EN BANC

G.R. No. L-2068 October 20, 1948

DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First

Instance of Pampanga, Respondent.

E. M. Banzali for petitioner.

Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L.
Mallari for respondent

TUASON, J.: chanrobles v irt ual law l ibra ry

The petitioner herein, an accused in a criminal case, filed a motion with the Court of
First Instance of Pampanga after he had been bound over to that court for trial, praying
that the record of the case be remanded to the justice of the peace court of Masantol,
the court of origin, in order that the petitioner might cross-examine the complainant
and her witnesses in connection with their testimony, on the strength of which warrant
was issued for the arrest of the accused. The motion was denied and that denial is the
subject matter of this proceeding. chanroblesv irt ualawli bra ry chan roble s virtual law lib rary

According to the memorandum submitted by the petitioner's attorney to the Court of

First Instance in support of his motion, the accused, assisted by counsel, appeared at
the preliminary investigation. In that investigation, the justice of the peace informed
him of the charges and asked him if he pleaded guilty or not guilty, upon which he
entered the plea of not guilty. "Then his counsel moved that the complainant present
her evidence so that she and her witnesses could be examined and cross-examined in
the manner and form provided by law." The fiscal and the private prosecutor objected,
invoking section 11 of rule 108, and the objection was sustained. "In view thereof, the
accused's counsel announced his intention to renounce his right to present evidence,"
and the justice of the peace forwarded the case to the court of first instance. chanroblesvi rtua lawlib rary c hanrobles vi rt ual law li bra ry

Leaving aside the question whether the accused, after renouncing his right to present
evidence, and by reason of that waiver he was committed to the corresponding court
for trial, is estopped, we are of the opinion that the respondent judge did not act in
excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's
motion to return the record for the purpose set out therein. In Dequito and Saling
Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the
respondent justice of the peace had allowed the accused, over the complaint's
objection, to recall the complainant and her witnesses at the preliminary investigation
so that they might be cross-examined, we sustained the justice of the peace's order.
We said that section 11 of Rule 108 does not curtail the sound discretion of the justice
of the peace on the matter. We said that "while section 11 of Rule 108 defines the
bounds of the defendant's right in the preliminary investigation, there is nothing in it or
any other law restricting the authority, inherent in a court of justice, to pursue a course
of action reasonably calculated to bring out the truth." chanrobles vi rt ual law li bra ry

But we made it clear that the "defendant can not, as a matter of right, compel the
complaint and his witnesses to repeat in his presence what they had said at the
preliminary examination before the issuance of the order of arrest." We called attention
to the fact that "the constitutional right of an accused to be confronted by the witnesses
against him does not apply to preliminary hearings' nor will the absence of a
preliminary examination be an infringement of his right to confront witnesses." As a
matter of fact, preliminary investigation may be done away with entirely without
infringing the constitutional right of an accused under the due process clause to a fair
trial.
chanroble svirtualawl ibra ry chan rob les vi rtual law lib rary

The foregoing decision was rendered by a divided court. The minority went farther than
the majority and denied even any discretion on the part of the justice of the peace or
judge holding the preliminary investigation to compel the complainant and his
witnesses to testify anew. chanrob lesvi rtualaw lib rary c hanro bles vi rtua l law lib ra ry

Upon the foregoing considerations, the present petition is dismissed with costs against
the petitioner.

Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.

Separate Opinions

FERIA, J., dissenting: chanrob les virtual law l ibra ry

I am sorry to dissent from the decision. chanroblesvi rt ualawlib ra ry chan roble s virtual law l ibra ry

The petitioner in the present case appeared at the preliminary investigation before the
Justice of the Peace of Masantol, Pampanga, and after being informed of the criminal
charges against him and asked if he pleaded guilty or not guilty, pleaded not guilty.
"Then the counsel for the petitioner moved that the complainant present her evidence
so that her witnesses could be examined and cross-examined in the manner and form
provided by law." The fiscal and the private prosecutor objected to petitioner's motion
invoking section 11, Rule 108, and the objection was sustained. In view thereof, the
accused refused to present his evidence, and the case was forwarded to the Court of
First Instance of Pampanga. chanroblesvi rtua lawlib rary chan robles v irt ual law l ibra ry

