complaint subscribed by the authorized officers of the Securities and Exchange Commission] (Tan v. People, G.R. NO. 173637, April 21, 2009).


Solicitor General

● Under Section 5, Rule 1106 of the Rules of Court, all criminal actions commenced by complaint or Information shall be prosecuted under the direction and control of the public prosecutor. The public prosecutor represents the People of the Philippines in the prosecution of offenses before the metropolitan trial courts, municipal trial courts, municipal circuit trial courts, and regional trial courts. When such criminal actions are brought to the Court of Appeals or this Court, however, it is the Solicitor General who must represent the People of the Philippines, not the public prosecutor. 

Indeed, the Office of the Solicitor General (OSG) is the appellate counsel of the People of the Philippines in all criminal cases. Specifically, it shall represent the Government in all criminal proceedings before the Supreme Court and the Court of Appeals. Thus, as a general rule, if a criminal case is dismissed by the trial court or if there is an acquittal, the appeal on the criminal aspect of the case must be instituted by the Solicitor General on behalf of the State (Concurrence of Justice Lazaro-Javier, Austria v. AAA and BBB, G.R. No. 205275, June 28, 2022). 


Special Prosecutor of the Office of the Ombudsman

● In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. (Republic Act No. 10660, approved April 16, 2015).