1/11/2016 G.R. No. L2068

http://www.lawphil.net/judjuris/juri1948/oct1948/gr_l2068_1948.html 1/7

Today is Monday, January 11, 2016

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L2068 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.:

The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of Pampangaafter he had been bound over to that court for trial, praying that the record of the case be remanded to the justiceof the peace court of Masantol, the court of origin, in order that the petitioner might crossexamine thecomplainant and her witnesses in connection with their testimony, on the strength of which warrant was issued forthe 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 ofhis motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that investigation, thejustice of the peace informed him of the charges and asked him if he pleaded guilty or not guilty, upon which heentered the plea of not guilty. "Then his counsel moved that the complainant present her evidence so that sheand her witnesses could be examined and crossexamined in the manner and form provided by law." The fiscaland the private prosecutor objected, invoking section 11 of rule 108, and the objection was sustained. "In viewthereof, the accused's counsel announced his intention to renounce his right to present evidence," and the justiceof 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 ofthat waiver he was committed to the corresponding court for trial, is estopped, we are of the opinion that therespondent judge did not act in excess of his jurisdiction or in abuse of discretion in refusing to grant theaccused's motion to return the record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano,G.R. No. L1336, recently promulgated, in which case the respondent justice of the peace had allowed theaccused, over the complaint's objection, to recall the complainant and her witnesses at the preliminaryinvestigation so that they might be crossexamined, we sustained the justice of the peace's order. We said thatsection 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 isnothing in it or any other law restricting the authority, inherent in a court of justice, to pursue a course of actionreasonably calculated to bring out the truth."

But we made it clear that the "defendant can not, as a matter of right, compel the complaint and his witnesses torepeat in his presence what they had said at the preliminary examination before the issuance of the order ofarrest." We called attention to the fact that "the constitutional right of an accused to be confronted by thewitnesses against him does not apply to preliminary hearings' nor will the absence of a preliminary examinationbe an infringement of his right to confront witnesses." As a matter of fact, preliminary investigation may be doneaway with entirely without infringing the constitutional right of an accused under the due process clause to a fairtrial.

The foregoing decision was rendered by a divided court. The minority went farther than the majority and deniedeven any discretion on the part of the justice of the peace or judge holding the preliminary investigation to compelthe complainant and his witnesses to testify anew.

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

1/11/2016 G.R. No. L2068

http://www.lawphil.net/judjuris/juri1948/oct1948/gr_l2068_1948.html 2/7

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 ofMasantol, Pampanga, and after being informed of the criminal charges against him and asked if he pleaded guiltyor not guilty, pleaded not guilty. "Then the counsel for the petitioner moved that the complainant present herevidence so that her witnesses could be examined and crossexamined 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 theobjection was sustained. In view thereof, the accused refused to present his evidence, and the case wasforwarded 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 thecase be remanded to the justice of the peace of Masantol, in order that the petitioner might crossexamine thecomplainant and her witnesses in connection with their testimony. The motion was denied, and for that reason thepresent 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 thejustice of the peace, was not a waiver of his alleged right to be confronted with and crossexamine the witnessesfor 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 ofFirst Instance, counsel for the petitioner filed a motion with said court to remand the case to the Justice of thePeace of Masantol ordering the latter to make said preliminary investigation. His motion having been denied, thepetitioner has filed the present action in which he squarely attacks the validity of the provision of section 11, Rule108, on the ground that it deprives him of the right to be confronted with and crossexamine the witnesses for theprosecution, contrary to the provision of section 13, Article VIII, of the Constitution.

In the case of Dequito and Saling Buhay vs. Arellano, No. L1336, we did not discuss and decide the question ofvalidity or constitutionality of said section 11 in connection with section 1 of Rule 108, because that question wasnot raised therein, and we merely construed the provisions on preliminary investigation or Rule 108. In said casethe writer of this dissenting opinion said:

