Sie sind auf Seite 1von 9

ChanRoblesVirtual Law Library

chanrobles.com

Like

Share

Tweet

Tweet

Share

1 Share

Search

CLICK HERE FOR THE LATEST SUPREME COURT JURISPRUDENCE

Home > ChanRobles Virtual Law Library > Philippine Supreme Court Jurisprudence >

EN BANC
G.R. No. L-2068

October 20, 1948

DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First

Instance of Pampanga, Respondent.


E. M. Banzali for petitioner.
Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L. Mallari
for respondent
TUASON, J.:

chanrobles virtual law library

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

chanrobles virtual law library

According to the memorandum submitted by the petitioner's attorney to the Court of First
Instance in support of his motion, the accused, assisted by counsel, appeared at the
preliminary investigation. In that investigation, the justice of the peace informed him of
the charges and asked him if he pleaded guilty or not guilty, upon which he entered the
plea of not guilty. "Then his counsel moved that the complainant present her evidence so
that she and her witnesses could be examined and cross-examined in the manner and
form provided by law." The fiscal and the private prosecutor objected, invoking section 11
of rule 108, and the objection was sustained. "In view thereof, the accused's counsel
announced his intention to renounce his right to present evidence," and the justice of the
peace forwarded the case to the court of first instance.
chanroblesvirtualawlibrary

chanrobles virtual law library

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

law library

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

chanrobles virtual law library

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

chanrobles virtual law library

Upon the foregoing considerations, the present petition is dismissed with costs against the
petitioner.
Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.
Separate Opinions
FERIA, J., dissenting:
I am sorry to dissent from the decision.

chanroblesvirtualawlibrary

chanrobles virtual law library

chanrobles virtual law library

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

chanrobles virtual law library

The counsel for the accused petitioner filed a motion with the Court of First Instance
praying that the record of the case be remanded to the justice of the peace of Masantol, in
order that the petitioner might cross-examine the complainant and her witnesses in

connection with their testimony. The motion was denied, and for that reason the present
special civil action of mandamus was instituted.
chanroblesvirtualawlibrary

chanrobles virtual law library

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

chanrobles virtual law library

In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and
decide the question of validity or constitutionality of said section 11 in connection with
section 1 of Rule 108, because that question was not raised therein, and we merely
construed the provisions on preliminary investigation or Rule 108. In said case the writer
of this dissenting opinion said:
It may not be amiss to state that, modesty aside, the writer of this dissenting
opinion, then a practising attorney, was the one who prepared the draft of the
Rules of Court relating to criminal procedure, and the provisions on preliminary
investigation in the draft were the same as those of the old law, which gave the
defendant the right to be confronted with and to cross-examine the witnesses for
the prosecution. But the Supreme Court approved and adopted in toto the draft,
except the part referring to preliminary investigation which it modified, by
suppressing said right and enacting, in its stead, the provisions of section 11 of
Rule 108 in its present form. I prefer the old to the new procedure. But I can not
subscribe to the majority decision, which is a judicial legislation and makes the
exercise of the right of a defendant to be confronted, with and cross-examine the
witnesses against him, to depend entirely upon the whim or caprice of a judge or
officer conducting the preliminary investigation.
But now the question of the validity of said section 11, Rule 108, is squarely presented to
this Court for decision, we have perforce to pass upon it.
chanroblesvirtualawlibrary

chanrobles virtual law library

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

chanrobles virtual law library

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

chanrobles virtual law library

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

chanrobles virtual law library

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

chanrobles virtual law library

The fact that the majority of this Court has ruled in the above cited case of Dequito and
Saling Buhay vs. Arellano, that the inferior or justice of the peace courts have discretion to

grant a defendant's request to have the witnesses for the prosecution recalled to testify
again in the presence of the defendant and be cross-examined by the latter, does not
validate said provision; because to make the exercise of an absolute right discretionary or
dependent upon the will or discretion of the court or officer making the preliminary
investigation, is evidently to diminish or modify it.
chanroblesvirtualawlibrary

chanrobles virtual law library

Petition is therefore granted.


PERFECTO, J., dissenting:

chanrobles virtual law library

In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs.
Arellano, No. L-1336, we said:
In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in
a way that will not contravene the constitutional provision guaranteeing to all
accused the right "to meet the witnesses face to face." (Section 1 [17], Article
III.)
chanrobles virtual law library