The counsel for the accused petitioner filed a motion with the Court of First Instance
praying that the record of the case be remanded to the justice of the peace of Masantol,
in order that the petitioner might cross-examine the complainant and her witnesses in
connection with their testimony. The motion was denied, and for that reason the
present special civil action of mandamus was instituted. chanroblesv irt ualawli bra ry chan roble s virtual law l ib rary

It is evident that the refusal or waiver of the petitioner to present his evidence during
the investigation in the justice of the peace, was not a waiver of his alleged right to be
confronted with and cross-examine the witnesses for the prosecution, that is, of the
preliminary investigation provided for in General Order No. 58 and Act No. 194, to
which he claims to be entitled, as shown by the fact that, as soon as the case was
forwarded to the Court of First Instance, counsel for the petitioner filed a motion with
said court to remand the case to the Justice of the Peace of Masantol ordering the latter
to make said preliminary investigation. His motion having been denied, the petitioner
has filed the present action in which he squarely attacks the validity of the provision of
section 11, Rule 108, on the ground that it deprives him of the right to be confronted
with and cross-examine the witnesses for the prosecution, contrary to the provision of
section 13, Article VIII, of the Constitution.
chanroble svirtualawl ibra ry chanrob les vi rtua l law lib rary

In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss
and decide the question of validity or constitutionality of said section 11 in connection
with section 1 of Rule 108, because that question was not raised therein, and we
merely construed the provisions on preliminary investigation or Rule 108. In said case
the writer of this dissenting opinion said:

It may not be amiss to state that, modesty aside, the writer of this dissenting opinion,
then a practising attorney, was the one who prepared the draft of the Rules of Court
relating to criminal procedure, and the provisions on preliminary investigation in the
draft were the same as those of the old law, which gave the defendant the right to be
confronted with and to cross-examine the witnesses for the prosecution. But the
Supreme Court approved and adopted in toto the draft, except the part referring to
preliminary investigation which it modified, by suppressing said right and enacting, in
its stead, the provisions of section 11 of Rule 108 in its present form. I prefer the old to
the new procedure. But I can not subscribe to the majority decision, which is a judicial
legislation and makes the exercise of the right of a defendant to be confronted, with
and cross-examine the witnesses against him, to depend entirely upon the whim or
caprice of a judge or officer conducting the preliminary investigation.

But now the question of the validity of said section 11, Rule 108, is squarely presented
to this Court for decision, we have perforce to pass upon it. chanroble svirtualawl ibra ry cha nrob les vi rtua l law lib rary

Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall
have power to promulgate rules concerning pleading, practice and procedure in all
courts, but said rules shall not diminish, increase or modify substantive rights." The
constitution added the last part of the above-quoted constitutional precept in order to
emphasize that the Supreme Court is not empowered, and therefore can not enact or
promulgate substantive laws or rules, for it is obvious that rules which diminish,
increase or modify substantive rights, are substantive and not adjective laws or rules
concerning pleading, practice and procedure. chanroblesvirtualawl ibra ry cha nrob les vi rtual law lib rary

It does not require an elaborate arguments to show that the right granted by law upon
a defendant to be confronted with and cross-examine the witnesses for the prosecuted
in preliminary investigation as well as in the trial of the case is a substantive right. It is
based on human experience, according to which a person is not prone to tell a lie
against another in his presence, knowing fully well that the latter may easily contradict
him, and that the credibility of a person or veracity of his testimony may be
efficaciously tested by a cross-examination. It is substantive right because by
exercising it, an accused person may show, even if he has no evidence in his favor, that
the testimonies of the witnesses for the prosecution are not sufficient to indicate that
there is a probability that a crime has been committed and he is guilty thereof, and
therefore the accused is entitled to be released and not committed to prison, and thus
avoid an open and public accusation of crime, the trouble, expense, and anxiety of a
public trial, and the corresponding anxiety or moral suffering which a criminal
prosecution always entails. chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry

