Bustos vs. Lucero, G.R. No. L-2068, October 20, 1948

1/17/23, 8:12 AM PHILIPPINE REPORTS ANNOTATED VOLUME 081
[No. L-2068. October 20, 1948]
DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G.

LUCERO, Judge of First Instance of Pampanga,
respondent.
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 tight 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
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VOL. 81, OCTOBER 20, 1948 641
Bustos vs. Lucero
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
https://central.com.ph/sfsreader/session/00000185bd1315d09ca881e7000d00d40059004a/p/ASC655/?username=Guest 1/19
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.
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 enf orced and
redress obtained, and, in criminal law, a law transgressor
is punished. Criminal procedure refers to pleading,
evidencea nd practice. (State vs. Capaci, 164 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
crossexamine 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
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642 PHILIPPINE REPORTS ANNOTATED
Bustos vs. Lucero
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.
9. WORDS AND PHRASES; “REMEDY" AND

“SUBSTANTIVE RIGHT" EX-PLAINED 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 def ense, 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.
ORIGINAL ACTION in the Supreme Court. Certiorari and

mandamus.
The facts are stated in the opinion of the court.
E.M. Banzali for petitioner.
Acting Provincial Fiscal Albino L. Figueroa and
Assistant Provincial Fiscal Marcelo L. Mallari for
respondent.
TUASON, J.:
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,
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Bustos vs. Lucero
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 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
crossexamined 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
crossexamined, 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
inves-
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Bustos vs. Lucero
tigation, 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 f act, 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.
Moran, C.J., Parás, Pablo, Bengzon, and Briones, JJ.,

concur.
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
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Bustos vs. Lucero
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 f orwarded to the Court of First
Instance, counsel f or 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 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
646

Bustos vs. Lucero
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 .1.08 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
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Bustos vs. Lucero
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.
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
righ tunder 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.
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Bustos vs. Lucero
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.)
“Consequently, at the preliminary hearing contemplated by
said reglementary section, the defendant is entitled as a matter of
fun.damental 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.
Petition dismissed.
RESOLUTION ON A MOTION FOR

RECONSIDERATION
March 8, 1949
TUASON, J.;
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
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Bustos vs. Lucero
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
1 that section 11 of Rule 108 of the Rules of
Court infringes
2 section 13, Article VIII, of the
Constitution. 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
_________________
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, 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.
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Bustos vs. Lucero
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
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, 湥獴 L. ed., 648, 650; Cummings vs.
Missouri, 4 Wall. 277, 826, 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
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Bustos vs. Lucero
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 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.
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Bustos vs. Lucero
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., 11020 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 def ense, 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., Parás, 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:
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Bustos vs. Lucero
First. Because “preliminary investigation is eminently and

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 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
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Bustos vs. Lucero
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 f or 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 one thing, and
procedural law is another. Obviously they are different

branches of the law. “Remedial statute” is “a statute
providing a remedy for
655
VOL. 81, OCTOBER 20, 1948 655

Bustos vs. Lucero
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 def ects, 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 inf ormed 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 proof fs 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?
Theref ore, 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
656

Bustos vs. Lucero
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 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
crossexamine 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.
(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 ully protects the lif e, 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
657
VOL. 81, OCTOBER 20, 1948 657

Bustos vs. Lucero
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 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
658

Teves vs. Sindiong
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.
Motion denied.
_________________
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Bustos vs. Lucero, G.R. No. L-2068, October 20, 1948

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Bustos vs. Lucero, G.R. No. L-2068, October 20, 1948

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1/17/23, 8:12 AM PHILIPPINE REPORTS ANNOTATED VOLUME 081

[No. L-2068. October 20, 1948]

DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G.

1. CRIMINAL PROCEDURE; PRELIMINARY

2. CRIMINAL PROCEDURE, RULES OF; SECTION 11 OF

3. ID.; SUBSTANTIVE LAW AND ADJECTIVE LAW,

VOL. 81, OCTOBER 20, 1948 641

Bustos vs. Lucero

relations. (60 C.J., 980.) Substantive law is that part of

cause of action; that part of the law which courts are

4. ID.; ID.—As applied to criminal law, substantive law is

5. ID.; PRELIMINARY INVESTIGATION AS REMEDIAL

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

7. ID.; PRELIMINARY INVESTIGATION; CURTAILMENT

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

preliminary investigation, his right to present his -

642 PHILIPPINE REPORTS ANNOTATED

Bustos vs. Lucero

and at the trial is unchanged. In the latter stage of the

9. WORDS AND PHRASES; “REMEDY" AND

10. CONSTITUTIONAL LAW; SUPREME COURT; EXTENT

ORIGINAL ACTION in the Supreme Court. Certiorari and

The petitioner herein, an accused in a criminal case, filed a

VOL. 81, OCTOBER 20, 1948 643

in order that the petitioner might cross-examine the

644 PHILIPPINE REPORTS ANNOTATED

tigation, there is nothing in it or any other law restricting

Moran, C.J., Parás, Pablo, Bengzon, and Briones, JJ.,

FERIA, J., dissenting:

I am sorry to dissent from the decision.

VOL. 81, OCTOBER 20, 1948 645

was sustained. In view thereof, the accused refused to

validity or constitutionality of said section 11 in connection

646 PHILIPPINE REPORTS ANNOTATED

procedure, and the provisions on preliminary investigation in the

experience, according to which a person is not prone to tell

VOL. 81, OCTOBER 20, 1948 647

favor, that the testimonies of the witnesses for the

presence of the defendant and be cross-examined by the

648 PHILIPPINE REPORTS ANNOTATED

Petition is therefore granted.

PERFECTO, J., dissenting:

In our concurring and dissenting opinion in the case of

“In our opinion, section 11 of Rule 108 must be read, interpreted,

On the strength of the above quoted opinion the petition

RESOLUTION ON A MOTION FOR

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

VOL. 81, MARCH 8, 1948 649

the witnesses against him does not apply to preliminary

1 Rights of defendant after arrest.—After the arrest of the defendant

650 PHILIPPINE REPORTS ANNOTATED

of normal relations. (60 C.J., 980.) Substantive law is that

“Expressions are to be found in earlier judicial opinions to the

VOL. 81, OCTOBER 20, 1948 651

procedural changes which operate to deny to the accused a

Tested by this standard, we do not believe that the

formerly enjoyed thereunder can not be held to fall within

652 PHILIPPINE REPORTS ANNOTATED

The degree of importance of a preliminary investigation to

Moran, C.J., Parás, Pablo, Bengzon, Briones, and

FERIA, J., dissenting:

VOL. 81, OCTOBER 20, 1948 653

First. Because “preliminary investigation is eminently and

law which creates, defines, and regulates rights as opposed