Consequently, at the preliminary hearing contemplated by said reglementary


section, the defendant is entitled as a matter of fundamental right to her the
testimony of the witnesses for the prosecution and to cross-examine them.
chanroblesvirtualawlibrary

chanrobles virtual law library

Although in such preliminary hearing the accused cannot finally be convicted, he


is liable to endure the ordeal eloquently depicted in the decision, and the
constitutional guarantee protects defendants, not only from the jeopardy of
being finally convicted and punished, but also from the physical, mental and
moral sufferings that may unjustly be visited upon him in any one of the stages
of the criminal process instituted against him. He must be afforded the
opportunities to have the charges against him quashed, not only at the final
hearing, but also at the preliminary investigation, if by confronting the witnesses
for the prosecution he can convince the court that the charges are groundless.
There is no justice in compelling him to undergo the troubles of a final hearing if
at the preliminary hearing the case can be terminated in his favor. Otherwise,
the preliminary investigation or hearing will be an empty gesture that should not
have a place within the framework of dignified and solemn judicial proceedings.
On the strength of the above quoted opinion the opinion should be granted and so we
vote.
chanroblesvirtualawlibrary

chanrobles virtual law library

Petition dismissed.
RESOLUTION
March 8, 1949
TUASON, J.:

chanrobles virtual law library

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

chanroblesvirtualawlibrary

chanrobles virtual law library

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

chanrobles virtual law library

It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13,
Article VIII, of the Constitution. 2 It is said that the rule in question deals with substantive
matters and impairs substantive rights.
chanroblesvirtualawlibrary

chanrobles virtual law library

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

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

chanrobles virtual law library

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is the

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

chanrobles virtual law library

In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court
said:
Expressions are to be found in earlier judicial opinions to the effect that the
constitutional limitation may be transgressed by alterations in the rules of
evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650;
Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri,
107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And there
may be procedural changes which operate to deny to the accused a defense
available under the laws in force at the time of the commission of his offense, or
which otherwise affect him in such a harsh and arbitrary manner as to fall within
the constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507,
2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18
Sup. Ct. Rep., 620. But it is not well settled that statutory changes in the mode
of trial or the rules of evidence, which do not deprive the accused of a defense
and which operate only in a limited and unsubstantial manner to his
disadvantage, are not prohibited. A statute which, after indictment, enlarges the
class of persons who may be witnesses at the trial, by removing the
disqualification of persons convicted of felony, is not an ex post facto law. Hopt
vs. Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep.
417. Nor is a statute which changes the rules of evidence after the indictment so
as to render admissible against the accused evidence previously held
inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct.
Rep., 922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19
L. ed., 573; or which abolishes a court for hearing criminal appeals, creating a
new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed.,
485, 487, 14 sup. Ct. Rep., 570.
Tested by this standard, we do not believe that the curtailment of the right of an accused
in a preliminary investigation to cross-examine the witnesses who had given evidence for
his arrest is of such importance as to offend against the constitutional inhibition. As we
have said in the beginning, preliminary investigation is not an essential part of due process
of law. It may be suppressed entirely, and if this may be done, mere restriction of the
privilege formerly enjoyed thereunder can not be held to fall within the constitutional
prohibition.
chanroblesvirtualawlibrary

chanrobles virtual law library

While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses
in a preliminary investigation, his right to present his witnesses remains unaffected, and
his constitutional right to be informed of the charges against him both at such
investigation and at the trial is unchanged. In the latter stage of the proceedings, the only
stage where the guaranty of due process comes into play, he still enjoys to the full extent
the right to be confronted by and to cross-examine the witnesses against him. The degree
of importance of a preliminary investigation to an accused may be gauged by the fact that
this formality is frequently waived.
chanroblesvirtualawlibrary

chanrobles virtual law library

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

chanrobles virtual law library

The motion is denied.


Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur.
FERIA, J., dissenting:
I dissent.

chanroblesvirtualawlibrary

chanrobles virtual law library

The motion for reconsideration must be granted.

chanroblesvirtualawlibrary

chanrobles virtual law library

chanrobles virtual law library

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

First. Because "preliminary investigation is eminently and essentially remedial; it is the


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

Secondly. Because, "preliminary investigation is not an essential part of due process of


law. It may be suppressed entirely, and if this may be done, mere restriction of the
privilege formerly enjoyed thereunder can not be held to fall within the constitutional
prohibition."
chanrobles virtual law library

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

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

chanrobles virtual law library

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

chanrobles virtual law library

(1) As to the first argument, the premise "the preliminary investigation is eminently and
essentially remedial is not correct. Undoubtedly the majority means to say procedural, in
line with the conclusion in the resolution, because remedial law is one thing, and
procedural law is another. Obviously they are different branches of the law. "Remedial
statute" is "a statute providing a remedy for an injury as distinguished from a penal
statute. A statute giving a party a mode of remedy for a wrong where he had none or a
different one before. . . . Remedial statutes are those which are made to supply such
defects, and abridge such superfluities in the common law, as arise either from the general
imperfections of all human law, from change of time and circumstances, from the mistakes
and unadvised determination of unlearned (or even learned) judges, or from any other
cause whatsoever." (Black's Law Dictionary, third edition, pp. 1525, 1526.)
chanrobles virtual law library