This right is not a constitutional but a statutory right granted by law to an accused
outside of the City of Manila because of the usual delay in the final disposition of
criminal cases in provinces. The law does not grant such right to a person charged with
offenses triable by the Court of First Instance in the City of Manila, because of the
promptness, actual or presumptive, with which criminal cases are tried and disposed of
in the Court of First Instance of said city. But this right, though not a constitutional one,
can not be modified, abridged, or diminished by the Supreme Court, by virtue of the
rule making power conferred upon this Court by the Constitution. chanroblesv irtualawli bra ry ch anroble s virtual law l ib rary

Since the provisions of section 11 of Rule 108 as construed by this Court in several
cases, (in which the question of constitutionality or validity of said section had not been
squarely raised) do away with the defendant's right under discussion, it follows that
said section 11 diminishes the substantive right of the defendant in criminal case, and
this Court has no power or authority to promulgate it and therefore is null and void.
virtua l law lib rary
chanroblesvi rtualaw lib rary c hanro bles

The fact that the majority of this Court has ruled in the above cited case of Dequito and
Saling Buhay vs. Arellano, that the inferior or justice of the peace courts have discretion
to grant a defendant's request to have the witnesses for the prosecution recalled to
testify again in the presence of the defendant and be cross-examined by the latter,
does not validate said provision; because to make the exercise of an absolute right
discretionary or dependent upon the will or discretion of the court or officer making the
preliminary investigation, is evidently to diminish or modify it. chanroblesvi rtua lawlib rary c han robles v irt ual law li bra ry

Petition is therefore granted.

PERFECTO, J., dissenting: chanrobles vi rtual law lib rary

In our concurring and dissenting opinion in the case of Dequito and Saling Buhay
vs. Arellano, No. L-1336, we said:

In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way
that will not contravene the constitutional provision guaranteeing to all accused the
right "to meet the witnesses face to face." (Section 1 [17], Article III.) chanroble s virtual law lib rary

Consequently, at the preliminary hearing contemplated by said reglementary section,

the defendant is entitled as a matter of fundamental right to her the testimony of the
witnesses for the prosecution and to cross-examine them. chanroblesvi rtua lawlib rary c hanrobles vi rt ual law li bra ry

Although in such preliminary hearing the accused cannot finally be convicted, he is

liable to endure the ordeal eloquently depicted in the decision, and the constitutional
guarantee protects defendants, not only from the jeopardy of being finally convicted
and punished, but also from the physical, mental and moral sufferings that may
unjustly be visited upon him in any one of the stages of the criminal process instituted
against him. He must be afforded the opportunities to have the charges against him
quashed, not only at the final hearing, but also at the preliminary investigation, if by
confronting the witnesses for the prosecution he can convince the court that the
charges are groundless. There is no justice in compelling him to undergo the troubles of
a final hearing if at the preliminary hearing the case can be terminated in his favor.
Otherwise, the preliminary investigation or hearing will be an empty gesture that should
not have a place within the framework of dignified and solemn judicial proceedings.

On the strength of the above quoted opinion the opinion should be granted and so we
vote.chanroble svirtualawl ibra ry cha nrob les vi rtua l law lib rary

Petition dismissed.

RESOLUTION

March 8, 1949

TUASON, J.: chanrobles v irt ual law l ibra ry

This cause is now before us on a motion for reconsideration. chanroblesv irtualawli bra ry chan roble s virtual law lib rary

In the decision sought to be reconsidered, we said, citing Dequito and Saling

Buhay vs. Arellano, G.R. No. L-1336: "The constitutional right of an accused to be
confronted by the witnesses against him does not apply to preliminary hearings; nor
will the absence of a preliminary examination be an infringement of his right to confront
witness. As a matter of fact, preliminary investigation may be done away with entirely
without infringing the constitutional right of an accused under the due process clause to
a fair trial." We took this ruling to be ample enough to dispose the constitutional
question pleaded in the application for certiorari. Heeding the wishes of the petitioner,
we shall enlarge upon the subject. chanroble svirtualawl ibra ry cha nrob les vi rtua l law lib rary

