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.

SYLLABUS

1. CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;

RIGHT OF CONFRONTATION NOT APPLICABLE TO PRELIMINARY
INVESTIGATION. — 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. (Dequito and Saling Buhay vs. Arellano, L-1336, May 28, 1948.)

2. CRIMINAL PROCEDURE, RULES OF; SECTION 11 OF RULES 108

AS AN ADJECTIVE LAW. — Section 11 of Rule 108, like its predecessors, is an
adjective law and not a substantive law or substantive right.

3. ID.; SUBSTANTIVE LAW AND ADJECTIVE LAW, DEFINED AND

DISTINGUISHED. — 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.
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 4. ID.; ID.; — 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.

5. ID.; PRELIMINARY INVESTIGATION AS REMEDIAL IN NATURE.

— Preliminary investigation is eminently and essentially remedial; it is the first step
taken in a criminal prosecution.

6. ID.; SECTION 11 OF RULE 108 AS PROCEDURAL. — As a rule of

evidence, section 11 of Rule 108 is also procedural. Evidence — which is "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.

7. ID.; PRELIMINARY INVESTIGATION; CURTAILMENT OF

ACCUSED'S RIGHT TO CROSS-EXAMINE WITNESSES, EFFECT OF. — 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 not of such importance as to
offend against the constitutional inhibition. 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.

8. ID.; ID.; DENIAL OF ACCUSED TO CROSS-EXAMINE

WITNESSES, DUE PROCESS OF LAW IS NOT INFRINGED BY. — 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.

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 9. WORDS AND PHRASES; "REMEDY" AND "SUBSTANTIVE
RIGHT" EXPLAINED AND DISTINGUISHED. — 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.

10. CONSTITUTIONAL LAW; SUPREME COURT; EXTENT AND

SCOPE OF THE POWER TO PROMULGATE RULES OF PLEADING AND
PRACTICE. — 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.

DECISION

TUASON, J : p

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.

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

Court or 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
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 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.

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."

But we made it clear that the "defendant can not, as a matter of right, compel
the complainant 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.

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.

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

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

Separate Opinions

FERIA, J., dissenting:

I am sorry to dissent from the decision.

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.

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.

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.

In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not
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 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 of 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.

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.

It does not require an elaborate argument to show that the right granted by law
upon a defendant to be confronted with and cross- examine the witnesses for the
prosecution 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 a 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
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 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.

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.

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.

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.

Petition is therefore granted.

PERFECTO, J., dissenting:

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.)

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 "Consequently, at the preliminary hearing contemplated by said
reglementary section, the defendant is entitled as a matter of fundamental right
to hear the testimony of the witnesses for the prosecution and to cross-examine
them.

"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 petition should be granted and
so we vote.

RESOLUTION ON A MOTION FOR RECONSIDERATION

March 8, 1949

TUASON, J : p

This cause is now before us on a motion for reconsideration.

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.

It is contended that section 11 of Rule 108 of the Rules of Court 1(1) infringes
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 section 13, Article VIII, of the Constitution. 2(2) It is said that the rule in question
deals with substantive matters and impairs substantive rights.

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.)

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.

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

which is "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.

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 Sup. 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
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 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 now 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.

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.

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,
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 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.

The motion is denied.

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

FERIA, J., dissenting:

I dissent.

The motion for reconsideration must be granted.

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:

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."

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."

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
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 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."

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 stages
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.

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.

(1) As to the first argument, the premise "that 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
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 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.)

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?

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 in s
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
Copyright 1994-2018 CD Technologies Asia, Inc. Jurisprudence 1901 to 2018 13
 the witness against him.

(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; it 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 due process of law," (United States vs. Banzuela, 31 Phil.,
564).

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.

(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.

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 may
Copyright 1994-2018 CD Technologies Asia, Inc. Jurisprudence 1901 to 2018 14
 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.

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.

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.:

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

Footnotes
1. Rights of defendant after arrest. — After the arrest of the defendant and his 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.
2. The Supreme Court shall have the power to promulgate rules concerning pleading,
Copyright 1994-2018 CD Technologies Asia, Inc. Jurisprudence 1901 to 2018 15
 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.

Copyright 1994-2018 CD Technologies Asia, Inc. Jurisprudence 1901 to 2018 16

 Endnotes

1 (Popup - Popup)
1. Rights of defendant after arrest. — After the arrest of the defendant and his 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.

2 (Popup - Popup)
2. The Supreme Court shall have the power to promulgate rules concerning 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.

Copyright 1994-2018 CD Technologies Asia, Inc. Jurisprudence 1901 to 2018 17