Today is Friday, July 26, 2019

Republic of the Philippines

SUPREME COURT

Manila

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.:

The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of
Pampanga after he had been bound over to that court for trial, praying that the record of the case be
remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner
might cross-examine the complainant and her witnesses in connection with their testimony, on the
strength of which warrant was issued for the arrest of the accused. The motion was denied and that
denial is the subject matter of this proceeding.
According to the memorandum submitted by the petitioner's attorney to the Court 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.

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

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

The foregoing decision was rendered by a divided court. The minority went farther than the majority and
denied even any discretion on the part of the justice of the peace or judge holding the preliminary
investigation to compel the complainant and his witnesses to testify anew.
Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner.

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

Separate Opinions

FERIA, J., dissenting:

I am sorry to dissent from the decision.

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

The counsel for the accused petitioner filed a motion with the Court of First Instance praying that the
record of the case be remanded to the justice of the peace of Masantol, in order that the petitioner
might cross-examine the complainant and her witnesses in connection with their testimony. The motion
was denied, and for that reason the present special civil action of mandamus was instituted.

It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation in
the justice of the peace, was not a waiver of his alleged right to be confronted with and cross-examine
the witnesses for the prosecution, that is, of the preliminary investigation provided for in General Order
No. 58 and Act No. 194, to which he claims to be entitled, as shown by the fact that, as soon as the case
was forwarded to the Court of First Instance, counsel for the petitioner filed a motion with said court to
remand the case to the Justice of the Peace of Masantol ordering the latter to make said preliminary
investigation. His motion having been denied, the petitioner has filed the present action in which he
squarely attacks the validity of the provision of section 11, Rule 108, on the ground that it deprives him
of the right to be confronted with and cross-examine the witnesses for the prosecution, contrary to the
provision of section 13, Article VIII, of the Constitution.

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

Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have power to
promulgate rules concerning pleading, practice and procedure in all courts, but said rules shall not
diminish, increase or modify substantive rights." The constitution added the last part of the above-
quoted constitutional precept in order to emphasize that the Supreme Court is not empowered, and
therefore can not enact or promulgate substantive laws or rules, for it is obvious that rules which
diminish, increase or modify substantive rights, are substantive and not adjective laws or rules
concerning pleading, practice and procedure.
It does not require an elaborate 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.

This right is not a constitutional but a statutory right granted by law to an accused outside of the City of
Manila because of the usual delay in the final disposition of criminal cases in provinces. The law does not
grant such right to a person charged with offenses triable by the Court of First Instance in the City of
Manila, because of the promptness, actual or presumptive, with which criminal cases are tried and
disposed of in the Court of First Instance of said city. But this right, though not a constitutional one, can
not be modified, abridged, or diminished by the Supreme Court, by virtue of the rule making power
conferred upon this Court by the Constitution.

Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in which the
question of constitutionality or validity of said section had not been squarely raised) do away with the
defendant's right under discussion, it follows that said section 11 diminishes the substantive right of the
defendant in criminal case, and this Court has no power or authority to promulgate it and therefore is
null and void.

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

Petition is therefore granted.

PERFECTO, J., dissenting:

In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, No. L-
1336, we said:

In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not
contravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face
to face." (Section 1 [17], Article III.)

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.

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.

Petition dismissed.

RESOLUTION

March 8, 1949
TUASON, J.:

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

In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, G.R. No.
L-1336: "The constitutional right of an accused to be confronted by the witnesses against him does not
apply to preliminary hearings; nor will the absence of a preliminary examination be an infringement of
his right to confront witness. As a matter of fact, preliminary investigation may be done away with
entirely without infringing the constitutional right of an accused under the due process clause to a fair
trial." We took this ruling to be ample enough to dispose the constitutional question pleaded in the
application for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the subject.

It is contended that section 11 of Rule 108 of the Rules of Court 1 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.

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

As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the
punishment for committing them, as distinguished from the procedural law which provides or regulates
the steps by which one who commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation
is eminently and essentially remedial; it is the first step taken in a criminal prosecution.

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

In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said:

Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may
be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390,
1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U.
S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 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.
While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses in a
preliminary investigation, his right to present his witnesses remains unaffected, and his constitutional
right to be informed of the charges against him both at such investigation and at the trial is unchanged.
In the latter stage of the proceedings, the only stage where the guaranty of due process comes into play,
he still enjoys to the full extent the right to be confronted by and to cross-examine the witnesses against
him. The degree of importance of a preliminary investigation to an accused may be gauged by the fact
that this formality is frequently waived.

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

The motion is denied.

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

FERIA, J., dissenting:

I dissent.

The motion for reconsideration must be granted.

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

First. Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in
a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The
entire rules of evidence have been incorporated into the Rules of Court." And therefore "we can not tear
down section 11 of Rule 108 on constitutional grounds without throwing out the whole Code of
evidence embodied in these rules."

