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 virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law
library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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:chanrobles virtual law library

I am sorry to dissent from the decision.chanroblesvirtualawlibrary chanrobles virtual

law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

Petition is therefore granted.

PERFECTO, J., dissenting:chanrobles virtual law library

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.)chanrobles virtual
law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

Petition dismissed.

RESOLUTION

March 8, 1949          

TUASON, J.: chanrobles virtual law library

This cause is now before us on a motion for
reconsideration.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.)chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual
law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles
virtual law library

The motion is denied.

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

FERIA, J., dissenting:chanrobles virtual law library

I dissent.chanroblesvirtualawlibrary chanrobles virtual law library

The motion for reconsideration must be granted.chanroblesvirtualawlibrary chanrobles

virtual law library

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 virtual law library

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 virtual law library
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 virtual law library

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."chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law
library

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.chanroblesvirtualawlibrary chanrobles virtual law library

(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 virtual law library

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 virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

(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).chanroblesvirtualawlibrary chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law
library

(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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law
library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.: chanrobles virtual law library

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

Endnotes:

TUASON, J.:

          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.chanroblesvirtualawlibrary chanrobles virtual law library
          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.