It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13,
Article VIII, of the Constitution. 2 It is said that the rule in question deals with
substantive matters and impairs substantive rights. chanroblesvi rtua lawlib rary c han robles v irt ual law l ibra ry

We can not agree with this view. We are of the opinion that section 11 of Rule 108, like
its predecessors, is an adjective law and not a substantive law or substantive right.
Substantive law creates substantive rights and the two terms in this respect may be
said to be synonymous. Substantive rights is a term which includes those rights which
one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J.,
980.) Substantive law is that part of the law which creates, defines and regulates
rights, or which regulates the rights and duties which give rise to a cause of action; that
part of the law which courts are established to administer; as opposed to adjective or
remedial law, which prescribes the method of enforcing rights or obtains redress for
their invasion. (36 C. J., 27; 52 C. J. S., 1026.) chanrob les vi rtual law lib rary

As applied to criminal law, substantive law is that which declares what acts are crimes
and prescribes the punishment for committing them, as distinguished from the
procedural law which provides or regulates the steps by which one who commits a
crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently and
essentially remedial; it is the first step taken in a criminal prosecution. chanroble svirtualawl ibra ry cha nrob les vi rtual law lib rary

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is the
"the mode and manner of proving the competent facts and circumstances on which a
party relies to establish the fact in dispute in judicial proceedings" - is identified with
and forms part of the method by which, in private law, rights are enforced and redress
obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers
to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) the
entire rules of evidence have been incorporated into the Rules of Court. We can not tear
down section 11 of Rule 108 on constitutional grounds without throwing out the whole
code of evidence embodied in these Rules. chanroble svirtualawl ibra ry cha nroble s virtual law l ib rary

In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court
said:

Expressions are to be found in earlier judicial opinions to the effect that the
constitutional limitation may be transgressed by alterations in the rules of evidence or
procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs.
Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228,
232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And there may be procedural changes
which operate to deny to the accused a defense available under the laws in force at the
time of the commission of his offense, or which otherwise affect him in such a harsh
and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri,
107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S.,
343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well settled that statutory
changes in the mode of trial or the rules of evidence, which do not deprive the accused
of a defense and which operate only in a limited and unsubstantial manner to his
disadvantage, are not prohibited. A statute which, after indictment, enlarges the class
of persons who may be witnesses at the trial, by removing the disqualification of
persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575,
28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which
changes the rules of evidence after the indictment so as to render admissible against
the accused evidence previously held inadmissible, Thompson vs. Missouri, 171 U. S.,
380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or which changes the place of trial, Gut. vs.
Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal
appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382,
38 L. ed., 485, 487, 14 sup. Ct. Rep., 570.

Tested by this standard, we do not believe that the curtailment of the right of an
accused in a preliminary investigation to cross-examine the witnesses who had given
evidence for his arrest is of such importance as to offend against the constitutional
inhibition. As we have said in the beginning, preliminary investigation is not an
essential part of due process of law. It may be suppressed entirely, and if this may be
done, mere restriction of the privilege formerly enjoyed thereunder can not be held to
fall within the constitutional prohibition.
chanroblesvi rtualaw lib rary cha nro bles vi rtua l law lib ra ry

While section 11 of Rule 108 denies to the defendant the right to cross-examine
witnesses in a preliminary investigation, his right to present his witnesses remains
unaffected, and his constitutional right to be informed of the charges against him both
at such investigation and at the trial is unchanged. In the latter stage of the
proceedings, the only stage where the guaranty of due process comes into play, he still
enjoys to the full extent the right to be confronted by and to cross-examine the
witnesses against him. The degree of importance of a preliminary investigation to an
accused may be gauged by the fact that this formality is frequently waived. chanroble svi rtualawl ib rary cha nrob les vi rtua l law lib rary

