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[No. L-2068. October 20, 1948]

DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G.

LUCERO, Judge of First Instance of Pampanga,

respondent.

CRIMINAL PROCEDURE; PRELIMINARY

INVESTIGATION ; RIGHT OF CONFRONTATION NOT

APPLICABLE TO PRELIMINARY INVESTIGATION.·The

constitutional right of an accused to be confronted by thewitnesses 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 tight of

an accused under the due process clause to a fair trial.

(Dequito and Saling Buhay vs. Arellano, L-1336, May 28,

1948.)

CRIMINAL PROCEDURE, RULES OF; SECTION 11 OF

RULES 108 AS AN ADJECTIVE LAW.·Section 11 of Rule

108, like its predecessors, is an adjective law and not a

substantive law or substantive right.

ID.; SUBSTANTIVE LAW AND ADJECTIVE LAW,

DEFINED AND DISTINGUISHED.·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

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VOL. 81, OCTOBER 20, 1948 641


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Bustos vs. Lucero

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, whichprescribes the method of enforcing rights or obtains redress

for their invasion.

ID.; ID.·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.

ID.; PRELIMINARY INVESTIGATION AS REMEDIAL IN

NATURE.·Preliminary investigation is eminently and

essentially remedial; it is the first step taken in a criminal

prosecution.

ID. ; SECTION 11 OF RULE 108 AS PROCEDURAL.·As a

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

Evidence-which is „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 enf orced and redress obtained, and,

in criminal law, a law transgressor is punished. Criminal

procedure refers to pleading, evidencea nd practice. (State

vs. Capaci, 164 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.

ID.; PRELIMINARY INVESTIGATION; CURTAILMENT

OF ACCUSEDÊS RIGHT TO CROSS-EXAMINE

WITNESSES, EFFECT OF.·The curtailment of the right of

an accused in a preliminary investigation to crossexamine

the witnesses who had given evidence for his arrest is not of

such importance as to offend against the constitutional


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inhibition. 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.

ID.; ID.; DENIAL OF ACCUSED TO CROSS-EXAMINE

WITNESSES, DUE PROCESS OF LAW IS NOT

INFRINGED BY.·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

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642 PHILIPPINE REPORTS ANNOTATED

Bustos vs. Lucero

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.

WORDS AND PHRASES; „REMEDY" AND

„SUBSTANTIVE RIGHT" EX-PLAINED AND

DISTINGUISHED.·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 legislativepower 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.

CONSTITUTIONAL LAW; SUPREME COURT; EXTENT

AND SCOPE OF THE POWER TO PROMULGATE RULES

OF PLEADING AND PRACTICE.·That the Supreme


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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 def ense,

but operates only in a limited and unsubstantial manner to

his disadvantage. For the courtÊs power is not merely to

compile, revise or codify the rules of procedure existing at

the time of the ConstitutionÊs 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.

ORIGINAL ACTION in the Supreme Court. Certiorari and

mandamus.

The facts are stated in the opinion of the court. 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 thatthe record of the case be remanded to the justice of the

peace court of Masantol, the court of origin,

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Bustos vs. Lucero

in order that the petitioner might cross-examine thecomplainant 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

petitionerÊs attorney to the Court of First Instance in


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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 andcrossexamined 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 accusedÊs 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 courtfor 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 accusedÊs

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 complaintÊs

objection, to recall the complainant and her witnesses at

the preliminary investigation so that they might be

crossexamined, we sustained the justice of the peaceÊs

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 defendantÊs right in the preliminary

inves-

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Bustos vs. Lucero

tigation, 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.‰


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But we made it clear that the „defendant can not, as a

matter of right, compel the complainant 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 preliminaryhearings; nor will the absence of a preliminary examination

be an infringement of his right to confront witnesses.‰ As a

matter of f act, 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 thecomplainant and his witnesses to testify anew.

Upon the foregoing considerations, the present petition

is dismissed with costs against the petitioner.

Moran, C.J., Parás, Pablo, Bengzon, and Briones, JJ.,

concur.

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

petitionerÊs motion invoking section 11, Rule 108, and the

objection

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Bustos vs. Lucero

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 investigationprovided 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 f orwarded to the Court of First

Instance, counsel f or the petitioner filed a motion with said

court to remand the case to the Justice of the Peace of

Masantol ordering the latter to make said preliminary

investigation. His motion having been denied, the

petitioner has filed the present action in which he squarely

attacks the validity of the provision of section 11, Rule 108,on the ground that it deprives him of the right to be

confronted with and cross-examine the witnesses for the

prosecution, contrary to the provision of section 13, Article

VIII, of the Constitution.

