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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
October 20, 1948
G.R. No. L-2068
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 crossexamine 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.