The distinction between "remedy" and "substantive right" is incapable of exact

definition. The difference is somewhat a question of degree. (Dexter vs. Edmands, 89
F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular case
beyond which legislative power over remedy and procedure can pass without touching
upon the substantive rights of parties affected, as it is impossible to fix that boundary
by general condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable
that the Supreme Court in making rules should step on substantive rights, and the
Constitution must be presumed to tolerate if not to expect such incursion as does not
affect the accused in a harsh and arbitrary manner or deprive him of a defense, but
operates only in a limited and unsubstantial manner to his disadvantage. For the
Court's power is not merely to compile, revise or codify the rules of procedure existing
at the time of the Constitution's approval. This power is "to promulgate rules
concerning pleading, practice, and procedure in all courts," which is a power to adopt a
general, complete and comprehensive system of procedure, adding new and different
rules without regard to their source and discarding old ones. chanroblesvi rt ualawlib ra ry chan roble s virtual law l ibra ry

The motion is denied.

Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur.

FERIA, J., dissenting: chanrob les virtual law l ibra ry

I dissent.
chanroblesv irt ualawli bra ry chan roble s virtual law lib rary

The motion for reconsideration must be granted. chanroble svi rtualaw lib rary cha nro bles vi rtua l law lib ra ry

According to the resolution, the right of a defendant to be confronted with and cross-
examine the witnesses for the prosecution in a preliminary investigation granted by law
or provided for in General Orders, No. 58, as amended, in force prior to the
promulgation of the Rules of Court, is not a substantive right but a mere matter of
procedure, and therefore this Court can suppress it in section 11, Rule 108, of the Rules
of Court, for the following reasons: chanrobles v irt ual law l ibra ry

First. Because "preliminary investigation is eminently and essentially remedial; it is the

first step taken in a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule
108 is also procedural." . . . "The entire rules of evidence have been incorporated into
the Rules of Court." And therefore "we can not tear down section 11 of Rule 108 on
constitutional grounds without throwing out the whole Code of evidence embodied in
these rules." chanrobles vi rtua l law li bra ry

Secondly. Because, "preliminary investigation is not an essential part of due process of

law. It may be suppressed entirely, and if this may be done, mere restriction of the
privilege formerly enjoyed thereunder can not be held to fall within the constitutional
prohibition." chanrobles vi rtua l law lib ra ry

Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of
exact definition. The difference is somewhat a question of degree" . . . It is difficult to
draw a line in any particular case beyond which legislative power over remedy and
procedure can pass without touching upon the substantive rights of parties affected, as
it is impossible to fix that boundary by general condition. . . . "This being so, it is
inevitable that the Supreme Court in making rules should step on substantive rights,
and the Constitution must be presumed to tolerate if not to expect such incursion as
does not affect the accused in a harsh and arbitrary manner or deprive him of a
defense, but operates only in a limited and unsubstantial manner to his disadvantage."
virtua l law lib rary
chanrobles

Before proceeding it is necessary to distinguish substantive law from procedure, for the
distinction is not always well understood. Substantive law is that part of the law which
creates, defines, and regulates rights as opposed to objective or procedural law which
prescribes the method of enforcing rights. What constitutes practice and procedure in
the law is the mode or proceeding by which a legal right is enforced, "that which
regulates the formal steps in an action or judicial proceedings; the course of procedure
in courts; the form, manner and order in which proceedings have been, and are
accustomed to be had; the form, manner and order of carrying on and conducting suits
or prosecutions in the courts through their various sages according to the principles of
law and the rules laid down by the respective courts." 31 Cyc. Law and Procedure, p.
1153; id., 32, section 405; Rapalje & Lawrence's Law Dictionary; Anderson Law
Dictionary; Bouvier's Law Dictionary. chanroble svi rtualawl ib rary cha nrob les vi rtua l law lib rary