It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a practisingattorney, was the one who prepared the draft of the Rules of Court relating to criminal procedure, and theprovisions on preliminary investigation in the draft were the same as those of the old law, which gave thedefendant the right to be confronted with and to crossexamine the witnesses for the prosecution. But theSupreme Court approved and adopted in toto the draft, except the part referring to preliminary investigationwhich it modified, by suppressing said right and enacting, in its stead, the provisions of section 11 of Rule108 in its present form. I prefer the old to the new procedure. But I can not subscribe to the majoritydecision, which is a judicial legislation and makes the exercise of the right of a defendant to be confronted,with and crossexamine the witnesses against him, to depend entirely upon the whim or caprice of a judgeor 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 promulgaterules concerning pleading, practice and procedure in all courts, but said rules shall not diminish, increase ormodify substantive rights." The constitution added the last part of the abovequoted constitutional precept in orderto emphasize that the Supreme Court is not empowered, and therefore can not enact or promulgate substantivelaws or rules, for it is obvious that rules which diminish, increase or modify substantive rights, are substantive andnot adjective laws or rules concerning pleading, practice and procedure.

It does not require an elaborate arguments to show that the right granted by law upon a defendant to beconfronted with and crossexamine the witnesses for the prosecuted in preliminary investigation as well as in thetrial of the case is a substantive right. It is based on human experience, according to which a person is not prone

1/11/2016 G.R. No. L2068

http://www.lawphil.net/judjuris/juri1948/oct1948/gr_l2068_1948.html 3/7

to tell a lie against another in his presence, knowing fully well that the latter may easily contradict him, and that thecredibility of a person or veracity of his testimony may be efficaciously tested by a crossexamination. It issubstantive 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 thata crime has been committed and he is guilty thereof, and therefore the accused is entitled to be released and notcommitted to prison, and thus avoid an open and public accusation of crime, the trouble, expense, and anxiety ofa 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 Manilabecause of the usual delay in the final disposition of criminal cases in provinces. The law does not grant such rightto a person charged with offenses triable by the Court of First Instance in the City of Manila, because of thepromptness, actual or presumptive, with which criminal cases are tried and disposed of in the Court of FirstInstance of said city. But this right, though not a constitutional one, can not be modified, abridged, or diminishedby 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 questionof constitutionality or validity of said section had not been squarely raised) do away with the defendant's rightunder 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 witnessesfor the prosecution recalled to testify again in the presence of the defendant and be crossexamined by the latter,does not validate said provision; because to make the exercise of an absolute right discretionary or dependentupon the will or discretion of the court or officer making the preliminary investigation, is evidently to diminish ormodify 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. L1336, wesaid:

In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will notcontravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face toface." (Section 1 [17], Article III.)

Consequently, at the preliminary hearing contemplated by said reglementary section, the defendant isentitled as a matter of fundamental right to her the testimony of the witnesses for the prosecution and tocrossexamine them.

Although in such preliminary hearing the accused cannot finally be convicted, he is liable to endure theordeal eloquently depicted in the decision, and the constitutional guarantee protects defendants, not onlyfrom the jeopardy of being finally convicted and punished, but also from the physical, mental and moralsufferings that may unjustly be visited upon him in any one of the stages of the criminal process institutedagainst him. He must be afforded the opportunities to have the charges against him quashed, not only atthe final hearing, but also at the preliminary investigation, if by confronting the witnesses for the prosecutionhe can convince the court that the charges are groundless. There is no justice in compelling him to undergothe 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 placewithin 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.

Petition dismissed.

R E S O L U T I O N

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. L1336: "The constitutional right of an accused to be confronted by the witnesses against him does not apply topreliminary hearings; nor will the absence of a preliminary examination be an infringement of his right to confront

1/11/2016 G.R. No. L2068

http://www.lawphil.net/judjuris/juri1948/oct1948/gr_l2068_1948.html 4/7

witness. As a matter of fact, preliminary investigation may be done away with entirely without infringing theconstitutional right of an accused under the due process clause to a fair trial." We took this ruling to be ampleenough to dispose the constitutional question pleaded in the application for certiorari. Heeding the wishes of thepetitioner, we shall enlarge upon the subject.

It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13, Article VIII, of theConstitution. 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 anadjective law and not a substantive law or substantive right. Substantive law creates substantive rights and thetwo terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rightswhich one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J., 980.) Substantivelaw is that part of the law which creates, defines and regulates rights, or which regulates the rights and dutieswhich give rise to a cause of action; that part of the law which courts are established to administer; as opposed toadjective 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 thepunishment for committing them, as distinguished from the procedural law which provides or regulates the stepsby which one who commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently andessentially remedial; it is the first step taken in a criminal prosecution.