Secondly. Because, "preliminary investigation is not an essential part of due process of law. It may be
suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed
thereunder can not be held to fall within the constitutional prohibition."

Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition.
The difference is somewhat a question of degree" . . . It is difficult to draw a line in any particular case
beyond which legislative power over remedy and procedure can pass without touching upon the
substantive rights of parties affected, as it is impossible to fix that boundary by general condition. . . .
"This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights,
and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the
accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and
unsubstantial manner to his disadvantage."

Before proceeding it is necessary to distinguish substantive law from procedure, for the distinction is not
always well understood. Substantive law is that part of the law which creates, defines, and regulates
rights as opposed to objective or procedural law which prescribes the method of enforcing rights. What
constitutes practice and procedure in the law is the mode or proceeding by which a legal right is
enforced, "that which regulates the formal steps in an action or judicial proceedings; the course of
procedure in courts; the form, manner and order in which proceedings have been, and are accustomed
to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts
through their various 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.
Substantive rights may be created or granted either in the Constitution or in any branch of the law, civil,
criminal, administrative or procedural law. In our old Code of Civil Procedure, Act No. 190, as amended,
there are provisions which create, define and regulate substantive rights, and many of those provisions
such as those relating to guardianship, adoption, evidence and many others are incorporated in the
Rules of Court for the sake of convenience and not because this Court is empowered to promulgate
them as rules of court. And our old law of Criminal Procedure General Orders No. 58 grants the offended
party the right to commence a criminal action or file a complaint against the offender and to intervene in
the criminal prosecution against him, and grants the defendant in the Court of First Instance (except in
the City of Manila) the right to bail, and to a preliminary investigation including his rights during said
investigation, and the rights at the trial, which are now reproduced or incorporated in Rules 106, 108,
110, and 111 of the Rules of Court, except the rights now in question. And all these, and others not
necessary for us to mention, are obviously substantive rights.

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

It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after arrest "is a
rule of evidence and therefore is also procedural." In the first place, the provisions of said section to the
effect that "the defendant, after the arrest and his delivery to the court has the right to be informed of
the complaint or information filed against him, and also to be informed of the testimony and evidence
presented against him, and may be allowed to testify and present witnesses or evidence for him if he so
desires," are not rules of evidence; and in the second place, it is evident that most of the rules of
evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "Rules
of evidence are substantive rights found in common law chiefly and growing out of reasoning,
experience and common sense of lawyers and courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true
that weighing of evidence and the rules of practice with respect thereto form part of the law of
procedure, but the classification of proofs is sometime determined by the substantive law." (U. S. vs.
Genato, 15 Phil., 170, 176.) How can the law on judicial notice, conclusive as well as juris
tantum presumption, hearsay and best evidence rule, parol evidence rule, interpretation of documents,
competency of a person to testify as a witness be considered procedural?
Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on
constitutional grounds without throwing out the whole code of evidence embodied in these Rules," is
evidently wrong, not only for the reason just stated, but because our contention that the defendant can
not be deprived of his right to be confronted with and cross-examine the witness of the prosecution 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.

(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).

The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution, has no application
to the present case, for the question involved therein was the power of Congress to alter the rules of
evidence and procedure without violating the constitutional precept that prohibits the passing of ex post
facto law, while the question herein involved is the power of the Supreme Court to promulgate rules of
pleading, practice and procedure, which diminish the substantive right of a defendant, expressly
prohibited by the same provision of the Constitution that confers upon this Court the power to
promulgate said rules.
(3) The last reason or argument premised on the conclusion that "the distinction between remedy and
'substantive right' is incapable of exact definition;" indeed "the difference is somewhat a question of
degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because, as we have already said in refuting the
majority's first reason, remedy and procedure are two completely different things.

As above defined, substantive law is clearly differentiated from procedural law and practice. But even
assuming arguendo that it is difficult to draw the line in any particular case beyond which the power of
the court over procedure can not pass without touching upon the substantial right of the parties, what
this Court should do in that case would be to abstain from promulgating such rule of procedure which
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.

Besides, depriving an accused of his right to be confronted and cross-examine the witness against him in
a preliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and
arbitrary manner. The testimony of a witness given in the absence of the defendant and without an
opportunity on the part of the latter to cross-examine him is a hearsay evidence, and it should not be
admitted against the defendant in a preliminary investigation that is granted to the latter as a protection
against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an
accused who is innocent and should not be arrested, or if arrested should be released immediately a
short time after his arrest after the preliminary investigation, would have to be held for trial and wait for
a considerable period of time until the case is tried and acquitted after trial by the Courts of First
Instance in provinces on account of the admission of such evidence in the preliminary investigation,
evidence not admissible at the trial.

Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of
the majority reversed or modified in accordance with my dissenting opinion.

PERFECTO, J.:

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

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.

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.

The Lawphil Project - Arellano Law Foundation

Constitution

Statutes
Executive Issuances

Judicial Issuances

Other Issuances

Jurisprudence

International Legal Resources

AUSL Exclusive