Substantive rights may be created or granted either in the Constitution or in any branch
of the law, civil, criminal, administrative or procedural law. In our old Code of Civil
Procedure, Act No. 190, as amended, there are provisions which create, define and
regulate substantive rights, and many of those provisions such as those relating to
guardianship, adoption, evidence and many others are incorporated in the Rules of
Court for the sake of convenience and not because this Court is empowered to
promulgate them as rules of court. And our old law of Criminal Procedure General
Orders No. 58 grants the offended party the right to commence a criminal action or file
a complaint against the offender and to intervene in the criminal prosecution against
him, and grants the defendant in the Court of First Instance (except in the City of
Manila) the right to bail, and to a preliminary investigation including his rights during
said investigation, and the rights at the trial, which are now reproduced or incorporated
in Rules 106, 108, 110, and 111 of the Rules of Court, except the rights now in
question. And all these, and others not necessary for us to mention, are obviously
substantive rights. chanroblesvi rtua lawlib rary c han robles v irt ual law lib rary

(1) As to the first argument, the premise "the preliminary investigation is eminently
and essentially remedial is not correct. Undoubtedly the majority means to say
procedural, in line with the conclusion in the resolution, because remedial law is one
thing, and procedural law is another. Obviously they are different branches of the law.
"Remedial statute" is "a statute providing a remedy for an injury as distinguished from
a penal statute. A statute giving a party a mode of remedy for a wrong where he had
none or a different one before. . . . Remedial statutes are those which are made to
supply such defects, and abridge such superfluities in the common law, as arise either
from the general imperfections of all human law, from change of time and
circumstances, from the mistakes and unadvised determination of unlearned (or even
learned) judges, or from any other cause whatsoever." (Black's Law Dictionary, third
edition, pp. 1525, 1526.) chanrobles v irt ual law l ibra ry

It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant
after arrest "is a rule of evidence and therefore is also procedural." In the first place,
the provisions of said section to the effect that "the defendant, after the arrest and his
delivery to the court has the right to be informed of the complaint or information filed
against him, and also to be informed of the testimony and evidence presented against
him, and may be allowed to testify and present witnesses or evidence for him if he so
desires," are not rules of evidence; and in the second place, it is evident that most of
the rules of evidence, if not all, are substantive laws that define, create or regulate
rights, and not procedural. "Rules of evidence are substantive rights found in common
law chiefly and growing out of reasoning, experience and common sense of lawyers and
courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing of evidence
and the rules of practice with respect thereto form part of the law of procedure, but the
classification of proofs is sometime determined by the substantive law." (U. S. vs.
Genato, 15 Phil., 170, 176.) How can the law on judicial notice, conclusive as well
as juris tantum presumption, hearsay and best evidence rule, parol evidence rule,
interpretation of documents, competency of a person to testify as a witness be
considered procedural? chanrobles vi rt ual law li bra ry

Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule
108 on constitutional grounds without throwing out the whole code of evidence
embodied in these Rules," is evidently wrong, not only for the reason just stated, but
because our contention that the defendant can not be deprived of his right to be
confronted with and cross-examine the witness of the prosecution is a preliminary
investigation under consideration would not, if upheld, necessarily tear down said
section. Our theory, is that said section 11 should be so construed as to be valid and
effective, that is, that if the defendant asks the court to recall the witness or witnesses
for the prosecution to testify again in his presence, and to allow the former to cross-
examine the latter, the court or officer making the preliminary investigation is under
obligation to grant the request. But if the defendant does not so ask the court, he
should be considered as waiving his right to be confronted with and cross-examine the
witness against him. chanroblesvi rtua lawlib rary chanrob les vi rtua l law lib rary

(2) With respect to the second argument or reason, it is true that the preliminary
investigation as provided for in the General Orders, No. 58, as amended, is not an
essential part of due process of law, because "due process of law" is not iron clad in its
meaning; its does not necessarily mean a particular procedure. Due process of law
simply requires a procedure that fully protects the life, liberty and property. For that
reason the investigation to be made by the City Fiscal of the City of Manila under Act
No. 612, now section 2465 of the Administrative Code, before filing an information, was
considered by this Court as sufficient to satisfy the due process of law constitutional
requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil.,
122). But it is also true that we have already and correctly held that: "The law having
explicitly recognized and established that no person charged with the commission of a
crime shall be deprived of his liberty or subjected to trial without prior preliminary
investigation (provided for in General orders, No. 58, as amended) that shall show that
there are reasonable grounds to believe him guilty, there can be no doubt that the
accused who is deprived of his liberty, tried and sentenced without the proper
preliminary investigation having been made in his regard, is convicted without the
process of law," (United States vs. Banzuela, 31 Phil., 564). chanroblesv irt ualawli bra ry chan roble s virtual law lib rary