In the case of Dequito and Saling Buhay vs. Arellano,

No. L-1336, we did not discuss and decide the question of

validity or constitutionality of said section 11 in connection

with section 1 of Rule 108, because that question was not

raised therein, and we merely construed the provisions on

preliminary investigation of Rule 108. In said case thewriter 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

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Bustos vs. Lucero

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 andadopted 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 .1.08 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 argument to show that

the right granted by law upon a defendant to be confronted

with and cross-examine the witnesses for the prosecution

in preliminary investigation as well as in the trial of thecase 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 a


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substantive right because by exercising it, an accused

person may show, even if he has no evidence in his

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Bustos vs. Lucero

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 alwaysentails.

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 aconstitutional 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 defendantÊs righ

tunder discussion, it follows that said section 11 diminishesthe 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 defendantÊs request to have the


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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.648


Bustos vs. Lucero

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 Âto meet the

witnesses face to face.Ê (Section 1 [17], Article III.)

„Consequently, at the preliminary hearing contemplated by said

reglementary section, the defendant is entitled as a matter of

fun.damental right to hear 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 theopportunities 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.


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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 petition

should be granted and so we vote.

Petition dismissed.

RESOLUTION ON A MOTION FOR

RECONSIDERATION

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

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Bustos vs. Lucero

the witnesses against him does not apply to preliminaryhearings; 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

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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

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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

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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 rulesconcerning 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.

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Bustos vs. Lucero

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


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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 alsoprocedural. Evidence·which is „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 downsection 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, L. ed., 648, 650; Cummings vs. Missouri,

4 Wall. 277, 826, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U.S.

221, 228, 232, 27 L. ed., 507, 508, 510, 2 Sup. Ct. Rep., 443. And

there may be

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Bustos vs. Lucero

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.


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Rep., 620. But it is now 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 Âboth 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 thewitnesses against him.

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Bustos vs. Lucero


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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 inany 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., 11020 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 def ense, but operates only in a limited and unsubstantialmanner to his disadvantage. For the CourtÊs power is not

merely to compile, revise or codify the rules of procedure

existing at the time of the ConstitutionÊs 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., Parás, 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:


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VOL. 81, OCTOBER 20, 1948 653

Bustos vs. Lucero

First. Because „preliminary investigation is eminently andessentially 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 theprivilege formerly enjoyed thereunder can not be held to

fall within the constitutional prohibition.‰

Lastly. Because, „the distinction between remedy and

Âsubstantive rightÊ 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 thelaw 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


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procedure in courts; the form, manner and order in which

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Bustos vs. Lucero

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 stages

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 & LawrenceÊs Law

Dictionary; Anderson Law Dictionary; BouvierÊs Law

Dictionary.

Substantive rights may be created or granted either inthe 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 f or 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 theoffended 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, andothers not necessary for us to mention, are obviously

substantive rights.

(1) As to the first argument, the premise „that

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


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procedural law is another. Obviously they are different

branches of the law. „Remedial statute‰ is „a statute

providing a remedy for

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VOL. 81, OCTOBER 20, 1948 655 Bustos vs. Lucero

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 def ects, 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 unadviseddetermination of unlearned (or even learned) judges, or

from any other cause whatsoever.‰ (BlackÊs 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 inf ormed of the testimonyand 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 thatweighing of evidence and the rules of practice with respect

thereto form part of the law of procedure, but the

classification of proof fs 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


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person to testify as a witness be considered procedural?

Theref ore, 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

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Bustos vs. Lucero

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 in 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

crossexamine 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; it does not necessarily mean a

particular procedure. Due process of law simply requires a

procedure that fully ully protects the lif e, 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


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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

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VOL. 81, OCTOBER 20, 1948 657

Bustos vs. Lucero

in his regard, is convicted without due 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

Âsubstantive rightÊ 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 majorityÊs first reason, remedy

and procedure are two completely different things.

As above defined, substantive law is clearlydifferentiated 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


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rule of procedure which may 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

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Teves vs. Sindiong

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 apreliminary 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 inprovinces 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.


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PERFECTO, J.:

We dissent. Our opinion in the Dequito case still stands,

The motion for reconsideration should be granted.

Motion denied.

_________________

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