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence — which is the "the mode and mannerof proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicialproceedings" — is identified with and forms part of the method by which, in private law, rights are enforced andredress 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 beenincorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional groundswithout 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 betransgressed 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 whichoperate to deny to the accused a defense available under the laws in force at the time of the commission ofhis offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within theconstitutional 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 thatstatutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of adefense and which operate only in a limited and unsubstantial manner to his disadvantage, are notprohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at thetrial, 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 whichchanges the rules of evidence after the indictment so as to render admissible against the accused evidencepreviously 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 acourt 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 preliminaryinvestigation to crossexamine the witnesses who had given evidence for his arrest is of such importance as tooffend against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not anessential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction ofthe 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 crossexamine witnesses in a preliminaryinvestigation, his right to present his witnesses remains unaffected, and his constitutional right to be informed ofthe charges against him both at such investigation and at the trial is unchanged. In the latter stage of theproceedings, the only stage where the guaranty of due process comes into play, he still enjoys to the full extentthe right to be confronted by and to crossexamine the witnesses against him. The degree of importance of apreliminary 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 issomewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a

1/11/2016 G.R. No. L2068

http://www.lawphil.net/judjuris/juri1948/oct1948/gr_l2068_1948.html 5/7

line in any particular case beyond which legislative power over remedy and procedure can pass without touchingupon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. (Statevs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme Court in making rules should step onsubstantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does notaffect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited andunsubstantial manner to his disadvantage. For the Court's power is not merely to compile, revise or codify therules of procedure existing at the time of the Constitution's approval. This power is "to promulgate rulesconcerning pleading, practice, and procedure in all courts," which is a power to adopt a general, complete andcomprehensive system of procedure, adding new and different rules without regard to their source and discardingold 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 crossexamine the witnesses forthe prosecution in a preliminary investigation granted by law or provided for in General Orders, No. 58, asamended, in force prior to the promulgation of the Rules of Court, is not a substantive right but a mere matter ofprocedure, and therefore this Court can suppress it in section 11, Rule 108, of the Rules of Court, for the followingreasons:

First. Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminalprosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The entire rules ofevidence have been incorporated into the Rules of Court." And therefore "we can not tear down section 11 ofRule 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 suppressedentirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held tofall within the constitutional prohibition."

Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition. Thedifference is somewhat a question of degree" . . . It is difficult to draw a line in any particular case beyond whichlegislative power over remedy and procedure can pass without touching upon the substantive rights of partiesaffected, as it is impossible to fix that boundary by general condition. . . . "This being so, it is inevitable that theSupreme Court in making rules should step on substantive rights, and the Constitution must be presumed totolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprivehim 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 alwayswell understood. Substantive law is that part of the law which creates, defines, and regulates rights as opposed toobjective or procedural law which prescribes the method of enforcing rights. What constitutes practice andprocedure in the law is the mode or proceeding by which a legal right is enforced, "that which regulates the formalsteps in an action or judicial proceedings; the course of procedure in courts; the form, manner and order in whichproceedings have been, and are accustomed to be had; the form, manner and order of carrying on andconducting suits or prosecutions in the courts through their various sages according to the principles of law andthe 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 areprovisions which create, define and regulate substantive rights, and many of those provisions such as thoserelating to guardianship, adoption, evidence and many others are incorporated in the Rules of Court for the sakeof convenience and not because this Court is empowered to promulgate them as rules of court. And our old law ofCriminal Procedure General Orders No. 58 grants the offended party the right to commence a criminal action orfile a complaint against the offender and to intervene in the criminal prosecution against him, and grants thedefendant in the Court of First Instance (except in the City of Manila) the right to bail, and to a preliminaryinvestigation including his rights during said investigation, and the rights at the trial, which are now reproduced orincorporated in Rules 106, 108, 110, and 111 of the Rules of Court, except the rights now in question. And allthese, and others not necessary for us to mention, are obviously substantive rights.

