G.R. No.

L-2068 October 20, 1948

DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO,

Judge of First Instance of Pampanga, Respondent.

E. M. Banzali for petitioner.

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

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

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

with the Court of First Instance of Pampanga after he had been
bound over to that court for trial, praying that the record of the
case be remanded to the justice of the peace court of Masantol, the
court of origin, in order that the petitioner might cross-examine the
complainant and her witnesses in connection with their testimony,
on the strength of which warrant was issued for the arrest of the
accused. The motion was denied and that denial is the subject
matter of this proceeding. chanro blesvi rtua lawlib rary c hanro bles vi rt ual law li bra ry

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.chanroble svirtualawl ibra ry chan roble s virtual law lib rary

Leaving aside the question whether the accused, after renouncing

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

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.
chan roblesv irtualawli bra ry chan roble s virtual law l ibra ry

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. chanroble svi rtualaw lib rary chan rob les vi rtual law lib rary

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. chanroblesvi rt ualawlib ra ry chanrobles vi rt ual law li bra ry

The petitioner in the present case appeared at the preliminary

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

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.
chanroblesvi rtua lawlib rary c hanro bles vi rtua l law li bra ry

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. chanroblesv irtualawli bra ry chan roble s virtual law l ibra ry
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.chanroblesvi rt ualawlib ra ry chanrobles vi rt ual law li bra ry

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

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. chanroblesvi rt ualawlib ra ry chan robles v irt ual law li bra ry

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.chanrob lesvi rtua lawlib rary cha nrob les vi rtua l law lib rary

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

Petition is therefore granted.

PERFECTO, J., dissenting: chanrobles vi rt ual law li bra ry

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.) c hanrobles vi rt ual law lib rary

Consequently, at the preliminary hearing contemplated by said

reglementary section, the defendant is entitled as a matter of
fundamental right to her the testimony of the witnesses for the
prosecution and to cross-examine them. chanroblesvi rtual awlib rary cha nrob les vi rtua l law lib rary

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. chanroblesvi rtua lawlib rary cha nro bles vi rtua l law lib ra ry

Petition dismissed.

RESOLUTION

March 8, 1949

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

This cause is now before us on a motion for reconsideration. chanroble svirtualawl ibra ry chan roble s virtual law l ibra ry

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. chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry

It is contended that section 11 of Rule 108 of the Rules of

Court 1infringes section 13, Article VIII, of the Constitution. 2 It is
said that the rule in question deals with substantive matters and
impairs substantive rights. chanroble svirtualawl ibra ry chan roble s virtual law l ibra ry

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

As applied to criminal law, substantive law is that which declares

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

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

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

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. SeeCalder 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.
chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry

While section 11 of Rule 108 denies to the defendant the right to

cross-examine witnesses in a preliminary investigation, his right to
present his witnesses remains unaffected, and his constitutional
right to be informed of the charges against him both at such
investigation and at the trial is unchanged. In the latter stage of the
proceedings, the only stage where the guaranty of due process
comes into play, he still enjoys to the full extent the right to be
confronted by and to cross-examine the witnesses against him. The
degree of importance of a preliminary investigation to an accused
may be gauged by the fact that this formality is frequently
waived. chan roblesv irtualawli bra ry chan roble s virtual law l ibra ry

The distinction between "remedy" and "substantive right" is

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

The motion is denied.

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

concur.

FERIA, J., dissenting: chanrob les vi rtual law lib rary

I dissent. chanroblesvi rtua lawlib rary cha nrob les vi rtua l law lib rary

The motion for reconsideration must be granted. chanroble svi rtualawl ib rary chan rob les vi rtual law libra ry

According to the resolution, the right of a defendant to be

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

First. Because "preliminary investigation is eminently and essentially

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

Secondly. Because, "preliminary investigation is not an essential

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

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." chanroble s virtual law l ibra ry

Before proceeding it is necessary to distinguish substantive law from

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

Substantive rights may be created or granted either in the

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

(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 vi rtua l law lib rary

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 tantumpresumption,
hearsay and best evidence rule, parol evidence rule, interpretation
of documents, competency of a person to testify as a witness be
considered procedural? chanrobles v irt ual law l ibra ry

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

(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, isconvicted without the process of law," (United
States vs. Banzuela, 31 Phil., 564).
chanro blesvi rtualaw lib rary cha nrob les vi rtual law lib rary

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

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. chanroble svirtualawl ibra ry chan roble s virtual law l ib rary

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. cha nrob lesvi rtua lawlib rary cha nro bles virtual law lib rary

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 vi rt ual law li b rary

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