It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant
after arrest "is a rule of evidence and therefore is also procedural." In the first place, the
provisions of said section to the effect that "the defendant, after the arrest and his delivery
to the court has the right to be informed of the complaint or information filed against him,
and also to be informed of the testimony and evidence presented against him, and may be
allowed to testify and present witnesses or evidence for him if he so desires," are not rules
of evidence; and in the second place, it is evident that most of the rules of evidence, if not
all, are substantive laws that define, create or regulate rights, and not procedural. "Rules
of evidence are substantive rights found in common law chiefly and growing out of
reasoning, experience and common sense of lawyers and courts." (State vs. Pavelich, et

al., 279 P., 1102.) "It is true that weighing of evidence and the rules of practice with
respect thereto form part of the law of procedure, but the classification of proofs is
sometime determined by the substantive law." (U. S. vs. Genato, 15 Phil., 170, 176.) How
can the law on judicial notice, conclusive as well as juris tantum presumption, hearsay and
best evidence rule, parol evidence rule, interpretation of documents, competency of a
person to testify as a witness be considered procedural?
chanrobles virtual law library

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

chanrobles virtual law library

(2) With respect to the second argument or reason, it is true that the preliminary
investigation as provided for in the General Orders, No. 58, as amended, is not an
essential part of due process of law, because "due process of law" is not iron clad in its
meaning; its does not necessarily mean a particular procedure. Due process of law simply
requires a procedure that fully protects the life, liberty and property. For that reason the
investigation to be made by the City Fiscal of the City of Manila under Act No. 612, now
section 2465 of the Administrative Code, before filing an information, was considered by
this Court as sufficient to satisfy the due process of law constitutional requirement (U. S.
vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is also true that
we have already and correctly held that: "The law having explicitly recognized and
established that no person charged with the commission of a crime shall be deprived of his
liberty or subjected to trial without prior preliminary investigation (provided for in General
orders, No. 58, as amended) that shall show that there are reasonable grounds to believe
him guilty, there can be no doubt that the accused who is deprived of his liberty, tried and
sentenced without the proper preliminary investigation having been made in his regard, is
convicted without the process of law," (United States vs. Banzuela, 31 Phil., 564).
chanroblesvirtualawlibrary

chanrobles virtual law library

The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution,
has no application to the present case, for the question involved therein was the power of
Congress to alter the rules of evidence and procedure without violating the constitutional
precept that prohibits the passing of ex post facto law, while the question herein involved
is the power of the Supreme Court to promulgate rules of pleading, practice and
procedure, which diminish the substantive right of a defendant, expressly prohibited by the
same provision of the Constitution that confers upon this Court the power to promulgate
said rules.
chanroblesvirtualawlibrary

chanrobles virtual law library

(3) The last reason or argument premised on the conclusion that "the distinction between
remedy and 'substantive right' is incapable of exact definition;" indeed "the difference is
somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because,
as we have already said in refuting the majority's first reason, remedy and procedure are
two completely different things.
chanroblesvirtualawlibrary

chanrobles virtual law library

As above defined, substantive law is clearly differentiated from procedural law and
practice. But even assuming arguendo that it is difficult to draw the line in any particular
case beyond which the power of the court over procedure can not pass without touching
upon the substantial right of the parties, what this Court should do in that case would be
to abstain from promulgating such rule of procedure which many increase, diminish or
modify substantive right in order to avoid violating the constitutional prohibition above
referred to. Because as this Supreme Court is not empowered by the Constitution to
legislate on or abrogate substantive rights, but only to promulgate rules of pleading,
practice and procedure which "shall not diminish, increase or modify substantive rights,"
this Court can not step on them in making the rules, and the Constitution must be
presumed not to tolerate nor expect such incursion as would affect the substantive rights
of the accused in any manner.
chanroblesvirtualawlibrary

chanrobles virtual law library

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

chanrobles virtual law library

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

chanrobles virtual law library

We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration
should be granted.
Endnotes:
TUASON, J.:
1

Rights of defendant after arrest. - After the arrest of the defendant and
his delivery to the court, he shall be informed of the complaint or information
filed against him. He shall also be informed of the substance of the testimony
and evidence presented against him, and, if he desires to testify or to present
witnesses or evidence in his favor, he may be allowed to do so. The testimony of
the witnesses need not be reduced to writing but that of the defendant shall be
taken in writing and subscribed by him.
chanroblesvirtualawlibrary

chanrobles virtual law library

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.

CLICK HERE FOR THE LATEST SUPREME COURT JURISPRUDENCE


1901 1902 1903 1904 1905 1906 1907 1908 1909 1910 1911 1912 1913 1914 1915 1916 1917 1918 1919 1920
1921 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931 1932 1933 1934 1935 1936 1937 1938 1939 1940
1941 1942 1943 1944 1945 1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960
1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980
1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

FEATURED DECISIONScralaw

Main Indices of the Library --->

Go!

Search for www.chanrobles.com

Search

QUICK SEARCH

1901 1902 1903 1904 1905 1906 1907 1908 1909 1910 1911 1912 1913 1914 1915 1916 1917 1918 1919 1920
1921 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931 1932 1933 1934 1935 1936 1937 1938 1939 1940
1941 1942 1943 1944 1945 1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960
1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980

1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

Copyright 1998 - 20161998 - 2016 ChanRoblesPublishing Company| Disclaimer | E-mailRestrictions

ChanRoblesVirtual Law Library

| chanrobles.com

RED