(1) As to the first argument, the premise "the preliminary investigation is eminently and essentially remedial is not

1/11/2016 G.R. No. L2068

http://www.lawphil.net/judjuris/juri1948/oct1948/gr_l2068_1948.html 6/7

correct. Undoubtedly the majority means to say procedural, in line with the conclusion in the resolution, becauseremedial 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 statutegiving a party a mode of remedy for a wrong where he had none or a different one before. . . . Remedial statutesare those which are made to supply such defects, and abridge such superfluities in the common law, as ariseeither from the general imperfections of all human law, from change of time and circumstances, from the mistakesand 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 ofevidence and therefore is also procedural." In the first place, the provisions of said section to the effect that "thedefendant, after the arrest and his delivery to the court has the right to be informed of the complaint orinformation filed against him, and also to be informed of the testimony and evidence presented against him, andmay 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 lawchiefly 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 ofthe 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 totestify as a witness be considered procedural?

Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on constitutionalgrounds without throwing out the whole code of evidence embodied in these Rules," is evidently wrong, not onlyfor the reason just stated, but because our contention that the defendant can not be deprived of his right to beconfronted with and crossexamine the witness of the prosecution is a preliminary investigation underconsideration would not, if upheld, necessarily tear down said section. Our theory, is that said section 11 shouldbe so construed as to be valid and effective, that is, that if the defendant asks the court to recall the witness orwitnesses 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 thedefendant does not so ask the court, he should be considered as waiving his right to be confronted with andcrossexamine the witness against him.

(2) With respect to the second argument or reason, it is true that the preliminary investigation as provided for inthe General Orders, No. 58, as amended, is not an essential part of due process of law, because "due process oflaw" is not iron clad in its meaning; its does not necessarily mean a particular procedure. Due process of lawsimply requires a procedure that fully protects the life, liberty and property. For that reason the investigation to bemade 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 lawconstitutional requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is alsotrue that we have already and correctly held that: "The law having explicitly recognized and established that noperson charged with the commission of a crime shall be deprived of his liberty or subjected to trial without priorpreliminary investigation (provided for in General orders, No. 58, as amended) that shall show that there arereasonable 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 convictedwithout the 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 thepresent case, for the question involved therein was the power of Congress to alter the rules of evidence andprocedure without violating the constitutional precept that prohibits the passing of ex post facto law, while thequestion herein involved is the power of the Supreme Court to promulgate rules of pleading, practice andprocedure, which diminish the substantive right of a defendant, expressly prohibited by the same provision of theConstitution 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 firstreason, remedy and procedure are two completely different things.

As above defined, substantive law is clearly differentiated from procedural law and practice. But even assumingarguendo that it is difficult to draw the line in any particular case beyond which the power of the court overprocedure can not pass without touching upon the substantial right of the parties, what this Court should do in thatcase would be to abstain from promulgating such rule of procedure which many increase, diminish or modifysubstantive right in order to avoid violating the constitutional prohibition above referred to. Because as thisSupreme Court is not empowered by the Constitution to legislate on or abrogate substantive rights, but only to

1/11/2016 G.R. No. L2068

http://www.lawphil.net/judjuris/juri1948/oct1948/gr_l2068_1948.html 7/7

promulgate rules of pleading, practice and procedure which "shall not diminish, increase or modify substantiverights," this Court can not step on them in making the rules, and the Constitution must be presumed not totolerate 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 crossexamine the witness against him in apreliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and arbitrarymanner. The testimony of a witness given in the absence of the defendant and without an opportunity on the partof the latter to crossexamine him is a hearsay evidence, and it should not be admitted against the defendant in apreliminary investigation that is granted to the latter as a protection against hasty, malicious and oppressiveprosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an accused who is innocent and should not bearrested, or if arrested should be released immediately a short time after his arrest after the preliminaryinvestigation, would have to be held for trial and wait for a considerable period of time until the case is tried andacquitted after trial by the Courts of First Instance in provinces on account of the admission of such evidence inthe preliminary investigation, evidence not admissible at the trial.

Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of themajority 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

TUASON, J.:

1 Rights of defendant after arrest. — After the arrest of the defendant and his delivery to the court, heshall be informed of the complaint or information filed against him. He shall also be informed of thesubstance of the testimony and evidence presented against him, and, if he desires to testify or to presentwitnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not bereduced 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, andprocedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts ofthe same grade and shall not diminish, increase, or modify substantive rights. The existing laws onpleading, 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 havethe power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and theadmission to the practice of law in the Philippines.

The Lawphil Project Arellano Law Foundation