The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the
resolution, has no application to the present case, for the question involved therein was
the power of Congress to alter the rules of evidence and procedure without violating the
constitutional precept that prohibits the passing of ex post facto law, while the question
herein involved is the power of the Supreme Court to promulgate rules of pleading,
practice and procedure, which diminish the substantive right of a defendant, expressly
prohibited by the same provision of the Constitution that confers upon this Court the
power to promulgate said rules. chanroblesv irt ualawli bra ry chan roble s virtual law lib rary

(3) The last reason or argument premised on the conclusion that "the distinction
between remedy and 'substantive right' is incapable of exact definition;" indeed "the
difference is somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487), is
immaterial, because, as we have already said in refuting the majority's first reason,
remedy and procedure are two completely different things. chanroblesv irtualawli bra ry chan roble s vi rtual law lib rary

As above defined, substantive law is clearly differentiated from procedural law and
practice. But even assuming arguendo that it is difficult to draw the line in
any particular case beyond which the power of the court over procedure can not pass
without touching upon the substantial right of the parties, what this Court should do in
that case would be to abstain from promulgating such rule of procedure which many
increase, diminish or modify substantive right in order to avoid violating the
constitutional prohibition above referred to. Because as this Supreme Court is not
empowered by the Constitution to legislate on or abrogate substantive rights, but only
to promulgate rules of pleading, practice and procedure which "shall not diminish,
increase or modify substantive rights," this Court can not step on them in making the
rules, and the Constitution must be presumed not to tolerate nor expect such incursion
as would affect the substantive rights of the accused in any manner. chanro blesvi rtua lawlib rary chan robles v irt ual law l ibra ry

Besides, depriving an accused of his right to be confronted and cross-examine the

witness against him in a preliminary investigation would affect the accused not in a
limited and unsubstantial but in a harsh and arbitrary manner. The testimony of a
witness given in the absence of the defendant and without an opportunity on the part of
the latter to cross-examine him is a hearsay evidence, and it should not be admitted
against the defendant in a preliminary investigation that is granted to the latter as a
protection against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and
Kennedy, supra). Otherwise, an accused who is innocent and should not be arrested, or
if arrested should be released immediately a short time after his arrest after the
preliminary investigation, would have to be held for trial and wait for a considerable
period of time until the case is tried and acquitted after trial by the Courts of First
Instance in provinces on account of the admission of such evidence in the preliminary
investigation, evidence not admissible at the trial. chanroblesvi rtua lawlib rary c han robles v irt ual law li bra ry

Therefore, the motion for reconsideration is granted, and after the necessary
proceedings the decision of the majority reversed or modified in accordance with my
dissenting opinion.
 PERFECTO, J.: chanroble s virtual law l ibra ry

We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration
should be granted.

Endnotes:

TUASON, J.:

Rights of defendant after arrest. - After the arrest of the defendant and his
1

delivery to the court, he shall be informed of the complaint or information filed against
him. He shall also be informed of the substance of the testimony and evidence
presented against him, and, if he desires to testify or to present witnesses or evidence
in his favor, he may be allowed to do so. The testimony of the witnesses need not be
reduced to writing but that of the defendant shall be taken in writing and subscribed by
him.chanroble svirtualawl ibra ry cha nrob les vi rtua l law lib rary

