ChanRobles™Virtual Law Library™ |

chanrobles.com™

Like 1 Tweet Share 1

Custom Search 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 1 of 17
 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 2 of 17
 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: chanrobles virtual law library

I am sorry to dissent from the decision. chanroblesvirtualawlibrary 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 3 of 17
 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 cross-
examine 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 4 of 17
 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 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. 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 5 of 17
 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 6 of 17
 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 7 of 17
 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 8 of 17
 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 9 of 17
 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.

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 10 of 17
 FERIA, J., dissenting: chanrobles virtual law library

I dissent. chanroblesvirtualawlibrary chanrobles virtual law library

The motion for reconsideration must be

granted. chanroblesvirtualawlibrary chanrobles virtual law library

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: 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 11 of 17
 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 12 of 17
 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 13 of 17
 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 14 of 17
 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 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. 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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 15 of 17
 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

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.

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

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 16 of 17
 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 - 2018 ChanRoblesPublishing Company| Disclaimer | E-mailRestrictions ChanRobles™Virtual Law Library ™ | chanrobles.com™ RED

http://www.chanrobles.com/scdecisions/jurisprudence1948/oct1948/gr_l-2068_1948.php 2018/08/05 17C09

Page 17 of 17