The Supreme Court shall have the power to promulgate rules concerning
2

pleading, practice, and procedure in all courts, and the admission to the practice of law.
Said rules shall be uniform for all courts of the same grade and shall not diminish,
increase, or modify substantive rights. The existing laws on pleading, practice, and
procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to
the power of the Supreme Court to alter and modify the same. The National Assembly
shall have the power to repeal, alter, or supplement the rules concerning pleading,
practice, and procedure, and the admission to the practice of law in the Philippines.
DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G. LUCERO, Judge of First
Instance of Pampanga, respondent. G.R. No. L-2068, March 8, 1940,
(RESOLUTION)

As applied to criminal law, substantive law is that which declares what acts are crimes
and prescribes the punishment for committing them, as distinguished from the
procedural law which provides or regulates the steps by which one who commits a
crime is to be punished. Preliminary investigation is eminently and essentially remedial;
it is the first step taken in a criminal prosecution. Tested by this standard, we do not
believe that the curtailment of the right of an accused in a preliminary investigation to
cross-examine the witnesses who had given evidence for his arrest is of such
importance as to offend against the constitutional inhibition. As we have said in the
beginning, preliminary investigation is not an essential part of due process of law. It
may be suppressed entirely, and if this may be done, mere restriction of the privilege
formerly enjoyed thereunder cannot be held to fall within the constitutional prohibition.

FACTS:

In the decision sought to be reconsidered, the Court said "The constitutional right of an
accused to be confronted by the witnesses against him does not apply to preliminary
hearings; nor will the absence of a preliminary examination be an infringement of his
right to confront witness. As a matter of fact, preliminary investigation may be done
away with entirely without infringing the constitutional right of an accused under the
due process clause to a fair trial." This petition for certiorari raises a constitutional
issue.

ISSUE:

Whether or not Section 11 of Rule 108 of the Rules of Court infringes section 13, Article
VIII, of the Constitution/ Whether or not the rule in question deals with substantive
matters and impairs substantive rights. (NO)

RULING:

Section 11 of Rule 108, like its predecessors, is an adjective law and not a substantive
law or substantive right. Substantive law creates substantive rights and the two terms
in this respect may be said to be synonymous. Substantive rights is a term which
includes those rights which one enjoys under the legal system prior to the disturbance
of normal relations. Substantive law is that part of the law which creates, defines and
regulates rights, or which regulates the rights and duties which give rise to a cause of
action; that part of the law which courts are established to administer; as opposed to
adjective or remedial law, which prescribes the method of enforcing rights or obtains
redress for their invasion.

As applied to criminal law, substantive law is that which declares what acts are crimes
and prescribes the punishment for committing them, as distinguished from the
procedural law which provides or regulates the steps by which one who commits a
crime is to be punished. Preliminary investigation is eminently and essentially remedial;
it is the first step taken in a criminal prosecution.

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence — which is

the "the mode and manner of proving the competent facts and circumstances on which
a party relies to establish the fact in dispute in judicial proceedings" — is identified with
and forms part of the method by which, in private law, rights are enforced and redress
obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers
to pleading, evidence and practice. The entire rules of evidence have been incorporated
into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional
grounds without throwing out the whole code of evidence embodied in these Rules.

Tested by this standard, we do not believe that the curtailment of the right of an
accused in a preliminary investigation to cross-examine the witnesses who had given
evidence for his arrest is of such importance as to offend against the constitutional
inhibition. As we have said in the beginning, preliminary investigation is not an
essential part of due process of law. It may be suppressed entirely, and if this may be
done, mere restriction of the privilege formerly enjoyed thereunder can not be held to
fall within the constitutional prohibition

While section 11 of Rule 108 denies to the defendant the right to cross-examine
witnesses in a preliminary investigation, his right to present his witnesses remains
unaffected, and his constitutional right to be informed of the charges against him both
at such investigation and at the trial is unchanged. In the latter stage of the
proceedings, the only stage where the guaranty of due process comes into play, he still
enjoys to the full extent the right to be confronted by and to crossexamine the
witnesses against him. The degree of importance of a preliminary investigation to an
accused may be gauged by the fact that this formality is frequently waived. The motion
is denied.